
    *Brown & Sons v. Ferguson.
    [24 Am. Dec. 707.]
    November, 1832.
    (Absent Brookk, J.)
    Bill of Exchange — What Deemed Foreign Ball — Judicial Mollee — Law of .Sister State. — Jn an action by indorsee against drawer of a bill of exchange, it is found by special verdict, that the bill was drawn in Maryland on a person in Virginia, and no law of Maryland found, declaring such a bill an inland bill: Held, the court cannot take judicial notice of any law of Maryland to that effect, unless it be expressly found; and such bill being a foreign bill of exchange, aecording to the general law merchant. it must be so regarded.
    Same — Notice—Time Allowed for Oivingvl — Every party upon a bill of exchange, even (it seems) a party who is a mere agent for collection, indorsing1 the bill, though only for the purpose of collection. is entitled to one full day, to ¿rive notice to the party next before him, in succession:
    Sauie-^Sarae - Each Party Must Exercise Due Diligence — Onus Probandi. — But the over diligence of one party to a bill, shall not supply the under diligence of others; and though the drawer or indorser sought to be charged, in fact receive notice as early as he would have been regularly entitled to it. yet the holder, in order to charge him. is bound to shew due diligence in each and every party through whose hands the bill has passed; the onus probandi, in such case, lying on the plaintiff, to prove due diligence, not on the defendant, to prove negligence.
    Same — Same—Waiver by Drawer — Case at Bar. — A bill of exchange is drawn by a creditor on his debtor, payable sixty days after date; the drawee being advised thereof, before acceptance, writes to the drawer, that he will be unable to pay the bill at its maturity; whereupon the drawer, by letter to the drawee, authorizes him. when the bill approaches maturity, to redraw on himself, in order to raise funds to honor the bill: the drawee redraws accordingly, and then the drawer re tuses to accept his bill; but no credit is given, by the holder or any other person, to the drawee, on the faith of the drawer’s authority to him so to redraw: Held, the drawer has not, by this authority to the drawee to redraw, waived notice of dishonor of his own bill, nor do the facts constitute any excuse for neglect to give such notice; nor is there any assumpsit to the holder, but only a promise to the drawee, which being without consideration is not binding.
    Special Verdict — Uncertain—Effect.—If a special verdict be uncertain, so that the court cannot say for which party judgment ought to be given, there ought to be a venire de novo; but if the verdict be not uncertain, bui the plaintiff’s case thereby shewn be a defective case, or a defective title, there should be no venire de novo, and judgment must be given for the defendant.
    This was an action of assumpsit, in the circuit court of Norfolk, brought by Brown & Sons, indorsees of a bill of exchange, against Ferguson, the drawer. $ There was a *grcatndeal of special pleading, on both sides, but the case having been tried at last on the general issue, the jury found a special verdict; and the question was, Whether, upon the case found in the verdict, and upon the merits, the plaintiffs were entitled, on any ground, to recover?
    1. It was found, in the special verdict, that the bill of exchange, on which the action was brought, was drawn on the 30th January 1817, at Baltimore, Maryland, by Ferguson a merchant of that city, on Foster & Moore merchants of Norfolk, Virginia, in favor of M’Donald & Son of Baltimore, for 3775 dollars, payable sixty days after date; and was, on the same day, indorsed in blank by M’Donald & Son for Ferguson’s accommodation, and put into the hands of a broker oí Baltimore, to be sold on Ferguson’s account. The broker sold it, the next day, to Brown & Sons, who filled up the blank indorsement" of M’Donald & Son, and made it an indorsement in full to W. & J. Cummings of Petersburg, Virginia, to whom they sent the bill for collection; so that the name of Brown & Sons, the real holders of the bill, did not appear upon it. W. & J. Cummings indorsed it in blank to Wilder, cashier of the bank of Virginia at Petersburg, who indorsed it in full to Williamson, cashier of the same bank at Norfolk, and forwarded it to him, to be presented to the drawees for acceptance, and payment at its maturity, according to the usages of the bank in such cases. The bill was presented to Foster & Moore, at Norfolk, for acceptance, and accepted, on the 24th March; and, when it came to maturity, namely, on thursday the 3rd April, it was again presented to them for payment; and payment being refused, it was, on the same day, duly protested by a notary for non-payment. The notary returned the bill, with the protest, to Williamson,, on friday morning the 4th April, which was the time at which he ought so to have returned it. Williamson sent notice of the dishonor of the bill, to Wilder the cashier at Peters-burg from whom he received it, bv the next mail, which left Norfolk in the afternoon *of Saturday the Sth (but without then returning the bill itself and protest to him) and the notice was received by Wilder at Petersburg, on monday morning, the 7th.
    2. It was not found, when Wilder gave notice to W. & J. Cummings, or when the latter put their letter in the post office at Petersburg, giving notice to Brown & Sons, or whether such notices were given at all: but it was found, that Brown & Sons addressed a letter to Ferguson, dated Baltimore, 12th April 1817, giving him notice of the dishonor of the bill, in these words —‘‘Your draft on Foster & Moore, in favor of M’Donald & Son, dated the 30th January last, at sixty days, for 3775 dollars, is this day returned under protest for nonpayment ; and we have to request that you will have the same immediately settled.”
    3. It was found, that the course of the mails, at the time, was as follows: the mail was closed at Norfolk, at one o’clock P. M. and left Norfolk at two o’clock, every tuesday, thursday and Saturday; and, if it proceeded without interruption, would reach Baltimore in three days; that is, a letter mailed at Norfolk for Baltimore, on'Saturday the 5th April 1817, would have arrived at Baltimore, in regular course, on tuesday the 8th. And a letter mailed at Norfolk for Petersburg on Saturday the 5th, would have arrived at Petersburg, in regular course, on Sunday the 6th at night, and been delivered the next morning. From Petersburg to Baltimore there was a daily mail, which was closed at nine o’clock P. M. every day, left Petersburg the next morning, and arrived at Baltimore in about forty-five hours; so that a latter mailed at Petersburg for Baltimore, on Wednesday the 9th, would have arrived at Baltimore, in regular course, on friday the 11th. But it was found, that, at that season of the year, the state of the roads between Peters-burg and Richmond, and between Fred-ericksburg and Alexandria, on the mail route to Baltimore, was generally such that delays in the mail might frequently occur, though there was no proof of any such delay having occurred *at the particu» lar period in question, namely, from the 5th to the 12th April 1817.
    
