« ForrigeFortsett »
take the chance of the diligenceof the attorney on the other side, and presume upon his being able to extract the evidence required oat of him. The attorney therefore ought not to be called upon to produce the notice, neither ought his memory to be taxed with the contents of the notice; for that falls within the principle that you shall notextraci any tiling from him, which was communicated confidentially by his client, and that rule should extend to every thing which is communicated to him for h'u> client's benefit, in the course of the cause."
Le Blalc, J. "Suppose he were the servant, and not the attorney of the plaintiff."
Garrow. "It is said that even in that case he ought not to communicate it; but a fortiori, he should not, if he be attorney. If the notice were first served upon Schullemburgh, the defendant, instead of Moore the attorney,and Schulle/nburg/ihad communicated the' contents to Moore, then it would be clear that Moore •ought not to disclose the contents of that communication; and the attorney for the plaintiff was not bound to serve the notice upon Moore, but ought the rather to have served it on the defendant personally, as he did also in this case, he ought not to be put in a better situation by doing that which was an unnecessary, if not a nugatory act."
Lord Ellepborough, C.J. "Is it not a privilege restricted to that which the client communicates himself? I thought indeed, at the trial, that as it was a communication which he received as attorney, in his confidential character, he was entitled to refuse the answer."
Garrow. "I admit that the attorney may be permitted to prove tbat he received the notice. But the contents must be considered as a communication in the cause, whether by the party or from any other person, and I do not understand the rule to be confined solely to the oral or written communications of the client himself."
Reader on the same side, contended that as the plaintiff hn& not shewn that the original notice was lost, he could not be let in to prove the contents of it, in this way by parol evidence, and that such a notice must be proved like all other documents, by producing the original or proving the loss of it, in order to let in parol evidence.
Lord Ellenborouoh, C.J. "The question is, wheLher the plaintiff' ought to be let into secondary evidence of the contents of a paper, served in the course of the cause, that paper being mislaid? Unless the witness of whom the question as to the contents was demanded stood in a different situation from other witnesses, they have a right to ask him the question as to the contents of it. Then is he privileged from his situation as attorney in the cause? Had it happened that the notice had been delivered to him, in the presence of his client, and instead of reading it himself, the client had rend it to him, it might have given rise to an nrgtnnent that it was onlv an oral communication to him by his client; but here he read it himself, and the rule is confined to all things which the client communicates to his attorney. I thought that it extended to all things of whioh becomes to the knowledge in virtue of his character as attorney, but now I think it must be understood with the limitation, that it must be what he derives from the oral or written communication of hu client."
Rule Absolute for a new trial.
OtiR against Maginnis.—26th April.
WAere a captain of a vessel abroad drew upon kit owner* for provisions supplied for ike use of the ship, and btfore the bill became due or was presented for acceptance settled with them, and at the time of presentation for acceptance, there vas nothing due to him; held, that this was not sufficient to dispense with the necessity of notice to him, the drawer, of the non-acceptance.
1806. TN assumpsit by the payee of a foreign bill of ex() change against the drawer, the defendant, who was
vertut captain of a vessel belonging to Messrs. Laiuox and 1 Co. at Liverpool, being then at Demerara, drew a bill
upon Messrs. Mullion, Lennox, and Co. at Liverpool, in favour of the plaintiff, a merchant at Demerara, dated 2.5th January, 1802. Before the bill was presented, the drawer came to England, and arrived in May in the same year, and left England again in June following, and was absent at the time of the presenting for acceptance and for payment. The bill was drawn for supplies furnished for the ship ; and while in England he came to an account with Messrs. Lennox, in which he charged for these supplies, and was paid for them. On the 22d of October, 1802, when the bill became due, it was presented for payment and protested, but although acceptance was refused, and it was noted for non-acceptance, there was no notice, nor protest to the drawer for non-acceptance, and it was .contended .that there was no necessity, for either, as there were no effects in the hands of the drawees at the time of the presenting it for acceptance,, although at the time of the drawing of the bill there was a balance of 1161. payable to Maginnis, the drawer, by Lenvox and Co. at Liverpool. The holder being at Liverpool returned it to the payee at Demerara. At the trial before Lord Ellenborough, C. J. at Guild- itoe. hall, the plaintiff was nonsuited, on the ground that Maginnit never had notice of the non acceptance. «*r""
Taddy now moved for a new trial, and endeavoured to bring this case within the principle of .the case of Rogers v. Stephens,* and Bickerdike v. Bollman f It was not contended, he said, that the plaintiff should have given notice, but the holder at Liverpool.
Lord Ellen Borough, C. J. "The cases have never been carried further than to dispense with notice, where there were no effects in the hands of the drawer at the time of the making of the bill, nor afterwards during the time for which the bill is drawn. That was the effect of the decision in Bickerdike v. Bollman, which was not very much approved of at the time, and I, for one, will not extend it; and it is expressly laid down, thatyou are not bound to present a bill for acceptance before it is due, but, if you do present it, you must communicate to the party the knowledge which you have, and give notice of the dishonour by non-acceptance."
Rule nisi refused.^
* 2 T: Rep. 714. +1 T. Rep. 405.
J l* It is not necessary to say whether the rule which dis"penses with notice, in cases where the drawer has no effects "in the hands of the drawee, was wisely adopted or not. "That rule certainly proceeds upon the ground of fraud in "the drawer; and the courts have said, that, where the "drawer has been guilty of fraud, he shall not claim the "protection of those rules, which were introduced for the "benefit of drawers acting bondJide. When a person draws "a bill upon another, who has no effects in his hands, he is
WO. xxxil. N. S, U U
Covenant. Assignee, lease.
Turner against Richardson and Rotherham, assignees of Barber.—24^ Jpril.
Where the assignees of a bankrupt, who was possessed of a term, merely, put the same up to auction, to ascertain whether it was of value, without giving themselves out to be the proprietors, and, there being no bidders, interfered no further in the matter, and never received rents; held, that they were not answerable in covenant to the lessor.
". not entitled to notice of its being dishonoured, since, he "must know without such notice, that funds have not been "provided to answer it." Per Chambre, J. in Clegg r. Cotton, 3 B<w. and Put. 23.0,
In Walwyn v. St. Quintins, 1 Bos. and Pul. 65?. Eyre, Ch. J. said, " it might be a proper caution to bill-holders not "to rely on it as a general rule, that if the drawer had not "any effects jn the hands of the acceptor, notice was not "necessary. The cases of acceptance on the faith of consign"ments from the drawer not come to hand, and the cases of "acceptances on the ground of fair mercantile agreements, "might be stated as exceptions, and there might possibly be. "many others. See also Clegg v. Cotton, 3 Bos. and Pul. "239> where A. the agent in America of B. in England, Grew
a bill upon B. and indorsed it to C, also residing in America, "who indorsed it over. Before the bill became due, A. hav"ing reason to believe that B, would fai), lodged properly "belonging to B. in tlje hands of C. to answer the bill in "case it should be returned, C. undertaking to restore the "same, whenever it should appear that he was exonerated "from the bill. Acceptance and payment of the bill were f refused, but no notice was given to A. ; held that A. wasdis«' charged. Heulh, J. observing, that no doubt the rule "dispensing wifh notice, proceeded on the ground of a supf posed fraud. But that ground was not applicable to a J' case where an agent drew upon his principal, unless under U very particular circumstances."