1840.

v.

SOUTHEY.

within Hedger v. Steavenson; but Parke J. disclaimed deciding that case on the expression "with 1s. 6d. MESSENGER noting" there used. In Grugeon v. Smith the words were "returned with charges;" but here there are no equivalent expressions. The words "not took up, and 4s. 6d. expense," may mean that the plaintiff expected some previous holder to take up the note, or it might not have been accepted, (for as it is so described in the notice, it is to be considered as a bill,) and then it would not be taken up. Under either supposition, expenses might have been incurred for postage or otherwise. The word "expense" does not necessarily imply notarial charges; neither does it imply charges incurred by a presentment to the maker of the note; but in order to hold this notice to be good, it is requisite to make both those inferences. Moreover, there is nothing here to shew that payment has been refused. The words "is not paid," in Strange v. Price, are more definite than the expression "not took up," and yet they were held insufficient. In that case, Lord Denman C. J. says, "It is clear that the law now requires express notice of the acceptor's having refused payment, as well as of the party having been called upon to pay." With regard to the latter point, there can be no doubt that a notice of dishonour must state that payment is expected from the party to whom the notice is given. Tindal v. Brown. (a) But here there is nothing to indicate that the plaintiff looked to the defendant for payment of the note. His son might be going to London, not to receive the amount from the defendant, but to pay it to the holder of the note. This view is strengthened by the expression, "the money I must pay immediately," which intimates that the defendant himself had not taken up the note, and if so, he was not the party entitled to call for payment. Cur. adv. vult.

(a) 1 T. R. 167.

The judgment of the Court was now delivered by TINDAL C. J.

The short question in this case is, whether the notice

of dishonour of the promissory note, on which this action is brought, is sufficient under the authority of the law laid down by the House of Lords in the case of Solarte v. Palmer. (a)

The action was brought by the plaintiff as indorsee of a promissory note against the defendant as indorser; and the notice was by letter from the defendant to the plaintiff in the following terms: "This is to inform you, that the bill I took of you, 15l. 2s. 6d., is not took up, and 4s. 6d. expense; and the money I must pay immediately. My son will be in London on Friday morning."

The law laid down by the House of Lords has not been, as indeed it could not be in an inferior court of law, called in question upon the argument of this case; but the endeavour on the part of the plaintiff's counsel has been to distinguish the terms of this letter from those of the letter produced in evidence in Solarte v. Palmer, and to contend that it conveys sufficient notice of the dishonour of the note, within the authority of cases subsequently decided.

We entirely agree that the rule laid down by the House of Lords is not to be extended, and that any case to be governed by it should fall clearly within its principle; but at the same time nothing can be more inconvenient than, on each particular occasion, to be under the necessity of recurring to nice and subtle distinctions by way of exception from its authority. And we cannot hold the present case to be brought out of the reach of that decision by any sufficient and clear distinction.

1840.

MESSENGER

V.

SOUTHEY

1840.

V.

The cases on which the plaintiff principally relied as authorities in his favour were the following; Grugeon v. MESSENGER Smith (a), in which the letter contained the words, "Your bill has been returned with charges," and Hedger v. Steavenson (b), in which the words were, "The promissory note payable to your order became due yesterday, and has been returned unpaid.”

SOUTHEY.

We are far from saying that those cases may not have been properly decided; for it is difficult to give any other meaning to the terms "returned," and "returned with charges," than an intimation that the bill had been actually presented, refused payment, and returned to the holder on that account.

But such is not the necessary construction of the present letter. That the note (misdescribed as a bill) has not been taken up, points rather more at an expectation that the party addressed, or some other prior party to the note, had engaged to take it up, than at a regular presentment at the maker's and a refusal; and the expression, "4s. 6d. expense," falls very short of that of "returned with charges," in Grugeon v. Smith.

