#### President, Directors & Co. of the Bank of Cape-Fear, v. James Seawell.

From Cumberland.

The notice required by law to be given to an endorser is good, if it be . sufficient to put the endorser on enquiry ; no particular form is required, it may be in words, or in writing, it may be read from a memorandum or loiter, either written or printed, signed or unsigned, bearing the name of any one or no one, for the person giving the notice adopts it as his own; and any person through whose hands a bill or note has passed, may give notice to the drawer or his prior endorser of the dishonour of the bill, although the bill or note may not have been by him at that time taken up, and such notice may be given without is having then in his hands the protest; it is sufficient (if a protest be necessary in a easel that there is one in fact.

This w?b an action of assumpsit, brought against ihe Defendant as endorser of a bill of exchange, as follows :

15 (S 5000. ’ “ Fayetteville, 7th JJecember, 183 8.

“Ninety days after sig-ht of this, my first of exchange, second of same tenor and date unpaid, pay to the order of James Seawell, five thousand dollars, value received, and place the same to account of “ Y’r very humble serv’t.

« D. OCHILTREE.

“ To Sahuei Momsy, Esq. Charleston, S.. C.”

The bill was endorsed by the Defendant, to J. Il„ Adam, and by him endorsed to the Bank of Cape-tear, and by that Bank to the Planters & Mechanics Bank of South-Carolina. On the 12th of December, 1818, the bill was accepted by the drawee, and on the 15th of March, 1819, was protested for non-payment. On the 19th of March, 1819, the. Plaintiffs received a letter, inclosing the bill of exchange, the protest of the notary, and a notice addressed to “ J. Seawell, Esq.” in the following words, via:

“ You will please to take notice, I). Ochiltree’s draft on S. >Turleya accepted by him for 5000 dollars, 00 cents, on which note you are en-*561¿oTGcr, is placed in my hands, from Üie Plantara and Mechanics Bank, tor protest. It not being sullied by the drawer, payment is' expected from you immediately.

(.-ig'ned) “ JOHN Hi ¡SfCKLSY MITCHEIX,

“ Charleston, 15th March, 1319.” « ¿Votary Public.

The r«oner of the Bank of Cape-Fear proved, that on the same day on which the. foregoing notice reached Fayetteville, he, by direction of the officers of the Bank, handed it to the Defendant ; that he never gave him any other notice, and that the name, John Hinckley Mitchell, was printed, and there was no notarial sea! affixed to it. It was farther proved, that the Defendant, a few days after, made application to the Bank of Cape-Fear, to bring suit against the acceptor, to which they replied that he was liable/, and more convenient to them; if he wished the acceptor sued, ha might take up the bill and bring suit himself. ‘

The protest, which ¡nade part of the case, purported to have been made on the loth of March, 1819, at the request of the Planters and Mechanics Bank of Soutls-Carolina;' that to the demand of payment made on the acceptor, the reply was, “ 1 cannot pay the bill, not having funds of the, drawer;” and that written notices had been sent by mail to the drawer and the endorsers.

The Defendant pleaded the, general issue ; and on the trial below, before Daniel, Judge, the. question was, principally, whether the Defendant had received Segal notice of the non-payment of the bill.

The Court, in its charge told the Jury, that the Plaintiffs were bound to make if appear in evidence, that a demand liad been made on the acceptor, when the hill was payable, and, on refusal of payment, the Defendant should have, had notice, in a reasonable time, of that fad. That the act of Assembly of 1819, made the protest of the Notary Public, prima facie evidence of the demand, suid also prima facie evidence of notice, the matmeein which he had done the same was set forth, so *562that the Court and Jury could see that it was legally a51^ ^onc *n a reasonable time.

The Court left it to the Jury to say, whether they cou^ collect, from the manner of the notary’s protest, that Seawell had notice of a demand upon the acceptor, and refusal of payment, in a reasonable time ; ami if the protest, in manner and form as it now stood, raised a presumption in their minds, that the Defendant had been regularly notified; whether the evidence of the runner of the Bank, did not rebut the inference that any other notice had ever been given to the Defendant, except that stated in the printed letter, purporting to be from John H. Mitchell, to James Seawell, and thereby rebut and oí er-róle any presumption that might arise from the protest, that a demand h&d born, made, and res,sonable notice given the Defendant of such demand and refusal to pay by the acceptor. If it did, they would find for the Defendant

The .Court further informed the Jury, that if they should be of opinion, that Seawell had not such reasonable notice as the law required, he would be still liable to pay the bill, if lie promised to pay the same, Slaving a clear knowledge of all the facts which would have exonerated him from such liability ; but if he made any promise to pay, after he might have been exonerated from the want of notice, if he was ignorant of such acts, he would not be legally liable on such promise. Was any promise made ? was the first question.

