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BY THE Court :—The alleged slander was, that the plaintiff had taken advantage of the defendant in partnership transactions, but without stating the means, and was therefore not actionable. Nor have the words spoken any connection with the plaintiff's office as a minister.
The action was therefore only maintainable on the ground of special damage proved. There was, however, no distinct evidence that the falling off in attendance at the plaintiff's chapel took place in consequence of the alleged slander, and he had therefore no cause of action on these counts. As to the other counts, imputing the written slander, it appeared that it was contained in a written correspondence between the defendant and a gentleman who had made an investigation at the plaintiff's request into the charges. They were therefore privileged, and no action could be sustained either for the verbal or written slander. The rule must be made absolute to enter a nonsuit.
THE CONTRACT OF ENDORSEMENT, with Notes and References; to which is added a practical
form for a notice of dishonor, from Chitty. By LEGES. Auburn: Derby, Miller & Co. 1849. pp. 71.
The above is the title of a work from the pen of a lawyer belonging to this State. The readers of the Legal Observer will not fail to recognise in its pages the able articles on the subject of endorsement, which recently ap. peared in this journal. Those articles, and the opinion so obnoxious to the writer of them, together with the opinions of judges in other courts, in our state and the state of Michigan, chiefly make up the book. They constitute a compendious and well-considered review of the law in reference to the duties of those who seek to charge an endorser. It is a strong and forcible array of reason and principle against authority. The Court of Appeals, whose decision the author combats, may not readily recede from its position in the premises, but we see not how that high court can resist the force of the author's argument. We shall not be surprised to see the case of Warden & Griswold ads. The Cayuga County Bank, at no distant day, written among cases overruled. The book is valuable, and should be in every lawyer's library. We understand that it is for sale by Banks & Gould, and John S. Voorhies, of this city.
In relation to the two points discussed, the following propositions are submitted.*
First.—The notice must contain such a description of the bill or note as that the court can decide for itself, and on its own responsibility, when a bill or note is produced and offered to be given in evidence under the notice of dishonor, that is the one described in the notice served. This is a question solely on the papers, and to be decided like any other question of variance, by comparing them with each other. The only question for the court is—is the bill or note produced, described in the notice. It is a question of law-of legal certainty and precise accuracy; and the court must decide the question right, even though the endorser should decide it wrong; and the plaintiff should be held to more certainty and stricter proof of identity than in an ordinary question of variance on the pleadings, for it presents, in addition thereto, the question whether a condition precedent has been performed, a question of right, and not solely, as in the case of variance on the pleadings, a question whether a conceded right has been so described in the pleadings, as to allow it to be proved under the description of it contained in the papers. The question whether the note produced is “ the one intended to be referred to” in the notice, or what “information the notice when received, conveyed to his mind,” are questions of fact in relation to which the court has no right to form or express an opinion ; and the court that undertakes to do it, undertakes what Lord Mansfield undertook in the case of libels in England, to pass on the question of mind, as a legal proposition. It is a principal which can no more be established or maintained in relation to endorsements than it can in relation to libels; and it will
* N. Y. Legal Observer, v. 7, p. 169, 233-265.
† A condition precedent, is one which must be performed. A court of equity cannot relieve from the consequences of a condition precedent unperformed. i Vern. 83 ; 1 Atk. 361; 2 Bro. C. C. 43; 4 Kent Com. 124 and 5,4 ed. VOL. VIII.
Form for a Notice of Dishonor.
open the same door for favoritism or oppression on the part of the court in the one case as in the other.*
Second. It must contain a statement, in such language as the holder may choose to adopt, that the bill or note mentioned and described in the notice, has been duly presented for payment and payment thereof neglected or refused.
Mr. Chitty, in a note to his work on Bills of Exchange and Promissory Notes, gives the following form for a notice of dishonor.
“No. 5, CORNHILL, London.
Dated, 5th July, A. D. 1831. Sir, (or Gentlemen,')
I hereby give you notice that the bill of exchange, dated 1st May, 1831, last past, drawn by A. B. of in the county of C. D. of No. Street, London, and whereby the said A. B. requested the said C. D. two months after the date thereof, to pay to the said A. B. or his order, 501. and which was endorsed by the said A. B. to E. F. of, &c., and by the said E. F. to G. H. of, &c., and also by the said G. H. to you and also by you, and whereof I am now the lawful holder, was on yesterday, the 4th day of July instant, duly presented to the said C. D. for payment thereof, but was and is unpaid and dishonored, the said c. D. stating that, &c. [according to the answer given to the notary,] and I request you immediately to pay the amount to me, to prevent the expense of litigation.
“I am, Sir,
L. M. “ To I. K. Merchant, or Messrs. I. K. and Co. [according to the fact]
at in the county of -"
The notice may be somewhat abbreviated, though the substance of it must be retained. The safest and most prudent way is, to attach or give a true copy of the bill or note with all the endorsements on it, with the notice served, and refer to it in the notice, as a correct copy of the bill or note presented and dishonored.
Suppose in an action for detaining personal property, where a demand is necessary before a right of action accrues, the plaintiff should prove he demanded in writing of the defendant other personal property, and that he made a “mistake," and intended to have described the personal property in controversy in the written notice ; but that the defendant had at the time no such personal property in his possession belonging to the plaintiff, as was mentioned and described in the written notice, and from those facts should undertake to raise a presumption, that the notice when received conveyed to the mind of the defendant information, that the plaintiff demanded “the identical” personal property "in question." Would it be allowed ? There might be comparatively some ground for so holding in an action for detaining property, for in such a case a personal demand is necessary, and it may be said, that the mind, or intention of the defendant may be looked at, whereas in the case of an endorsement, a personal no. tice to the endorser is not necessary, and his liability does not depend on the state and condition of his mind, or on what he does or does not know.