    4. It was found, that it was not the usage of the bank at Norfolk, or of the notaries there, in case of bills protested for non-acceptance or non-payment, to send notice of dishonor to the drawer, but only to the person or the bank, from which the bill was immediately received for collection.
    5. It was found, that it did not appear, that Ferguson, the drawer, in this case, had sustained any actual damage in consequence of not receiving earlier notice of the dishonor of the bill, other than what the law might presume from the other facts found.
    6. It was found, that at the time the bill in question was drawn by Ferguson, and when it was accepted by Foster & Moore, and when it was protested for non-payment, the drawees were indebted to the drawer in a sum exceeding the amount of the bill— but, that Ferguson having advised Foster & Moore that he had drawn the bill on them, they *wrote him a letter on the subject (of which they kept no copy) to which Ferguson returned an answer, dated Baltimore, March 15th 1817, wherein he said — “Your’s of the 11th ipst. at hand, and note its contents — I am sorry you will be unable to retire the draft, but am well aware of the hard times, a!nd have every disposition 'to accommodate my friends — When the draft is nearly due, you can draw on me at sixty days, fo enable you to take it up; I should like, if possible, you would lessen it — The draft, I think, is due the 1st — 4th April.” That according to the permission given them in this letter, Foster & Moore, on the 20th March, drew a bill on Ferguson, for 3650 dollars', at sixty days, in favor of J. & W. Southgate of Norfolk, who agreed to give them the cash for it, as soon as they should be advised of Ferguson’s acceptance of it: this bill was forwarded to Baltimore, and presented to Ferguson some days before the 3rd April when his own bill on Foster & Moore came to maturity; but Ferguson, notwithstanding his letter of the 15th March, refused to accept it; of which advice was received at Norfolk on the 5th or 6th April.
    7. It was found, that when Ferguson’s bill on Foster & Moore, was presented by the notary for payment on the 3rd April, they informed him of their draft on Ferguson, and of their arrangement with J. & W. Southgate in relation thereto, to enable them to meet their own acceptance, and requested him to hold up the bill, and to forbear to protest the same, saying, they were sure Ferguson would furnish them funds to take it up, for his own credit-sake; but the notary refused to comply with this request. And then, on the same 3rd day of April, .Foster & Moore made application to the officers of the bank ; and, informing- them of the arrangement they had made with Ferguson, and with J. & W. Southgate, to enable them to pay the bill, they requested that it should be held up for a day or two; in consequence of which representation, the bill itself, and the protest, were retained by the bank, till tuesday the 8th, when they were ^forwarded by mail to Wilder at Petersburg ; but, the bill and protest were so retained, merely in the expectation (founded on the statement of Foster & Moore) that they might be able to take it up, without any agreement to give them time; and, meanwhile, notice of the dishonor of the bill was forwarded to Wilder by the mail of the Sth April, as above mentioned.
    The question referred to the court, was, Whether upon the whole case, as stated in the special verdict, the plaintiffs Brown & Sons were entitled to recover the contents of the bill from Ferguson, the drawer?
    The circuit court held that they were not, and gave judgment for the defendant. Brown & Sons appealed to this court.
    Stanard and Heigh, for the appellants, said, 1st, that it was very material to ascertain the character of the bill on which the action was founded; that is, whether it was an inland or foreign bill of exchange; and this depended on the law of Maryland, where the bill was drawn and negotiated. By the law of Virginia, a bill drawn here on any other state in the union, was an inland bill, 1 Rev. Code, ch. 125, l 1, p. 483, and so, by a statute of Maryland (as they were informed) a bill drawn there on any other state in the union, was an inland bill. In Maryland also, they said, the statute of 9 & 10 Will. 3, ch. 17, was in force; whereby it is provided, that inland bills of exchange may be protested for non-payment at maturity, and that such protest shall be notified within fourteen days after to the party :ffrom whom the bills were received, who, upon producing such protest, is to repay the bills, with interest and charges from the protesting. This case must be governed by the law ox Maryland, the lex loci contractus. If this court would take judicial notice of the law of Maryland, it could be easily shewn to the court; and the plaintiffs would be entitled to judgment, since the bill was duly protested, and the protest produced to the drawer within the fourteen days. But, if the court could not take judicial notice of the law of another state, then the special verdict was defective in not finding the law of Maryland, by which alone the character and effect of the contract, and the manner in which it behoved the holders of the bill to proceed in order to entitle them to recover of the drawer, could be ascertained; and there ought to be a venire de novo.