The Jury returned a verdict for the Defendant; a new trial was moved for on the ground of misdirection by the Court, as to the law of notice. New trial refused, judgment and appeal.

Gaston, for the Plaintiffs.

The form of notice of nonpayment of a bill, and the mode of giving it, is governed by the rules which apply in case of non-acceptance,— ('Dhitty on Bills, 893, 395.)

*563The reason of requiring notice at ail, is to prevent the parly from being injure'], by neglecting to take those measures of precaution anti defence, which an earlier ap-prisa! of his liability to an unexpected demand, would suggest.' — (Chilty, 315, 257.)

From tills principle, th; n, it follows, that a notification, apprising him with ieasona]jie distinctness of such liability, which shews to him the necessity of such precaution and defence, must be sufficient. Accordingly, any act of the holder, signifying the refusal of the drawee, is sufficient notice. — (GhlUv, 284 — l Term 11, 169.) Verbal notice is sufficient. If it be sufficient to put the party on enquiry, and prepare him to pay, or defend himself, ii is enough. — {Chitkj, 284, note.') Thus, a notice, in which tin note or bill is not described with certainty, is good, provided the party to whom it is given be not misled. — (2 Johns. Cases, S37 — 12 Mass. Jl. 6.) Notice is good, if from any person who is a party to the bill; it is not necessary that the holder should give it —(Cfdtty, 294-5¡) and. from the notary it is, without doubt, good. — (2 Johns, xl, 274 — 5 Foul. 375 — 18 Ibid. 230 — 2 Phillips Era. 363 addenda.)

The notice, in the present case, could net be misunderstood; the words used, “ is placed in my hands for. protest,” necessarily moan, es it has been dishonoured, and I am to make a solemn declaration of the fact. Not only has it been thus dishonoured, but the drawer has made no arrangement to take it up, and you are looked to for immediate payment.”

The act of 1819 (2 JV*ew. Rev. 1486) makes the protest of the notary public prima fade evidence of a de-maud made and notice given.

Raffin and Mordecai, for the Defendant.

It is admitted that form is not essential in a notice; but it is indispensable that a notice should give distinct information of a demand on the acceptor of a bill, or maker of a note. *564ami of his refusal to pay. This notice contains no such information, the language used is, “ it not bein'’1 settled by the drawer.” It has been said, that any act of the h°Mer is suiBcicnt notice 5 doubtless it is, if it signify the refusal of the drawee — (Chitty 284.) It will accordingly be found, in ail the precedents of declarations in cases of this kind, ijUit they are framed on the settled principle that the drawer or indorser is liable only on acceptor’s refusal to pay. — (Appendix to (Jhitty on Mils 549.) Hence it folio vs, that a demand on the acceptor should be made known to the endorser $ for no liability attaches to him until after acceptor’s refusal.

The protest, indeed, states, that demand had been made of the drawee and bis refusal, the notire does not. Where do we learn that .the Defendant ever saw the protest ? The notice here was such as to mislead the party.

But leaving out of view now, the notice, the Defendant is surely not liable, unless a demand was actually made on Murley, the drawee. Where is the evidence that such demand ever was made? Not the protest, for 1st, this is an inland bill, and no authority can be produced in which the protest was held to he evidence of the demand of an inland hill; 2d, the. transaction took place before the law of 1819 was enacted, and 3d, (he act of 1812 (2 JV*. R. 1238) amended by the act of 1819, before referred to, makes a protest prima facie evidence only of a demand and refusal, not of drawee or acceptor, but of maker of a note and drawer of a bill.

Gaston, in reply.

