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of contract,

been determined that secondary evidence may be given of a written 4thly. Evinotice of the dishonour of a bill, without notice to produce such dence writing. (519) So a copy of a letter containing notice of the dishonour the breach of a bill, is admissible, without notice to produce the original, and proof and other that duplicate notices of the dishonour of a bill were written, and that circumstana letter was delivered to the defendant upon the dishonour of a bill, to- ces to susgether with proof of notice to produce the letter so delivered, as con- tain the actaining notice of dishonour, is evidence, on default of production, that the defendant had notice; and proof of a letter from the defendant, in

of the letter could be received without a notice to produce it. Call it a notice, or by any other name, it was still a letter, and must be proved as any other written paper.

Langdon v. Hulls, 5 Esp. Rep. 156. Assumpsit on a bill of exchange drawn by the defendant in his own favour on one Pugh for 50%, two months after date, accepted by Pugh, and indorsed by the defendant to the plaintiff. The plaintiff having proved the acceptance and handwriting of the defendant to the indorsement, then proved that the bill, when due, was presented for payment at Pugh's house, and that it was not then paid. To prove the notice to the defendant as the drawer of the non-payment by the acceptor, the plaintiff proved, by the notary's clerk who presented the bill, that he had left word at the defendant's house that the bill had not been paid, the plaintiff also proved that his attorney, by his directions, had written a letter to the defendant, informing him of the non-payment of the bill by Pugh. It becoming necessary to prove this notice so given by the plaintiff's attorney by letter to the defendant, the attorney was called. No notice had been given to produce this letter, but he having stated that he had written such a letter, was proceeding to state the notice of the non-payment as mentioned in the letter, of which letter he had a copy, when it was objected that evidence of the contents of the letter could not be given, as no notice had been given to produce it. It was answered, that the letter itself was a notice, and that it had been so decided that notice to produce a notice was not necessary, and the case of Jory v. Orchard, 2 Bos. & Pul. 39, was cited, as in point. It was contended by the defendant, that notice of the non-payment of the bill had not been given in due time, and that the letter had not been written until several days after the time for regular notice had expired, and it therefore became important to ascertain the exact time when it was written. Lord Ellenborough said, that notice of the dishonour of a bill of exchange, by letter, was certainly good evidence, and had been so decided, but that there were other

circumstances besides the mere fact of notice, which were necessary to give effeet to it, so as to entitle the plaintiff to recover. These were the date and the time when it was sent, which were material, for notice of the dishonour was not sufficient unless given in the time required in the case of bills of exchange. To ascertain the date of the post-mark might be material, he was therefore of opinion that the plaintiff could not give evidence of the contents of the letter, not having given notice to produce it, and that upon that evidence the plaintiff could not recover. The plaintiff then proved a subsequent admission by the defendant that he had notice, and had a verdict.

Ackland v. Pearce, 2 Campb. 601. Phil. Evid. 3d ed. 395.

Ackland v. Pearce, 2 Campb. 601.Action against drawer of a bill. The witness called to prove notice of the dishonour of the bill said, that on the day it became due, he left a written notice of its having been dishonoured at the defendant's house. Le Blanc, J. after argument, ruled, that the secondary evidence of the contents of this notice might be given without a notice to produce it, and compared it to a notice to quit.

PRoberts v. Bradshaw, 1 Stark. 29.Hetherington v. Kemp, 4 Campb. 194.

Roberts v. Bradshaw, 1 Stark. 28. Action on a bill of exchange by the indorsee against the drawer. In order to prove notice of the dishonour, the counsel for the plaintiff called a clerk of the plaintiff's, who stated, that on the 2d of February, the day on which the bill had been dishonoured, his master gave him two papers to compare with each other, one of which the witness now produced, and purported to be a notice of the dishonour of the bill in question. Topping, for the defendant, objected, that this could not be read without proof of notice to produce that which had been so delivered, but Lord Ellenborough, C. J. was of opinion, that a letter acquainting a party with the dishonour of a bill, was in the nature of a notice, and that it was unnecessary to prove a notice to produce such a letter. Upon further examination the witness stated, that upon the day

(519) See Lindenberger v. Beall, 6 Wheat. 104. S. P.

tion.