    But, 2ndly, taking this to be a foreign bill of exchange, and that the holders were bound to proceed upon it as such, according to the general law merchant, in order to entitle them to recover against the drawer; then, they said, every party upon the bill, or indorsee, was entitled to one day, to give notice of its dishonor to the party next before him, in succession; and this, whether such parties were bankers or any other, or were themselves the owners, or in fact only agents of the holders; for an agent of the holder by indorsing a bill, no matter with what motive, made himself party to it. 4 Petersd. Abr. 468; Wright v. Shawcross, 2 Barn. & Aid. 501, note a. ; Haynes v. Birks, 3 Bos. & Pull. 599; Colt v. Noble, 5 Mass. Rep. 167. Now here, Williamson, the cashier at Norfolk, gave notice of the dishonor of the bil. (but without sending at the same .time the bill and protest) to Wilder, the cashier at Peters-burg and his immediate indorser, in due time, by the mail of the 5th April, which notice Wilder received on the 7th; he had till the 8th to communicate the notice to his immediate indorsers, W. & J. Cummings; they were to send it to Baltimore by the mail which closed at Petersburg on the 9th ; and then (supposing perfect regularity of the mails) it would have reached *Brown & Sons on the 11th, and they were bound to give notice to the drawer on the 12th. They in fact gave the drawer notice on the 12th. It was not found, that Wilder communicated the simple notice o£ the dishonor of the bill, which he first received from Williamson, to W. & J. Cummings, or that they communicated it to Brown & Sons ; but, on the other hand, it was not found, that they did not give the notices, regularly, from one to the other, in succession. It only appeared, that the bill itself and the protest, which were certainly sent from Norfolk by the mail of the 8th, and reached Petersburg on the 10th, were received by Brown & Sons at Baltimore on the 12th. It is perfectly consistent with the facts found, to suppose that Brown & Sons received the simple notice of dishonor on the 11th, and waiting till the next day to give the same notice to the drawer (as they had a right to do), and receiving xhe bill itself with the protest by the mail of the next day, they then gave notice to the drawer, of the fact of the bill being that day returned protested. Therefore. they said, for aught that appeared, the parties proceeded regularly with the bill. And, they argued, that as notice was in fact given to the drawer on the 12th, which was as early as he was entitled to it, as want of diligence was not found, and as the facts were entirely consistent with due diligence in all parties, it should be intended that due diligence was used by them all. If as early notice was given to the drawer as he was entitled to, it was not necessary to shew that it was transmitted through the mail. And they endeavoured to maintain, as a just and reasonable general rule, that whenever it appears, that a party to be charged upon a protested bill, has had notice of dishonor as early as he was regularly entitled to it, and yet insists that there has been want of due diligence in any of the parties through whose hands it had passed, so that the timely notice given him was owing to over diligence in other parties, such party ought to be held bound to shew the under diligence in any of the parties, on which he relies to discharge him from liability.
    "However, supposing the court should not think the appellants entitled to judgment on this special verdict, they said, it did not follow that the appel-lee was. Por if due diligence in each and every party through whose hands the bill passed, was not found, neither was negligence in any of them found; such negligence could only be imputed by way of inference. Tn this respect also, the verdict was imperfect, and a venire de novo should be awarded.
    3rdly. They contended, that Perguson had, by his conduct in respect to the bill in question, made himself liable to Brown & Sons, whether notice of its dishonor was regularly transmitted to him or not. It was found, that, at the time he drew the bill on Poster & Moore, and they accepted it, they were indebted to him in a greater amount; but it was also found, that, on their' representation, he had authorized them to draw on him at sixty days, to raise funds to take up the bill when it should come to maturity. This was, in effect, to give them sixty days further credit for the debt they owed him; and the case was the same as if he had drawn for the money they had contracted to pay him, sixty days before it was due; that is, in other words, before he had funds in their hands. The case, in principle, was like that of Claridge v. Dalton, 4 Mau. & Selw. 226. Perguson undertook to furnish funds to pay the bill; and the obvious effect of his promise to accept their bill on him, was to induce them to neglect any exertion to raise money by other means, to meet their acceptance of his bill; and thus his own conduct was calculated to lead to the dishonor of his bill, which, but for his promise and the breach of it, the drawees might have otherwise raised funds to take up. The authority, too, which Perguson gave Poster & Moore to draw on him, was a letter missive, which they had a right to shew to any party interested in the transaction; and they did, in fact, state to the notary and to the officers of the bank at Norfolk, that they had such authority from Perguson, that they had drawn on him in pursuance of it, and that they expected funds from that source to take up his bill on them; "all which was calculated to throw the holders of the bill, and all through whose hands it passed, off their guard, as to giving Perguson notice of dishonor. A drawer thus actively and wilfully accessory to the dishonor of his own bill, and to the failure of the holdeis to give him regular notice of its dishonor, ought not to be'allowed to allege want of such notice to-avoid his liability. A case so singular in its circumstances, ought to form an exception to all general rules, and to be determined on. reasons peculiar to itself.
