Bryden v. Bryden — 11 Johns. 187

Majority

p. 187

W. Bryden against J. Bryden.

NEW-YORK,

May, 1814.

Headnote

what is rea ^Tti'e dishot ,nour of.» Mi question of law whe/the facta ¡“becomes gureiy a. qdeswhersTthe* “^but ?f exchange both resided 11* the same city*. to°tbf "ntet thre/Tday^ at ter advice ot; the dishonour 0f the mu, was 1'‘"

THIS was an action of assumpsit brought against the defendant, as endorser of a bill of exchange. The cause was tried before the Chief Justice, at the New-York sittings, in November, 1813.

The bill of exchange was dated at Baltimore, the 23d July, 1799, drawn by C. F. C. Busche on J. A- and D. IT. Rucker, Esqs. of London, for 120 pounds sterling, at sixty days’ sight, in favour of William Magruder, who endorsed it to the defendant, who endorsed it to the plaintiff. The first of the set of exchange which had been protested, was lost with the vessel in which it *■ 7 was sent, in its passage from London to Baltimore, m the autumn of the year 1799.

It appeared by a copy of the protest for non-acceptance, taken from the books of the notary, in July, 1804, by another , . . , , . notary, (the notary who made the protest being since dead,) that the bill was regularly protested for non-acceptance the 14th September, 1799 $ and it also appeared by a copy of the protest for non-payment, that it had been regularly protested for nonpayment on the 16th November, 1799.

To prove notice to the defendant, as endorser of the bill, of die non-acceptance of it, the plaintiff’s counsel read the deposition of William Taylor, residing in Baltimore, taken under a commission issued in the cause. The witness stated that he received the bill in question from W. Bryden, the plaintiff, in payment of a debt, and transmitted it to his correspondent in London. That some time in the month of November, 1799, the witness received a letter from his correspondent advising him that the bill had not been accepted; and within three days after the receipt of the letter, the witness himself gave verbal notice thereof to the defendant, who resided at the Fountain Inn tavern in Baltimore; that the witness also directed William O. Payne, who was then a clerk in his employment, to give notice to the defendant of the non-acceptance of the bill, and the defendant afterwards acknowledged to the witness that he had received such notice from his clerk; that his clerk had been dead for several years, and that the. witness was the holder ?of the bill at the time the notice ef the non-acceptance thereof

p. 188

was so given to the defendant; the witness did not recollect whether the notice given by Payne was verbal or written, but the purport of it rvas to inform the defendant of the non-acceptance °f the bill, and that the witness, as holder, looked to him for the payment of it.

On this evidence, the defendant’s counsel moved for a non-suit, on the ground that due notice of the non-acceptance of the bill had not been proved, but the motion was overruled by the Chief Justice, who, in his charge to the jury, stated that it was for them to decide, from the testimony and the circumstances of the case, whether or not there had been reasonable and due diligence in giving notice to the defendant of the dishonour of the bill; and that if they should be of that opinion, and to which opinion he inclined, the plaintiff was entitled to recover. The jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial.

T. V. W. Graham, for the defendant.

Johnson, contra.

He cited Chitty on Bills, (2d edit.) 162—- 166. 12 East, 433. 1 Term Rep. 168. Doug. 514.

delivered the opinion of the court. Taylor, the holder of the bill, and the defendant, the endorser, both resided in the" city of Baltimore. The only evidence of the non-acceptance of the bill is the deposition of Taylor, who states that within three clays after the receipt of the letter advising him of the non-acceptance of the bill, he gave verbal notice thereof to the defendant. He also directed Payne, his clerk, who is since dead, to give notice to the defendant, who afterwards acknowledged to Taylor that he had received such- notice from Payne ; but when Payne • gave the notice does not appear. Tt is presumable, however, that it was after the notice given by Taylor. '

The question then is, whether notice to an endorser, given within three days after advice is received of the dishonour of a bill, where the parties reside in the same place, is reasonable notice. What is a reasonable notice in such case, is a mixed question of law and fact; but when the facts are ascertained, it becomes purely a question of law. This results from the necessity of having some fixed legal standard, by which men may not .only know the law, but be protected by it. This principle-is

p. 189

~teitied in the Engtis1~ courts. (Kyd on Bills, (3d edit.) 127. an~ the cases cited.) In the case of Tindali v. Brown, (1 Term Rep. 167.) a bill was payable on the 5th October. The holder called on that day, ai~d on the 6th and 7th, on the acceptor. and was amused by fair promises. On the 7th October he gave no~ tice to the endorser, the parties living within 20 minutes' walk. The court held the notice too late, and, to enforce the law, granted a third trial. We have always required the earliest notice of the protest of a bill for non.acceptance, or non~pay~ ment.

The Chief Justice submitted the question of law and fact to the jury, with an intimation in favour of the plaintiff’s right to recover, when, in my judgment, he ought to have nonsuited the plaintiff, for not proving notice to the defendant, within a reasonable time. The transaction, it is true, is stale, and the de- . fendant has not pleaded the statute of limitation^; but the plaintiff can derive no benefit from these considerations. This laches ought not to work any prejudice to the .defendant, eir create any presumptions against him. There must bé' a new trial, Aíiá the costs are to abide tite event of the suit.

New trial granted.