4thly. Evi- which he acknowledged the receipt of a letter from the holder of a dence of named date (being the proper time for giving notice,) but without referof contract, ring to its contents, would afford presumptive evidence of the receipt & other cir- by the party of a regular notice.

-the breach

cumstances to sustain the action.

In general, on proof of notice of the dishonour of a bill or note having been given, it will suffice to show, that a letter, containing information of the fact, and properly directed, was put in the proper post-office, or left at the defendant's house. In civil cases, the post-mark upon the letter seems to be evidence of the time and place when it was put into the post-office.

Proof of having sent a notice or other paper by the post, has generally been considered in mercantile transactions to be sufficient proof of notice to the party to whom it was directed, and this on a principle of general convenience. A question has sometimes arisen as to the requisite proof of the fact of sending by the post. In one case," where it became necessary to prove that a license to trade had been sent by the plaintiff to A. B., it was proved to be the invariable course of the plaintiff's office, that the clerk, who copys a license, sends it off by the post, and writes on the copy a memorandum of his having done so; a copy of the license in question was produced from the plaintiff's letter-book, in the hand-writing of a deceased clerk, who had written a memorandum, stating, that the original had been sent to A. B.; and a witness, acquainted with the plaintiff's mode of transacting business, swore, that he had no doubt that the original had been sent according to the statement in the memorandum; this evidence was held to be sufficient. In another case relating to a bill, where the question was, whether the defendant had received notice of the dishonour of a bill of exchange, it was proved, that on the day after the bill became due, the plaintiff wrote a letter, addressed to the defendant, stating that it had been dishonoured; but this letter was put

that the paper delivered had been a perfect blank, or contained matter wholly uneonnected with the dishonour of the bill, you night have produced it, and shown the fact to be so, since it is evident what letter was the object of the plaintiff's notice. This is a the first time the indentity of such a letter has been so minutely scrutinized and the proof might, in many instances, be attended with great difficulty, as where letters, after being written, are placed upon the ta ble, it might afterwards be exceedingly difficult to identify them with those afterwards put into the post-office. Verdict for the plaintiff. In the ensuing Term the court refused a rule nisi for a new trial. 9 Hetherington v. Kemp, 4 Campb.

after he had compared the two papers, he
carried a letter from the plaintiff to the de-
fendant, but did not know the contents.
Lord Ellenborough was of opinion that this
was not sufficient evidence. The plaintiff
then proved the service of a notice on the
defendant, calling upon him to produce
letter from the plaintiff, giving him notice
of the dishonour of the bill mentioned in
the declaration. The Attorney-general
contended that this was sufficient evidence
to go to a jury, that the original had been
sent, and that it lay upon the defendant to
show, by producing it, that the letter pro-
ved to have been delivered on the 3d of
February, was nothing more than an invi-
tation to dinner, or something else equally
unconnected with the dishonour of the bill
in question. Topping.-No answer has
been given to the objection; a notice is of
no avail to warrant the reading of a copy,
unless the party be proved to have been in
possession of the original; on the contrary,
the notice itself assumes the fact of posses-
sion. Lord Ellenborough, C. J.-I think,
certainly, that there is a looseness in this
evidence, and you may afterwards move
the court upon it. Supposing, however,

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of the breach

down on a table, where according to the usage of his counting-house, 4thly. Eviletters for post were always deposited, and that a porter carries them dence from thence to the post office; but the porter was not called, and there of contract, was no evidence as to what had become of the letter after it was put and other down upon the table. A notice to produce the letter had been served circumstanupon the defendant. It was contended for the plaintiff, that this was ces to sus

tain the ac

good prima facie evidence that the letter had been sent by the tion. Lord held, that some evidence be that the letter had been taken from the table in the counting-house 409 ] and put in the post-office. If the porter had been called, and if he had said, that although he had no recollection of this particular letter, he invariably carried to the post-office all the letters found upon the table, this might have been sufficient; but it was not sufficient to give such general evidence of the course of business in the plaintiff's count. ing-house.(522)

The plaintiff, however, may prove facts to excuse his neglect to snake a due presentment on a protest in the case of a foreign bill, or to give notice of non-acceptance or non-payment, as that the defendant when drawer, had no effects in the hands of the drawee, from the time it was drawn until it became due.