    Johnson, for the appellee, as to the 1st point, said, that the general law merchant must govern this case, as it does every case of the kind, unless some local law or usage affecting it, and variant from the general law, was shewn. If it were at all material (which he did not admit) to ascertain,, whether the bill in question was a foreign or an inland bill of exchange, it was enough to say, that, according to the general law merchant, a bill drawn in Maryland, on persons in Virginia, and negotiated in Maryland, was a foreign bill, and the holders must deal with it as a foreign bill, in order to entitle them to recourse against the drawer; and that, if the holders relied on the local law of Maryland, as varying the nature of the contract, or constituting, in any way, part of their title to recover, it was incumbent on them to have exhibited the law, and had it found in the verdict. There was no uncertainty or imperfection in the verdict, in this respect; but the plaintiffs’ case, as they shewed and proved-it to the jury, and as it was accordingly stated in the verdict, was defective. It was the simple case of a foreign bill of exchange protested for non-payment by the acceptor, and not so dealt with bjr the holders as to entitle them to recourse against the drawer. >
    As to the 2nd point, he insisted, that, in this case, in order to charge the drawer, notice of the dishonor of the bill ought to have been sent by the bank at Norfolk, directly to the drawer at Baltimore: if that had been done,. the notice would have reached Perguson as early as the 8th. The -rule which allows every party to a bill one full day to give "'notice of dishonor, in succession, should be confined to parties in interest; certainly not extended to mere agents of the holders, such as W. & J. Cummings were. English authority had been cited, indeed, to shew that bankers through whose hands bills had passed, whether interested in them or not, should be allowed a day to give notice of dishonor, probably out of respect to an established course of business: but no case had gone so far as to allow, for every mere private agent for collection, having no interest in the bill, a full day to communicate notice of dishonor; and it would be most mischievous to extend the rule so far; for, if a bill passed through the hands of many agents, and each were allowed a day to give notice of dishonor to the next agent, and so on in succession, notice to the person to be charged might be postponed till it could be of no use to him. But admitting the rule, in its full extent, as the appellants’ counsel stated it, he said, there was manifestly want of due diligence in this case. If the bill itself and the protest was all that was transmitted to Brown & Sons (and their letter to Perguson of the 12th April, shewed that this was really the case) ; then it was expressly found, that these were transmitted from Norfolk to Petersburg, by the mail of the 8th, whereas they ought to have been transmitted by that of the 5th. If the simple notice of dishonor, which was sent from Norfolk to Wilder by the mail of the 5th, were relied on, then it did not appear, that Wilder, who received it on the 7th, communicated it to W. & J. Cnmmings, or that they communicated it to Brown & Sons, at all: and if they had regularly communicated it from one to another, it ought to have reached Baltimore on the 11th. Yet it appeared, that the earliest notice received by Brown & Sons, was received on the 12th. And though they gave immediate notice to the drawer on the 12th, their over diligence could not make good the under diligence of the other parties through whose hands the bill had passed. Marsh v. Maxwell, 2 Camp. 210; Turner v. Leech, 4 Barn. & Aid. 4S1, 6 Eng. C. L. R. 484. In any view of the case, therefore, there was want of due diligence to charge the drawer. KTIere too, the imperfection of the appellants’ case, was not in the verdict, but in the case itself. They were bound to shew, that notice of the dishonor of the bill was regularly given to the drawer; it was an essential part of their title to recover of him. If they had pretended, that Wilder gave timely notice to W. & J. Cummings, and they gave timely notice to Brown & Sons, it had been easy to prove the facts by those parties; and if proved, they must have been found in the verdict. As to W. & J. Cummings, it was only necessary to prove that they deposited the notice for Brown & Sons in the post office, in time to go by the mail which closed at Petersburg on the 9th April; the irregularity of the mails was not material; and if it was, it was incumbent on the appellants to shew' it.
    3rdly. The letter from Perguson to Poster & Moore, authorizing them to draw on him at sixty days, to raise funds to pay his bill on them, could not, in any way help their case. That letter contained no promise to them, nor did they act upon the faith of it. It was most a promise to Poster & Moore, and a promise without consideration, and not binding. The appellants could not possibly avail themselves of it, as an assumpsit to pay them the contents of the bill. And it was well settled, that it did not dispense with regular notice of dishonor; it only proved that Perguson had reason to apprehend that the bill would be dishonored; but even positive knowledge of dishonor was not equivalent to notice. Nicholson v. Gouthit, 2 H. Black. 609; Staples v. O’Kines, 1 Esp. 332; Clegg v. Cotton, 3 Bos. & Pull. 239; psdaile v. Sowerby, 11 East 114, and the other cases collected in Chitty on Bills, 264, & seq.
    