The objections last made, would have been proper on'the trial below, to the admissibility of the protest in evidence $ but surely, they cannot be advanced here for the first time. It is possible that a Jury may find a correct verdict on the facts disclosed in evidence, yet, if the charge of the Court were erroneous, the appellate Court will grant anew trial. This Court now will enter upon this enquiry alone, « did the Court *565below commit tiie error of which appellant complains?” As to the acts of 1812 and 1819, it cannot be supposed that the legislature intended to enact an absurdity, bio-tire of demand on drawer cannot have been meant, for sai. A protest of an inland bill is unnecessary, except for the. purpose of obtaining damages $ but if it be made, it is evidence of a demand ; in fact, the. act of 1812 declares it “ shall be evidence of a demand, as in case of foreign hills.”

The correctness of the precedents which have been read is not denied ; but the enquiry is, what amounts to proof of notice ?

Taylor, Chief-Justice.

It seems to be agreed, that there is no .prescribed form of notice, but that, as the » only reason for requiring it is to give the endorser the! earliest opportunity of resorting to the party liable to l him, any notice from which he can seasonably collect i that the bill has been presented and not paid, is sufiici-ent. That the notice in this case was calculated to ap- ] prise the Defendant of the presentment and non-pay- ' ment of the draft, and that he could not possibly be misled by it, seems to me apparent from the circumstances of the. case. The bill is dated the 7th December, 1818, and is accepted' in Charleston the 12th of (lie same month, payable ninety days aftersight, consequently it was due, allowing for the three days of grace, the 1511» of March. Now the notice is dated the 15th and coming from, and signed by a notary public, who tolls the Defendant that payment is expected from him immediately, must hav<^ forcibly convinced him tiiat a demand of payment had been made on the acceptor. Every merchant would anxiously watch the progress of a transaction to so large amount, and would know that lie could not. be looked to for payment, unless a demand had been made on the acceptor. That, in point oí fact, the notice did answer the *566purpose for which it was intended, is further apparent from the Defendant's application to ihe Dank ; for how , , could they sue the acceptor, unless he had roíase;! to pay the money when duo? The authorities generally fend to establish the, position, that rhe notice r:. unffinjesit, if. under all circumstance.-., it is aufiicien* to put. the endorser on enquiry; and that is, properly, ;» Cuestión of fact for the Jury to decide, Prudy v. Scivas (2 Johns. Cases, 337.) £ a;», therefore, of opinion that a new trial be granted.

Henderson, Judge.

Any person through whose hands a hill or ref' has passed, may gire notice to the drawer or his prior end?, raer, of the dishonour of the bill, for his prnicc.fuxi and ind mmity; although the hill or note may not hove been by him at that time taken up. And such notice, 'may he, given, as is almost universally the ease, without his having thou in his hands the protest, whir?', may he the, evide nce, of the, bill’s having been dishonoured. it, is sufficient;, (if a prof .ef he necessary,) that ikwo he one 1.: fact. Nor has fir- laiv prescribed any prrficuLnr form of notice. All that is required, is, that the party be apprised of the fact of non-payment. It re ay be in words, it may be in writing, it may be read from a memorandum or letter, either written or printed, signed or unsigned, bearing the name, of any one, or of no one.; fin* the person giving’ the notice adopts :t as his own. The only question in this case, therefore, is, did the runner of the Bank act as the agent or servant of the Bank, and was that known to Sea well '■ Or did he act as an officious inter-meddling stranger ? If in the first capacity, it was the same as if the Bank itself liad, in words, given Soaweil the same information as was contained in the printed letter, which the runner delivered to him. It should, therefore, have been left to the Jury, by the Court, whether the runner of the Bank, acted as the servant or *567agent of the Bank, in this particular, or as a mere ('¡is-in the latter capacity, he might look on it as an idle rumor, or a malignant falsehood. This view of the case, excludes out the necessity of the notary’s sign manual, and his notarial seal Lairg affixed to the letter, for the notice in ibis case ocrives its validity as coming from the Bark, end not from the notary ; although, by our law, it was competent for him also, to give notice as the agent of all concerned. Seawell, appearing a few days after at the Sank, and esq nesting the acceptor to be sued, was matter for the consideration of the Jury, in ascertaining i« what character he viewed the runr.ee of the Bank to act. The Court, has nothing to do with it.

The Jury being misdirected, I think a new trial should be granted.

Maud, Judge, concurred.