Foster v. McDonald

3 Ala. 34 | Ala. | 1841

ORMOND, J.

It is the settled law, that when the holder of a bill and the party sought to be charged on it as drawer or endorse!’, reside in the same place, notice must be given personally, of the dishonor of the bill. Stephenson v. Primrose, 8th Porter 155, and cases there cited. . In this case, personal notice was not given to the indorser, of the dishonor of the bill, but he is sought to be charged on a notice, placed in the post-office at Tuskaloosa, in which place he resided.

To ascertain then whether this notice was sufficient, we must inquire whether the holder resided in the same place; if he did, on the authority of the case just cited, the notice would not be sufficient.

The declaration alleges that the bill was endorsed to the plaintiff. The bill itself is set out in the bill of exceptions, taken on the trial, with its indorsements, but neither upon that, nor upon the bill, as recited in the protest, is the name of the plaintiff found, the last endorsement being filled up to the order ofE. F. Comegys, cashier, by whose order, and as holder for the Bank of the State of Alabama, it is stated in the protest to have been protested for non-payment. The legal inferrence from this testimony is, that the bank was the holder of the bill at the time of the protest, and being, as we judicially know, located at the same place with the residence of the plaintiff in error, he was entitled; upon the dishonor of the bill, to a personal notice. The notice, therefore, which was given to him, by putting a letter in the post-office, directed.to him, was not sufficient.

It must be presumed that the plaintiff became the holder of the bill, since its dishonor; but it would have been competent for him to prove that he was the holder of the bill before its maturity, and that the bank was merely his factor or agent. If such were the-fact, and the holder did not reside in Tuska-loosa, the notice of the non-payment of the bill might have been given through the post-office, to the holder, and a notice by him to the endorser, of the dishonor of the bill, by the next mail after his receipt of notice, would have been sufficient to charge him. It is true, a notice by the agent or notary, would have been sufficient to charge the plaintiff in error, if made in the mode which the Iaw; requires, but an agent or factor as such, is not required to do more, than to inform his principal of the dishonor of the bill.

Thus, in Colt v. Noble, 5 Mass. Rep. 167; where the holder of a bill drawn on London, lived in Madras, in the East Indies, and the indorser at Portsmouth, in the United States, it was held, that the agents of the holder in London, upon the dishonor of the bill, were not bound to give notice of the protest to the indorser, but might return the bill, with the protest, to the holder whose duty it would be to give seasonable notice to the indorser : See also to the same effect, State Bank v. Ayres, 2 Halstead, 130; Haynes v. Birks, 3 Bos. & Pul. 599; and Tunno v. League, 2 Johns. Cases, 1.

If however, it should hereafter appear, that from the residence of the holder at a distance from this place, notice of the dishonor of the bill could not have reached the plaintiff in error, as soon as the informal notice actually given by the notary, through the post-office, it might be a question whether the notice actually given, was not sufficient; but as that point is not presented on the récord, we express no opinion upon it.

Let the judgment be reversed and the cause remanded.