      
      BiII of Exchange — See generally, monographic note on “Bills, Notes and Checks’’ appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      Same — Notice—Time Allowed for Giving. — In discussing this subject, Haymond, P., in Cox v. Boone, 8 W. Va. 509. cites the principal case.
      To the point that knowledge of dishonor does not constitute notice, the principal case was cited in Bank of Old Dominion v. McVeigh, 29 Gratt. 559.
    
    
      
      SpeciaB Verdict —Uncertain—Effect.—The proposition laid down in the last headnote — that if a special verdict is imperfect by reason of any ambiguity or uncertainty, so that the court cannot say for which party judgment ought to be given, there ought to be a venire Oe novo, but that, if the verdict be not ambiguous or uncertain, in itself, but the case made by the plaintiff is a defective case, or a defective title, then the judgment should be for the defendant and a venire de novo should not be granted —has met with approval in several subsequent cases. See, citing the principal case, Taylor v. Hill, 10 Leigh 466; Anderson v. Com., 18 Gratt. 301; McCrowell v. Burson, 79 Va. 295: Oney v. Clendenin. 28 W. Va. 43; Williams v. Ewart, 29 W. Va. 668, 2 S. E. Rep. 886.
      Same — Inferences by the Court. — Although it is an inflexible rule that the court upon a special verdict cannot infer other facts from those found, yet it is the province of the court to make all legal inferences from the facts found in the verdict. Layne v. Norris, 16 Gratt. 242, citing the principal case; Robertson v. Ewell, 3 Munf. 1; Betty v. Horton, 5 Leigh 615; Charlton v. Gardner, 11 Leigh 281, and Purcell v. Wilson, 4 Gratt. 16.
      §It did not appear, that any suit had been brought on the bill in Maryland, though defendant resided at Baltimore: this action was brought many years after the transaction, against Ferguson, then at Norfolk. — Note in Original Edition.
    
    
      
      Allowing: each party one day to give notice of the dishonor of the bill to the party next before him,— ■Williamson, to whom the bill was returned protested by the notary on friday morning the 4th April, sent notice to Wilder in due time by the mail from Norfolk of Saturday the 5th. Wilder received it on monday the 7th, and ought to have given notice to W. & J. Cumminffiu on tuesday the 8th. They ought to have forwarded notice to Brown & Sons, the realholders, or to M’Donald & Son, thefirst indorsers, by the mail which closed at Petersburg on Wednesday the 9th; and then the notice would have reached Baltimore, in regular course of mail, on friday the 11th; and the notice should have been given to Ferguson, the drawer, on the 18th. But as Brown & Sons, in their letter to Ferguson, dated the 12th, stated that the bill was that day returned under protest — therefore, they did not receive any notice of its dishonor on the 11th; and either Wilder did not give the notice to W. & J. Cummings on the 8th; or, if he did, they did not send the notice to Brown & Sons, by the mail which closed at Peters-burg on the 9th; or there was some irregularity in the mails. Yet, by the over diligence of Brown & Sons, who gave notice to Ferguson, the drawer, on the same day they themselves received the bill and protest, he had notice on the 12th, which was as early as he would have been entitled to it, if the most perfect regularity had been observed. — Note in Original Edition.
    
    
      
      The Mil and protest thus sent from Norfolk liy the mail of the 8th, would have arrived at Peters-bm it. in regular course of raai). on the 9th at night, and been delivered to Wilder in the morning of the 10th ; and if they were sent to Brown & Sons by the next mail from Petersburg, which left that place in tile morning of the 11th, they would haye arrived at .Baltimore on the 12th. In the letter of Brown & Boris to Ferguson, dated the 18th. they said that the bill had been that day returned under protest: whence, it seemed, that the return of the bill itself with the protest was the first notice of its dishonor received by them, and that, this was on the 12th; and so the court understood the transaction.- — Note in Original Kdition.
    