So proof of a payment of part, or a promise to pay after full notice of the laches of the holder, we have seen, dispenses with the necessity for proof in an action against the drawee of a due presentment, protest, and notice, and has been considered as admitting all these facts, as well the right of the holder to sue; and the same evidence suffices in an action against an indorser ; though it has recently been con

y Ante, 198 to 215.

2 Ante, 233 to 540, where the cases establishing and qualifying this rule are collected; and see Greenway v. Hindley, 4 Campb. 52. Lundie v. Robertson, 7 East, 231. Potter v. Rayworth, 13 East,

17.

a Taylor v. Jones, 2 Campb. 105.

Taylor v. Jones, 2 Campb. 105. Action against the defendant as indorser of a promissory note, due May 5th, 1805. The plaintiff proved the defendant's indorsement; and also that in the year

1817, the defendant being requested to
pay the note, he promised that he would,
but prayed for further time. There was
no evidence of the presentment of the
note to the maker, or of any notice of its
non-payment being given to the defend-
ant; nor did it appear that when the de-
fendant so promised to pay, he knew
whether any application for payment had
been made to the maker. Gaselee, for
the defendant, contended, that the sub-
sequent promise did not dispense with
proof of the presentment and notice, un-
less made with full knowledge of the

(522) Although the protest of a notary public is not evidence in the case of promissory notes and inland bills of exchange, yet the books of a notary public proved to have been regularly kept, are admissible in evidence after his death, to prove a demand of payment, and notice of non-payment, of a promissory note. Nicholas v. Webb, 8 Wheat. 326.

The protest of a deceased notary and a register of protests kept by him in which the notes and memoranda in his hand writing proved by a witness stated that the notary had made diligent search and inquiries after the maker of a note in the city of New York (where the note was dated,) in order to demand payment of him and that he could not be found, &c. and that notice of non payment was put in the post office: Held, that this was sufficient evidence of due diligence as to the demand of payment of the maker of the note, but not of notice to the indorser, as the note or memorandum of the notary did not state where the indorser resided nor to what place the notice to him was directed: But it seems that if the notary had stated that the indorser after diligent search and inquiry could not be found, that would have been sufficient to entitle the plaintiff to recover against the indorser. Holliday v. Martinet, 20 Johns. 168.

dence of

4thly. Evi-sidered, that admitting a drawer of a bill may, by circumstances, imthe breach pliedly waive his right of defence founded on the laches of the holder, of contract, yet it must be proved, that an indorser has expressly waived it. And and other in these cases it is to be left to the jury to say whether, under the circircumstan- cumstances, the defendant had notice at the time of his promise or apces to sus-plication, that there had been no due presentment, or that the holder tain the ac-had otherwise been guilty of negligence,

tion.

с

In an action by the drawer against the acceptor of a bill, payable to the order of a third person, and which the drawer has been obliged to pay, it is necessary, in support of the count, stating the return of the bill, to prove the acceptance, the demand of payment, and refusal or neglect to pay, and the return of the bill to the plaintiff, and the payment by him if averred, but it is not necessary to prove that the acceptor had effects in hand, that fact being prima facie admitted by the acceptance.“

When the acceptor of an accommodation bill sues the drawer spe cially, and which he cannot do on the bill, he must prove the handwriting of the defendant as drawer, and the payment by himself, or some special damage, as imprisonment in execution, and which in the latter case will not suffice, unless there is a special count in the declaration for not indemnifying. And as the presumption of law is, that the acceptor had consideration for his acceptance, it will be incumbent on him to prove the contrary. Prima facie, a general receipt on the back of a bill, imports a payment by the acceptor. But the production of the bill from the custody of the acceptor will not afford for him prima facie evidence of his having paid it, without proof that it was once in circulation after it had been accepted; nor is payment to be presumed from a receipt indorsed on the bill, unless it be shown to be in the hand-writing of a person entitled to demand payment. So in an action by bankers to recover the amount of a bil of exchange accepted by the defendant, payable at their house, and paid by them after it was indorsed, they are bound to proved the indorsement by the payee and the defendant's acceptance, and their

payment.

Evidence

WITH respect to the evidence on the part of the defendant, it must for the de- necessarily depend on the circumstances of each case.

fendant.

laches of the holder. In the cases
hitherto decided upon this subject, some-
thing appeared that might be considered
a waiver of any irregularity with regard
to the bill or note, which could not be
inferred from a mere promise to pay,
made at a time when the party, without
being aware of it, was discharged from
his liability. But Bayley, J. held, that
where a party to a bill or note, knowing
it to be due, and knowing that he was
entitled to have it presented when due to
the acceptor or maker, and to receive
notice of its dishonour, promised to pay
it, this is presumptive evidence of the
presentment and notice, and he is bound

by the promise so made. Verdict for plaintiff.