Form for a Notice of Dishonor.
The following is the form now in use at the Cayuga County Bank : Auburn,
Take notice that a Promissory Note, made by
to the order of for dollars, dated at
after date, this day due, endorsed by you, was this day presented by me, at the Cayuga County Bank, where the same was made payable, and payment thereof demanded of the
of said Bank, and by him refused, and is this day protested for nonpayment. The holder looks to you for the payment of the same.
Yours, &c. To
In Boulton vs. Welsh, 3 Bing. New Cases, 688, Chief Justice Tindal, gives the following form for a protest : “Know all men, that I, A. B.
at the usual place of abode of the said
have demanded payment of the bill, of the which the above is the copy, which the said did not pay, wherefore I, the said
do hereby protest the said bill. Dated, this
The forms of protests adopted by our notaries are substantially like the one used by the Cayuga County Bank, as follows: " UNITED STATES OF AMERICA, " UNSTED ESTATE VE YARNE RICA; } Be it known, that on the
in the year of our Lord, one thousand eight hundred and at the request of 1, Josiah N. Starin, a Notary Public, duly admitted and sworn, dwelling in the City of Auburn, County of Cayuga, and State aforesaid, presented the annexed of for dollars at the Cayuga County Bank, and demanded payment thereof, which was refused.
Whereupon I, the said Notary, at the request aforesaid, did protest, and by these presents, do solemnly protest, as well as against each and every party to the said as against all others whom it may or doth concern, for exchange, re-exchange, and all costs, charges, damages, and interests, already incurred and to be incurred by reason of the non-payment thereof."
The certificate of the notary certifying to the facts mentioned in our statute, is made evidence of those facts. If the receipt of the notice is denied by the affidavit of the endorser, they are to be proved by other legal evidence. The facts to be proved are those stated in the protest. Those relate only to the acts of the holder, and not to the mind of the endorser, or the effect produced on the mind of the endorser by those acts.
Suppose the notary in the case of the Cayuga County Bank vs. Warden & Griswold, hăd certified to what the Court of Appeals states
Form for a Notice of Dishonor.
as the facts for charging the endorsers with the payment of the note in suit, viz. : that he did not describe the note in suit in the written notice of protest, but that he described another and different note, to wit: a note for three hundred dollars, and that S. Warden had no such note in the bank as the one mentioned and described in the notice, and that he put on the margin of the notice the cabalistic figures $600,* and that the “ defendants knowing the facts stated, on the receipt of the notice, could not fail 10 be apprized by it, that the particular note in suit had been dishonored”-would it have been a good and sufficient certificate under the statute? Does proving the same facts by parol give them more binding force or legal efficiency than if proved by a notarial certificate?
Unless the note is described in the notice, how can the party on whom it is served draw from it a new notice to serve on his prior endorser? Perhaps the prior endorser may not be a party to the "accessory facts” which attach to the endorser on whom the first notice is served, or perhaps other and different“ accessory facts,” may be applicable to the prior endorser, or perhaps as to him no accessory facts may exist, and he may be ignorant of the existence of those which attach to the endorser on whom
the first notice is served by the holder, then certainly the note must, even under the ruling of the Court of Appeals in the case of the Cayuga County Bank vs. Warden & Griswold, be described in the notice served on such prior endorser. Chitty on Bills, ninth Am. from the eight Lon. Ed., by 0. L. Barber, Springfield, 1839, 514 and 520,+ 2 Camp. 208. Smith vs. Mullitt. Same, 110, Marsh vs. Maxwell. Id. 373. Jameson vs. Swinton. 4 Barn. and Ald. 452. Turner vs. Leech. 5 Cowen, 303. Mead vs. Engs.
The usual course is, for the endorser on whom the first notice is served, to “re-mail” the same notice directed to the prior endorser, or otherwise properly serve it; or else make out from it a precise copy, only altering the direction, and properly serve such copy on the prior endorser. 2 Hill. 451. Bank of the United States vs. Davis. 1 Do. 263. Howard vs. Ives. 2 Hall. S. C. R. 112. Ogden vs. Dobbin.
18 Vermont R. 50, Clark vs. Stoughton et al. † But the rule is now well settled, that the holder must, in order to subject all the parties to actions at his suit, give or forward all his notices to every one of the endorsers, and to the drawer, whose residences he can ascertain, on the day after the bill or noto was dishonored ; and if he omit to give or forward such direct and distinct notice to each, he may be deprived of all remedy against the omitted party, unless some other party to the bill has given him notice of the dishonor in due time, in which case such latter notice will enure to the benefit of any holder.” Chitty on Bills, 514. Dobree vs. Eastwood, 3 Car, and P. 250.
" It is usual for the holder only to give notice to the person from whom he immediately received the bill or note, especially if he is ignorant of the residence of the other parties, and if so, his neglect to give notice to the other prior endorsers, and to the drawer, cannot, on any sound principle, deprive either of the endorsers of the right to proceed against the person who endorsed to him, and all prior parties, provided he, in his turn, has duly forwarded notice. The rule is, therefore, clearly settled, that each party to a bill or note, whether by endorsement or more delivery, has, in all cases, until the day after he has received notice, to give or forward notice to his prior endorser, and so on till the notice has reached the drawer." Chitty on Bills, 520. Darbishiro v. Parker, 6 East. 3. 2 Taunt, 224, S.C. Bayl. 5th edit. 268.