   CARR, J.

This case was admitted, in the argument, to depend entirely on the special verdict; I have therefore confined my examination to it. Two points were considered as arising out of it: 1. Whether a regular notice of non-payment of the bill, was necessary, under the circumstances, to charge the drawer? 2. Whether such notice was given?

*Upon the reason and justice of the case, I at first felt doubts, whether the drawer was entitled to strict commercial notice. There is no doubt, that he was au-> thorized to draw the bill, for the jury find, that the drawees owed him the sum for which it was drawn. This, under the general rule, would entitle the drawer to notice. But it is also found, that before the bill was presented for acceptance, Poster & Moore, the drawees, having been advised of it, wrote a letter to Perguson, the drawer, on the subject; in answer to which letter Perguson writes — '“I am sorry you will be unable to retire the draft”' — '“When the draft is nearly due, you can draw on me at sixty days, to enable you to take itup.” It is found also, that when the time for paying the bill drew near, the drawee did draw on Perguson for the purpose of meeting it; that this bill was sold, on condition that Per-guson should accept it; and was sentón and presented to him, and dishonored by him. •These facts seemed to me to shew, clearly, that Perguson had, if not a perfect knowledge, the strongest grounds to conclude, that Foster & Moore would not pay the bill he had drawn on them; and, therefore, was not entitled to strict notice. An examination of the subject, however, has satisfied me, that my first impressions are in opposition to the fixed and settled law of the subject. Nicholson v. Gouthit, 2 H. Blac. 609, is the leading case on the point, which has been since uniformly followed. In Esdaile v. Sowerby, 11 East 117, the indorser of a bill had full knowledge of the bankruptcy of the drawer, and the insolvency of the acceptor, before and at the time when the bill became due; yet the court held, that this did not dispense with the necessity of giving such indorser regular notice of the dishonor of the bill. The case of Staples v. O’Kines, 1 Esp. Rep. 332, seems directly in point to the present case: in an action against the drawer of a bill, the defence was want of notice; the plaintiff called the acceptor, who proved, that when the bill was drawn, he was indebted to the defendant in more than the amount, but that he then represented to *the defendant, that it would not be in his power to provide for the bill, when it should become due, and that it was, therefore, then understood between them, that the drawer should provide for it: and it was contended that this superseded the necessity of giving the drawer notice: but lord Kenyon held that it did not, and non-suited the plaintiff. There are many more cases to the same point. The authority of these adjudications, and the reason on which they are founded, satisfy me, that the drawer, in the case before us, was entitled to regular notice of the non-payment of the bill by Poster & Moore.

Has he received such notice? The general rule is, that each party must give notice of dishonor of a bill, as soon as he reasonably can; and this reasonable time is a question of law, depending upon the circumstances of each case. Where persons live in the same town, notice must be given the next day; where they live at different places, notice should be sent by the next post; each party having a full day to give notice, but not so that the over diligence of one shall be made to supply the under diligence of another. To this stanard, let us bring the facts found by the special ver-diet. They are substantially these: the bill was protested on the 3rd April and returned to the bank at Norfolk, on the 4th. By the next mail, which left Norfolk on the 5th, a notice of the dishonor of the bill (not the bill and protest) was forwarded to Wilder, which reached him on the 7th; thus far, all was regular. The jury has not found wnen Wilder gave notice to W. & J. Cummings, nor when they gave notice to Brown & Sons; but it is found that there was a daily mail from Peters-burg to Baltimore, reaching the latter place in about forty-five hours, and that Brown & Sons gave Ferguson notice of the nonpayment and protest on the 12th April, at Baltimore; saying “Your draft &c. is this day returned under protest for non-payment.” It is further found, that the bill and protest were forwarded from Norfolk to Wilder on the 8th April, being the second mail after the protest. Prom these facts, the conclusion seems *irresistible, that there must have been a delay of twenty-four hours more than there ought to have been, in the arrival of the notice at Baltimore: for Wilder receiving notice on the 7th, was bound to give it to W. & J. Cummings on the 8th; and they ought to have given it to Brown & Sons by the mail of the 9th; which if they'had done, it would have reached Baltimore on the 11th ; whereas no notice was in fact received by Brown & Sons, at Baltimore, till the 12th. And though Brown &'Sons gave immediate notice to Ferguson on the same day, yet this over diligence on their part could not cure the want of due diligence in any of the parties standing before them.

No doubt there might have been causes excusing the delay ; but if such had existed, they ought to have been found ; for in special verdicts, the maxim de non apparenti-bus et non existentibus eadem est ratio, applies with peculiar force. Standing as they do, I cannot but say, that the facts found shew such negligence as under the settled rule discharges the drawer.

