Flack v. Green , 3 G. & J. 474 ( 1831 )

Stephen, J.,

delivered the opinion of the court.

This suit was instituted in Baltimore County Court, by the appellant, against the appellee, upon a promissory note drawn by a certain John Pic, in favor of the appellee, by whom it was endorsed to the appellant. The general issue was pleaded, and on the trial of the cause, the plaintiff proved the endorsement of the payee on the note, who resided in the city of Baltimore at the time the note became due, and also the hand writing of the maker. John Pic, the maker of the note, residing in the city of Washington, the note was transmitted to the bank of Washington for collection, by Henry Payson <$• Co. of Baltimore, as the agents of James Flack, by whom it had been placed in their hands, for a similar purpose. When the note became due, it was placed by the bank, in the hands of a notary, who demanded payment thereof, which being refused, he prepared a notice thereof, addressed to Charles Green, and a similar notice addressed to Henry Payson Co., who were endorsers on the said note; which notices the notary endorsed, and put in the post office, in the city of Washington, on the evening of the same day, addressed to Henry Payson fy Co. at Baltimore. In this case, two bills of exceptions were taken in- the court below. In the first exception, for the purpose of showing that the notice of nonpayment, addressed to Charles Green, the defendant, and put into the post office at Washington, on the 6th February, 1826, the day the note became due, under cover to Henry Payson fy Co. the next endorsers, was transmitted to the defendant in due time; the plaintiff offered to prove by sundry witnesses, that it was the invariable, and uniform practice of that house, to forward such notices immediately upon receipt of them, and that they had no doubt from the course of their business, that they had forwarded this particular notice to Charles Green, the defendant, but that they had no recollection upon the subject of forwarding this particular notice to the defendant. That from the general course of their business, and from the particular custom of théir counting house, in respect to such notices, they be- . liévéd the notice in question had been duly transmitted to the defendant. To this evidence the defendant objected, as being incompetent, and inadmissible to prove that notice, of the non-payment of the said note was received by, or given to him ; which objection the court sustained, and refused to permit the said evidence to be given to the jury.' In this opinion of the court we do not think there is any error.

In the opinion given by the court in the second exception, we also entirely concur. The note became due on the 6th February, 18.26, and the proof offered in this exception established the fact, that Green, the defendant, never received notice, until the 9th of that month, which was unquestionably one day too late. The name of Flack was not endorsed upon the bill; and in Chitty on Bills, 23, the principle is stated to be a general one, “ that no person can become a party to a bill, unless his name appears on some part of it.” For this rule he refers to the opinion of Fuller, in the case of Fenn vs. Harrison, in 3 Term, 759, where he says : “ In the case of a bill of exchange, we know precisely what remedy the holder has, if the bill be not paid. His security appears wholly on the face of the bill itself. The acceptor, the drawer, and the endorsers are all liable in their turns, but they are only liable, because they have written their names on the bill.” The law seems to be well settled, that where all the parties reside in the same place, each party has a day to give notice. In 1 Wheat. Selw. 295, the law is laid down to be, “ where there are several endorsements, and the holder gives notice of dishonor to his endorser, neither that endorser, nor any prior endorser is bound to transmit the notice of dishonor on the very day on which he receives it. Each successive endorser will be considered as having used due diligence, if he transmit the notice of dishonor, on the day after it is received, in a ease where all the parties live in the same place; but if he neglect giving the notice on that day, and the day after, it will be too late.” In Jameson vs. Swinton, 2 Camp. N. P. C. 373, the same rule was recognized by Lawrence, J. viz: “ that each party to the bill has a day to give notice.” The name of Flack not being upon the bill in this case, he was not entitled to the benefit of the principle, that each party is entitled to an entire day for the purpose of giving notice. “ The putting of a letter into the post office, giving the notice, is sufficient, without proof of its having been actually received, and if the party to be affected with the notice, reside in a different place from the holder, the notice may be sent through the post offiee, to the post office nearest the party entitled to such notice;” 1 Wheat. 298. Bank of Columbia vs. Magruder, 6 Harr. and Johns. 181. According to the admission of the parties, it appears, that the mail left Washington city early in the morning, and arrived in Baltimore, at an early hour the same afternoon. In legal presumption, the notice must have reached Payson fy Co. on the 7th February, who were legally bound to deliver notice to Green on the following day. This not having been done, we are of opinion, that the court below were right, in the opinion expressed by them in the second exception, and affirm their judgment.

JUDGMENT AFFIRMED.