On the whole, we think it safer to hold ourselves bound by the decision in Solarte v. Palmer, followed by that of Boulton v. Welsh (c) and Strange v. Price. (d) The rule, therefore, must be made absolute for a new trial.

(a) 6 A. & E. 499., 2 N. &

P. 303.

(b) 2 Mee. & W.799.

Rule absolute accordingly.

(c) 3 New Cases, 688., 4 Scott, 425.

(d) 2 P. & D. 278.

BUXTON V. JONES.

1840.

April 22.

presented for

payment at

ASSUMPSIT on a bill of exchange drawn 10th of De- A bill of excember 1839, by Charles Simpson upon Frederick change was Epworth for 201., payable two months after date to the order of the drawer, by him indorsed to the defendant, the door of by the defendant indorsed to the plaintiff, presented to the drawee, and unpaid; whereof the defendant had no- drawee was tice. The declaration contained counts for and on an account stated.

the house

where the

money lent,

described as

living, to a lodger who

Plea, to the first count, non-presentment; to second was coming

and third counts, non assumpsit.

At the trial before Lord Denman C. J. at the Warwick Spring assizes, 1840, the plaintiff, in order to prove the affirmative of the first issue, produced the bill of exchange, which purported to be addressed to the drawee,

from the pas

sage of the house into the The

street.

drawee had

sidence,

not to the

removed to another reby the description of Mr. Frederick Epworth, No. 38. known to the Minto Street, Baal-zephon Street, Bermondsey, and ap- occupier of peared to be accepted by him generally; and proved the house, but that, at the request of his attorney's clerk, one Williams went at nine in the morning of the 13th of February (on which day the bill became due) to No. 38. Minto Street, and that seeing a woman come out of a passage belonging to the house (which was a huckster's shop) with child in her arms, he asked her whether Epworth was

a

lodger; and it was not

shewn that he

had left funds for payment. Held, that the presentment

the affirma

on the due

was sufficient there, and was informed that Epworth was gone. He to maintain then left with this woman a card containing notice of tive of an the bill's being due, and went away without making any issue raised further inquiry. Goulburn, Serjt. applied for a nonsuit, on the ground that the evidence of the presentment was insufficient. The noble and learned Judge, however, said that he thought that evidence ought to be given on the part of the defendant. Upon which Card the keeper

presentment

of the bill in an action against an indorser.

1840.

BUXTON

v.

JONES.

First objec

tion: Matter

of law sub

mitted to the jury. (b)

of the shop at No. 38. and his wife were called. (a) From their testimony it appeared that the wife was at home during the whole of the 13th of February, and the husband for a great part of the day; and that they had seen and heard nothing of Williams or his message; that Epworth before the 13th of February, being in the police force, had removed from Bermondsey to Enfield; and that a woman who had a child was a lodger in the house.

No evidence was offered in support of the money

counts.

The noble and learned Judge left it to the jury to say, whether under the circumstances, there had been a legal presentment for payment.

The jury found a general verdict for the plaintiff'; damages 211. 2s. 6d.

Goulburn Serjt. now moved for a new trial, on the ground of misdirection. In Bateman v. Joseph (c), the rule is distinctly laid down thus: " Whether due notice has been given of the dishonour of a bill, all the circumstances necessary for the giving of such notice being known is a question of law; but whether the holder has used due diligence to discover the place of residence of the person to whom the notice is to be given is a question of fact for the jury." (d) Here no question of

(a) The defendant, by going into evidence, took his chance of bettering his case. The Court therefore was not called upon to give any opinion upon the question, whether the proof given by the plaintiff was sufficient evidence of presentment to go to the jury.

(b) No judgment was pronounced on this point. The Court probably considered, that if the noble and learned Judge

had stated the law to the jury, the result would have been the

same. "

(c) 12 East, 434.

(d) The importance of preserving this distinction appears from the consideration that in this case of Buxton v. Jones the jury are supposed to have drawn an important inference from a particular fact, their attention not having been called either to the fact or to the in