I have come to this conclusion, not without a feeling of reluctance; for, like some other questions strict! juris, this requisition of exact notice does not, in the case before us, seem to lead to the justice of the case. But we must recollect, that the rule which prefers a private hardship to a public inconvenience, applies to no subject of the law, with more force than to that in which the mercantile world is concerned.

I do not think the law of Maryland can have any influence on the case. The judgment should be affirmed.

CABELL, J. I am of the same opinion.

TUCKER, P.

The bill of exchange in this case, having been drawn in Marj-land by a merchant of Baltimore on a house in Virginia, was by the law merchant a foreign bill; for as to such bills the several states of the union are held to be foreign to each, other; Longsdale v. Brown, 3 Wash. *C. C. R. 404. This decision is in conformity with the legislative understanding of the matter: the legislature of Virginia has thought it necessary to provide, that bills drawn in Virginia on other states, shall not be taken to be foreign bills; a provision certainly unnecessary, if these commercial securities had been deprived of that character by the mere act of the adoption of the federal constitution. As to bills drawn in other states on Virginia, the statute is however silent. It may well indeed be doubted, whether it could have declared bills drawn and negotiated elsewhere, though drawn in Virginia, to be inland bills; since this would have been to declare the law of the contract of another jurisdiction.- Be this as it may, it has not thought proper to do so; and, therefore, the principle of the law merchant remains unchanged, in its application to this bill, unless the law of Maryland has expressly enacted otherwise: ‘this is not found by the verdict, and cannot be presumed. Considering the bill in this light, the question is, Whether there has been due diligence on the part of the holders?

The transaction .relative to the engagement of Ferguson to accept the bill of Foster & Moore, for the purpose of enabling them to take up his bill on them, has been introduced with a view to strengthen the plaintiffs’ case. I do not think it varies it. It neither amounted to an assumpsit, of which the holders of the bill could avail themselves, nor can it have the effect of a waiver of notice. 1st, It cannot amount to an as-sumpsit to Brown & Sons; it was only an engagement with Foster & Moore to accept; and this without consideration, for they were Ferguson’s debtors. It was, therefore, revocable at any time, until either Brown & Sons, or some third person, on the faith of that engagement, had advanced their money or given credit to Foster & Moore. Had J. & W. Southgate, for instance, purchased absolutely, Ferguson might have been bound. But their purchase was qualified by a condition, that the bill should be accepted before they advanced their money; thus leaving Ferguson still at liberty to accept or to refuse payment of the bill. So, *if Brown & Sons had accepted a bill of Foster & Moore on Ferguson, in payment of the first bill, or had even given credit on the faith of Ferguson’s engagement to accept, Ferguson might have been bound. But the verdict expressly finds, that they gave no credit; they stood upon their rights, as holders of the protested bill, which is the foundation of the present controversy. 2ndly, The agreement to accept and the knowledge of the drawer in anticipation, that the bill would not be paid, did not amount to a waiver of notice. It has been long since settled, that notice or rather knowledge by anticipation, will not dispense with the necessity of notice of non-payment. Even the known insolvency of the drawee will not have that effect; for, as many means of securing payment may exist through the assistance of friends or otherwise, it is reasonable that the drawer or indorsers shall have notice that the holder designs to look to them, in order that they may have the opportunity of availing themselves of such means. Knowledge of the fact of insolvency, or that a bill will be dishonored, is one thing, and notice of protest for non-payment is another. For, until the drawer or indorser receives such notice, he has no reason to conclude that resort will be had to him. He is lulled into security, instead of being awakened to the necessity of providing for his own indemnity. Tf he receives no notice of dishonor, he may reasonably conclude, either that contrary to expectation, the bill has been paid, or that the acceptor has been able to provide for it by redrawing or otherwise, or that the holder, notwithstanding the failure to pay at maturity, may hold up the bill from his confidence in the house, and may prefer to look to the acceptor as a matter of convenience. Thus, if a bill were drawn in Richmond on London, in favor of a London merchant, and was not paid at maturit3’, the payee might nevertheless find it more convenient to arrange with the acceptor in London, than to send back the bill to Virginia for collection. When, therefore, notice is not given, the drawer is diverted from the necessity of providing for his own safety, by the supposition that the holder has given' credit to the acceptor. A *distinction, however, has been attempted, in this case, because it appears the holders here were informed, that the drawer had notice by anticipation. I do not think this makes any difference. The drawer still had a right to due notice, in order that, knowing of the intention to look to him, and being distinctly informed that what had been anticipated had really occurred, and that no provision was made for taking up the bill, he might provide for his own safety. Even, if the case of Brett v. Levitt, 13 East 214, be deemed altogether reconcileable with the current of decisions from Nicholson v. Gouthit to Esdaile v. Sowerby, yet that case would not sustain this: for there, it appeared, that the holder received notice of the fact of the anticipated dishonor from the drawer himself, and this too upon his own express application to the drawer to liuow if the bill would be paid; but here, the drawer was not at all aware, that the holder had been informed that he (the drawer) had had notice that the bill would not be paid. He could not, therefore, attribute the failure of the holder to give notice, to any such cause, but was left to the conclusion that the holder did not design to look to him, and had either given time, received payment contrary to expeetci/tion, or had otherwise arranged with the acceptor. Nor could Eerguson’s offer to accept a new bill have lulled the holders into security; since they must have been aware, that it was a revocable promise until some bill had been negotiated upon the faith of it; and, in fact, they were not lulled into security; for, though they held up their protested bill for a few days, they stood upon their rights as holders, and proceeded to give notice of the protest for nonpayment.

