15 Md. 150 | Md. | 1860
delivered the opinion of this court.
This is an action of assumpsit by the endorsee against the ■drawer of a bill of exchange. The questions for consideration relate to the notice of dishonor of the bill; and these are: 1st, whether such notice, if in due time, from the acceptor to the drawer, binds the latter in an action against him? 2nd, whether the letter in this case is not sufficient, notwithstanding the imperfections of the copy? 3rd, whether there }S evidence that the letter was mailed?
Treating the first of these propositions with reference to the purposes for which the law requires notice to parties to bills of exchange, there would seem to be no reason to doubt the sufficiency of notice from the acceptor. A prudent man would need no more authoritative information than a letter from the party, primarily liable, that, being due and payment demanded, the bill had been dishonored. It was once held that no party could give a valid notice, unless he Avas the holder at time. Tindal vs. Brown, 1 Term Rep., 167. Rut this doctrine after having been follotved in other cases (Ex-parte, Barclay, 7 Ves,, 597; Stewart vs. Kennett, 2 Camp,, 177) was expressly overruled in the case of Chapman vs. Keane, 3 Adol. & Ellis, 193, (30 Eng. C. L. Rep., 69,) in which most of the preAÚous decisions Avere retdeAved. Nothing can be more emphatic than the language of Lord D.epman, in pronouncing judgment. After referring to Tindal
But it is contended here, that the notice must come from some party to the bill, who can, by receiving payment from the party notified, give him an immediate remedy on the bill, and that, as the acceptor does not hold the bill, and cannot give such remedy, the doctrine of the above case does not apply. It is true that it was so decided in Stewart vs. Kennett, 2 Camp., 177, and the same, perhaps, may be inferred from oilier cases; but, we cannot doubt that all such were virtually overruled by Chapman vs. Keane; as well as by other decisions. In Jameson vs. Swinton, 2 Camp., 373, where the notice was not given by the holder of the bill, but by his immediate endorser, who had received notice, the court said: “The drawer or endorser is liable to all subsequent endorsers, if he had due notice of the dishonor of the liill from any person who is a party to it. Such a notice must serve all the purposes for which the giving of notice is required. The drawer or endorser is authoritatively informed that the bill is dishonored; he is enabled to take it up, if he pleases, and may immediately proceed against tile acceptor or prior endorsers.” There is, besides, express authority ontbe very question before us. In Shaw vs. Croft, M. S., 1793, cited in Chilly on Bills, 527, Lord Kenyon lield, that notice by the' acceptor to the drawer was sufficient; and the
We think, however, that the evidence offered for the purpose of showing that the letter had been mailed, was not legally sufficient. The fact was to be found by the jury from the custom prevailing in the counting-room of the writer; but compliance with the custom had not been fully proved. The person whose duty it was to deposit letters in the post-office should have been called, or his absence accounted for. A similar question arose in Bell vs. Hagerstown Bank, 7 Gill, 216, where the law was fully discussed. We perceive no sufficient ground for applying different rules to banks and commercial houses. The object here is, to arrive at a particular fact, not by express proof, that the very thing was done, but by a train of circumstances from which the inference of the fact was to be drawn, and we think there ought to bo no defect ill the chain of evidence. The case of Flack vs. Green, 3 G. & J., 474, cannot serve the appellant, as is explained in Bell vs. Hagerstown Bank.
.It follows, as the result of these views, that the letter was properly admitted in evidence; but, as there was not sufficient proof of its having been sent to the office, the second prayer, which embraces that point, was improperly refused. The ruling of ¡be court below on the third, fourth and fifth .prayers, was also correct. The third and fourth required .a
Judgment reversed and procedendo ordered.