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was refused; of which the defendants had notice, and
The declaration also contained the common
At the trial before Wood B., in Cumberland, the drawing, indorsement, and acceptance of the bill, were duly proved; and further, that when it was presented for payment to Losh, the acceptor, at Carlisle, where the plaintiffs, who were bankers, also lived, which was on Saturday the 18th of August, (the bill becoming due on the next day, Sunday,) Losh told the plaintiffs that he was not able to pay it, but wished them to keep it a week and he should be able to pay it. The plaintiffs on the same day wrote to the defendants, who lived at Birmingham, this letter : “ Carlisle, 18th August 1810. Gentlemen, Losh's acceptance to you for 501. was noted for non-payment to-day, but we have reason to believe that a friend of his will advance the money for him in a few days. We shall therefore hold the bill till the latter end of the week, without putting any more expense upon it, unless we hear from you to the contrary. (Signed) Forster and Co.” It was further proved that about the 17th of October an agent of the plaintiffs, (having before called on the 13th) presented the bill for payment to the defendant Kimberley at Birmingham, who said that Jurdison was gone upon a journey, and would be at Carlisle soon, and would call and settle the bill : after which it was sent back to the plaintiffs at Carlisle : and on the 2d of December, Jurdison, being in company with Losh at Carlisle, said that he had been taken on account. of Losh's stock, who could not lift (i. e. pay) the bill : that he (Jurdison) was afraid of being arrested ; and had provided money to lift it with if he should be arrested. It
was objected by the defendant's counsel, that it was incumbent on the plaintiffs to have given the defendants notice that the acceptor had not taken up the bill at the latter end of the week, mentioned in their letter, as the time to which they would hold it ; whereas they had not given any evidence of such notice till the 13th of October following: by which laches it was contended that the defendants were discharged, and that the subsequent evidence did not prove a waver of want of notice, or any promise to pay the bill. The learned Judge was of opinion that the defendants were discharged by the laches of the plaintiffs in not giving them notice at the end of the week, mentioned in their letter, that the bill was not paid; but left it to the jury to say whether they inferred from the conversation with the defendants that they had waved the want of notice, and again undertaken to pay the bill; in which case they should find for the plaintiffs, otherwise for the defendants; and the jury found a verdict for the defendants. This question was again discussed upon a rule for a new trial, which was obtained by Park in last Michaelmas term; against which
Topping and Walker now shewed cause; and admitting that as no answer had been returned by the defendants to the letter of the plaintiffs, giving notice of the dishonour, but informing the defendants that for the chance of payment from a friend of the acceptor's, they would hold the bill till the latter end of the week, unless they heard to the contrary; that was to be taken as an assent by the defendants that the plaintiffs should keep the bill for that time; yet they contended that the effect
of such postponement was no more than a prolongation of the time that the bill had to run; and therefore it was incumbent on the plaintiffs at the latter end of the week to give fresh notice of the new default to the defendants; without which they had fair reason to conclude that it had been taken up by Losh. Wherever certain notice of the fact is necessary, and the first notice is not absolute in its terms, reason points out that a second notice is necessary to be given. By not hearing again, the defendants were deluded into security that the bill had been paid, which prevented them from taking the necessary steps against the acceptor : and the waver of notice, if necessary, was negatived by the jury.
Park and Holroyd, contrà, were stopped by the Court.
Lord ELLENBOROUGH, C. J. The question in this case is a question of law, whether the holders of a bill of exchange, who upon the dishonour of it by the acceptor had a right of action vested in them at the time absolutely against the drawers, meant to devest themselves of that right by the letter of the 18th of August. They therein say in effect, we give you notice of the dishonour; but as we have reason to believe that by holding back the bill in our hands for a few days longer, till the latter end of the current week, we may be able to get the money and save you further expense, we shall do so, unless we hear from you to the contrary. Then have they not done every thing which was incumbent upon them to do? By that letter they took on themselves an agency on behalf of the de
fendants to get payment; and if these can shew that they had been damnified by not receiving any further notice from the plaintiffs till October, the law will give them a remedy against the plaintiffs so acting in their character of agents for the defendants. It therefore appears to me that the learned Judge went further in his direction to the jury than he need have done. The plaintiffs did every thing necessary to give themselves a title under the bill : they gave notice of its dishonour, which is all that the law-merchant bound them to do, in order to give them a remedy on the bill ; and that which they did afterwards was merely in their character of agents : in that character they continued to hold it for the defendants; and if by their negligence as agents the defendants were injured, they have their remedy by an action for such neglect, upon the implied assumpsit in the letter, if it will bear such a construction.
The other Judges concurred; and Bayley, J. added that after the notice received by the defendants, they were bound to look after Losh.
must be de
Saturday, DICKINSON against R. Bowes, Thomas Kay, June 6th.
and Others. Payment of a promissory
WHIS was an action on 56 promissory notes of the T
defendants, payable to bearer, for one guinea each. payable at a
One of the defendants, sued by the name of Thomas Kay, certain place named in it,
(whose real name was John Key, commonly pronounced manded there Kay,) suffered judgment by default: and at the trial of before the makers can be the cause, at the assizes in Cumberland, before Wood B., sued on it But against the others, who had pleaded the general issue, it mand proved was objected, on proof of that fact, that the plaintiff was in an action by the holder not entitled to recover, because the defending partners against the makers, it is no never had such a person as Thos. Kay a partner with objection to the plaintiff's re
them. The plaintiff, in answer, entered into proof to shew covery that one that the real person intended to be sued, and who was of the makers,
actually served with the process, though misnamed, was Key (who had John Key, one of the partners with the other defendants suffered judg- in the firm called the Workington Bank, who had signed ment by default.) was sued the notes ; and further shewed that another of the deon the joint promise by the fendants, who was attorney for the rest, had declared Kay; it being that Dickinson had brought an action and made a blunproved that the der in proceeding against John Key by the name of Thos. real person had
Kay. It was still, however, objected for the defendants, with the process, though that a plea in abatement was not necessary in this case; taken christian and that the plaintiff, to sustain this action, must shew a vanielcame the joint promise made by the other defendants with Thomas tween Key and Kay, and not with John Key. The learned Judge, howKay, which
ever, was of opinion that the misnomer was no objecalike, not being tion; it being proved that the real partner had been sued There had also and served with the process, though under a mistaken been a partpayment on the christian name; and that the variance between Key and notes duly pre sented.
whose real name was John
name of Thos,
under a mis