Was notice duly given? The bill was returned by the notary to the bank on the 4th April; notice was sent to Wilder on the 5th, and he received it on the 7th; this was in due season. If he gave notice to W. & J. Cummings on the 8th, and they transmitted a notice to the parties in Baltimore, on the 9th, it would have reached there on the 11th; and then a notice to the drawer on the 12th, would have been good. Now, the drawer did receive notice on *the 12th, which was as soon as he had a right to receive it, provided the intermediate parties had proceeded regularly. But it is not enough, unless it is also shewn that each indorsee gave notice within a clay after receiving it: if there be a defect in any link of the chain of notices, it is fatal to the holder’s demand. We can not eke out the under diligence of one party, by the over diligence of another. This is settled by authority, and upon sound reason: for, as the recourse of any immediate indorser against those who lie behind him, arises from his own liability to pay the bill to him to whom he passed it, the laches which takes away his liability, takes away theirs also. The instant such laches occurs in any, all who might otherwise have been liable are discharged at once. It would be unreasonable to permit the over diligence of a prior indorser, to give new Life to a responsibility which had once been annihilated by the negligence of another party to the bill. It is, therefore, not sufficient, that, in the aggregate, the drawer had notice as soon as he had a right to expect it. The plaintiff must shew that each indorsee has given regular notice. The onus as to this matter is upon him. He recovers upon the ground, that he has used diligence and given due notice ; and, therefore, he must shew due diligence and due notice. And it is not more incumbent upon him to prove that the drawer in fact received notice of the non-payment and protest, than it is to shew that the notices have all been regular in the several gradations. This is a part of his title; and seems, moreover, to be a matter which cannot be permitted to rest upon mere inferences, but must be expressly proved ; Lawson v. Sherwood, 1 Stark. Rep. 314; 2 Eng. C. L. R. 405. In this case, such proof must have been in the power of the appellants, if the fact was as their case requires. W. & J. Cummings and Wilder must have been able to establish when they respectively gave notice, if they gave it at all. If we look to the special verdict, it is a blank as to these notices. It does not appear, that any other notice was forwarded from Peters-burg to Baltimore, except the bill and j:>ro-test; and these could not have been sent on until the *10th, as they left Norfolk on the 8th, and must have reached Petersburg on the 10th, according to the usual course of mail. This was too late, and accordingly they were not received until the 12th, as the letter of notice of Brown & Sons explicitly proves.

Thus, then, it appears the special verdict does not set forth a good right of action on the part of the plaintiffs. The3' have failed to establish the various facts upon which alone the defendant could be made liable. Peeling well satisfied of the hardship of the case, and that the rigorous rules as to these commercial securities, which a just policy requires to be inflexible, probably work injustice in this case, I have earnestly revolved this matter in my thoughts, with a view to discover whether a venire de novo could with propriety be awarded. I am satisfied, upon the maturest reflection, that it cannot. If a verdict is indeed imperfect by reason of any ambiguity or uncertainty, so that the court cannot say for which party judgment ought to be given, a venire de novo ought to be awarded. Brown & Rives v. Ralston & Pleasants, 4 Rand. 504. But if the verdict be not ambiguous or uncertain in itself, but the case made by the plaintiff is a defective case, or a defective title, then the judgment should be for the defendant and a venire de novo should not be granted. Bellows v. The Hallowell and Augusta Bank, 2 Mason 31. Now, in this case, there is nothing ambiguous or uncertain ; but there is a total failure to trace down the notices from Wilder to Ferguson, through W. & J. Cummings ; which was essential to the plaintiffs’ right of action. With every disposition therefore to have sustained the plaintiffs’ action, if it could have been done consistently with settled rules, I am compelled to give my judgment against them; saying with the lord chief justice in Nicholson v. Gouthit, in reference to these commercial securities, that “it is, perhaps, better to adhere to a rule, however strict, than to relax it,” although the justice of the case be, without doubt, on the side of the party against whom it operates.

Judgment affirmed.  