Borradaile v. Lowe, 4 Taun! 93 Ante, 239.

Hopley v. Dufresne, 13 East, 275. Horford v. Wilson, 1 Taunt. 15. Bayl. 220. d Vere v. Lewis, 3 T. R. 183. Simmonds v. Parminter, 1 Wils. 185. Ante,

398.

* Chilton v. Wiffen, 3 Wils. 12, 13. * Taylor v. Higgins, 3 East, 169. & Vere' v. Lewis, 3 T. R. 183. Scholey v. Walsby, Peake's Rep. 25 Phiel. Van Battenberg, 2 Campb. 439. Ante, 399.

Foster v. Clements, 2 Campb. 17.

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fendant.

If the defendant would wish to establish that the stamp is insuffi- Evidence cient, he should be prepared to produce and point to the particular for the deprovision of a printed copy of the stamp act on which he relies; and if the objection be, that a bill, purporting to have been made abroad, was made in England, and therefore required a stamp, it will not suffice merely to prove that the drawer was in England at the time the bill bears date, but the fact must be established by more positive evidence.'

If the defendant relies on the illegality or insufficiency of the consideration, he should, in due time before the trial, serve a notice upon the plaintiff's attorney, to prove the consideration he gave for the bill, and the time when, and person from whom he received the same," and he should prove the due service of such notice, for without such notice we have seen, the defendant cannot call on the plaintiff to enter into those circumstances," The defendant should also be prepared with evidence to prove the circumstances under which the bill was drawn or negotiated. If goods were delivered in part of discount, and accepted voluntarily, then the defendant must, in order to make out a case of usury, prove the excess in the charges.P But if the defendant prove that goods were forced upon him or another party, then the plaintiff may be called on to prove that they were fairly charged. If the usury was committed in discounting another bill besides that on which the action is brought, in one undivided transaction, no parol evidence is admissible as to the contents of the other bill, unless notice has been given to produce it, and which notice should be proved.

In an action at the suit of an indorsee against the maker of a promissory note where the defence was usury in its creation, it was held, that letters from the payee to the maker, stating the consideration as between them, if shown to have been contemporaneous with the making of the note, were admissible evidence to prove the usury, without calling the payee himself; but in general the letters of an indorser, or at

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9 Davies v. Hardacre, 2 Camb. 374. Ante, 87, 8.

Hallam v. Withers, 1 Esp. Rep. 259.

• Kent v. Lowen, Campb. 177. 180. d. S. P. in Walsh v. Stockdale, coram Abbott, J. Sittting at Guildhall, post, Trin. Term, 1818.

Kent v. Lowen, 1 Campb. 177., and 180. d Assumpsit against the defendant as maker of a promissory note for 1537. 15s. dated 9th August, 1806, at ninety days after date, payable to Messrs. Coates and Co. indorsed by them to J. Watson, and indorsed by him to the plaintiff. The making of the note, and the several indorsements being proved, the Attorney-General opened, as a defence to the action, that the note had been given under a usurious

agreement between the defendant and
Coates and Co. To prove this he offered
in evidence certain letters from Coates and
Co. to the defendant, wherein they propo-
sed to accommodate him with their ac-
ceptance at three months, upon receiving
his note for the same sum at ninety days,
together with two-and-a-half per cent.
commission. Park objected to the admis-
sibility of this evidence. He allowed,
that in an action against the acceptor of a
bill, the drawer or indorser may be called
to prove that there was usury in its origi-
nal concoction, but there the evidence was
given upon oath, and an opportunity was
afforded to cross-examine the witnesses.
Here these letters of Coates and Co. were
not upon oath, and might be collusively
written, with a view to defeat the fair
claim of the plaintiff. Lord Ellenborough
ruled, that it was necessary to prove by
the post mark, or otherwise, that the let-
ters were cotemporaneous with the making
of the note, and that after that they would
be evidence of an act done by Coates and
Co. who were the payees of the note, and
through whom the plaintiff made title.

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