because Whitley has only been dead a few days: I shall see the bill paid." 1849. CAUNT บ. Upon this evidence, the plaintiff applied for leave to amend his declaration, by averring the death of the THOMPSON. acceptor, the appointment of the defendant as his executor, and the presentment of the bill to him. The lord chief justice allowed the amendment to be made, and said that the proof of presentment to the executor was not sufficient proof of notice of dishonour. A verdict was thereupon taken for the plaintiff on the first issue, and for the defendant on the second; leave being reserved to the plaintiff to move to enter a verdict on that issue in his favour, or for judgment non obstante veredicto; and leave being likewise reserved to the defendant to move on the ground that the amendment ought not to have been made. Cross rules were accordingly obtained in Hilary term, 1848. At the argument, we disposed of the defendant's rule, thinking the amendment properly allowed: and now, after consideration, we think that the plaintiff's rule, to enter a verdict in his favour on the second issue, must be made absolute. It may be assumed to be a settled rule, that knowledge of the probability, however strong, that a bill of exchange will be dishonoured, cannot operate as a notice of dishonour, or dispense with it. Pothier, Contrat de Change, Part. I. c. 5. § 147 (a), lays down the same rule with reference to foreign (b) bills, viz. that the notorious insolvency of the acceptor of a bill does not dispense with protest for non-payment, and notice to the prior parties, because the insolvency of the acceptor, however notorious, may not be known to them, or, in the absence of notice, they may suppose (a) Citing Savary, parer. 45. (b) to English," not as opposed 1849. CAUNT v. that the acceptor, though insolvent, has found means to take up the bill. So also it may be considered as settled, that information that a bill has been disTHOMPSON. honoured, derived from a person not having authority to give it, does not supply the place of notice. Hence, it has become usual to say that knowledge of the dishonour of a bill is not equivalent to notice. In such cases as those above mentioned, it certainly is not. The law has not been so well settled, as to the nature of the notice to be given. In Hartley v. Case (a), Abbott, C. J., said: "There is no precise form of words necessary to be used in giving notice of the dishonour of a bill of exchange; but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor." Since that case was decided, there has been some fluctuation of opinion on the subject. In Solarte v. Palmer (b), which was finally decided in the House of Lords(c), a very strict rule was adopted; but that has not been adhered to. In Burgh v. Legge (d), Parke, B., says: "There must be proof of a notice given from some party entitled to call for payment of this bill, and conveying in its terms intelligence of the presentment, dishonour, and parties to be held liable in consequence." But, in Furze v. Sharwood (e), and King v. Bickley (g), it was decided that the notice need not, in terms, inform the party to whom it is given, that he is looked to for payment: and, in Miers v. Brown(h), these latter decisions were followed. The rule does not differ in substance from that given by Ashhurst, J., in Tindal v. Brown(i): -"Notice (a) 4 B. & C. 339. (b) 7 Bingh. 530., 5 M. & P. 475., 1 Tyrwh. 371., 1 C. & J. 417. (c) 1 N. C. 194., 1 Scott, 1., 8 Bligh. N. S. 874. d) 5 M. & W. 418. 1849. CAUNT V. means something more than knowledge; because it is competent to the holder to give credit to the maker. (a) It is not enough to say that the maker does not intend to pay, but that he, the holder, does not intend to give THOMPSON. credit." In substance, these cases seem to establish, that, in order to make a prior holder responsible, he must derive, from some person entitled to call for payment, information that the bill has been dishonoured, and that the party is in a condition to sue him, from which he may infer that he will be held responsible. In Miers v. Brown, Alderson, B., describes what is needful, in these terms: Knowledge of the dishonour obtained from a communication by the holder of the bill, amounts to notice." In the present case, the defendant knew that the bill was dishonoured; and he knew it from the best source, namely, his own personal act in dishonouring it when presented by the holder: and he knew, from the same source, that time had not been given to the acceptor. He had, therefore, all the information which, according to Ashhurst, J., the notice ought to convey: and, knowing that, he would know also that the holder had placed himself in a situation to call upon him (the drawer) for payment, from which, to adopt the view of modern decisions, he might infer that he would be called upon. This is very different from that knowledge which has been spoken of as not equivalent to notice, and is at least as much notice as the knowledge spoken of by Alderson, B., in Miers v. Brown. Indeed, there would be some absurdity in requiring that the plaintiff should have stated to the defendant at the time when he dishonored the bill, "Take notice that this bill has been dishonoured by you." Lord Ellenborough seems to have been of that opinion in the case 1849. CAUNT V. THOMPSON. of Porthouse v. Parker (a), an action by the payee against the drawer of a bill. It was drawn by one Wood as agent of George James and John Parker, upon John Parker. There was no proof that Wood had authority to draw: but evidence being given that the bill was accepted by a duly-authorised agent for John Parker, Lord Ellenborough held that it was evidence of the bill having been regularly drawn; and that, the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove that the defendants had received express notice of the dishonour of the bill, as this must necessarily have been known to one of them; and the knowledge of one was the knowledge of all. Upon the authority of that case, and upon principle, we think that the notice to the defendant in this case was established, and that the verdict should be entered for the plaintiff on the issue on the second plea. Plaintiff's rule absolute. Defendant's rule discharged. (a) 1 Campb. 82. 1849. EDMONDS v. CHALLIS and Another. Feb. 14: diction of the replevin, is, 10 Vict. c. 95., transferred to the new courts THIS was an action upon the case against the sheriff The jurisof Middlesex, for having taken a replevin-bond not in conformity with the statute 11 G. 2. c. 19. s. 23. The declaration stated that the plaintiff, after the 14th of March, 1847, to wit, on the 29th of March, 1847, and within the jurisdiction of the Whitechapel County-court of Middlesex, on certain premises situate. in the county of Middlesex, and within the jurisdiction of the Whitechapel County-court of Middlesex, by one George Ellis, his bailiff in that behalf, lawfully took under that and distrained divers goods and chattels, to wit, &c., act. The then being in and upon the said premises, and of great however, still value, to wit, of the value of 477. 4s., as a distress for take a bond certain arrears of rent, to wit, for the sum of 351. of lawful money, then due and owing from a certain person, to wit, one Henry Rowe, to the plaintiff for the rent of the said premises, with the appurtenances, by virtue of a certain demise thereof, &c.; that the plain- to appear "at established sheriff must, pursuant to the statute 11 G. 2. c. 19. But a bond conditioned for the obligor the next county-court for the county of M., to be holden at the sheriff's office in, &c., and then and there to prosecute his suit with effect," &c., is bad. In an action against the sheriff for taking an insufficient replevin-bond, the reasonable measure of damages, is, the amount of the rent and the expenses of the distress. The declaration alleged that the (old) county-court had not jurisdiction at the time of taking the bond: Held, on motion in arrest of judgment, that the declaration was sufficient, without alleging a want of jurisdiction at the time of the plaint to the sheriff. At the trial of an action against the sheriff for taking insufficient pledges in replevin, notice having been given to the defendants to produce the bond, the plaintiff's counsel called for it; and, on the defendants' counsel declining to produce it, a copy obtained from the sheriff's office was put in, and was about to be read, when the defendants' counsel interposed, and offered the original, and then objected that it could not be read, without calling the subscribing witness. The judge overruled the objection: -Held, that he was right in so doing. |