notice of sion. omis due notice, on account of a mistake by mis-directing a letter contain- 1st. When ing such notice. But where the drawer of a bill, a few days before it non-acceptbecame due, stated to the holder, that he had no regular residence, and ance is nethat he would call and see if the bill had been paid by the acceptor, it cessary; & was held that he was not entitled to notice of its dishonour, he having what excuthus dispensed with it ; and if the drawer, on being applied to by the ses holder before a bill is due, to know if it will be paid, answer, that it will not, he is not entitled to notice of non-payment ; and where one of several drawers of a bill was also the acceptor, it was held, in an action against the drawers, that proof of these circumstances dispensed with the necessity for proving that notice of non-payment was in fact given, because notice to one of several joint drawers of a bill is suffi-[212] cient, and the acceptor being himself a drawer, he had notice of his own default. (274) Phipson v. Kneller, 4 Campb. 285. 1 Stark. 116. S. C. Brett v. Levett, 13 East, 214. Porthouse v. Parker and others, 1 Campb. 82. in which Ld. Ellenborough held, that the plaintiff was not bound to prove that the defendants had received ex press notice of the dishonour of the bill (274) The doctrines in some of the cases cited in this section, do not seem easily reconcileable; it will be necessary for the judicious reader carefully to weigh and consider them. Many decisions have occurred in the United States on the same questions. It seems to be generally acknowledged that the want of effects in the hands of the drawee will be a sufficient excuse as against the drawer for not giving him notice of the nonacceptance or non-payment of a bill. Hoffman v. Smith, 1 Caines' Rep. 157. Tunno v. Lague, 2 John. Cas. 1. Frothingham v. Price's Ex. 1 Bay's Rep. 291. Warder v. Tucker, 7 Mass. Rep. 449. But if the drawer have a right to draw in consequence of engagements between himself and the drawee, or in consequence of engagements made to the drawee, or from any other cause, he ought to be considered as drawing upon funds in the hands of the drawee, and as therefore entitled to strict notice. French v. Bank of Columbia, 4 Cranch, 141. The court of King's Bench have also recently declared that a bona fide reasonable expectation of assets in the hands of the drawee had been several times held to be sufficient to entitle the drawer to notice of the dishonour, though such expectation may have ultimately failed of being realized. Reuker v. Hiller, 16 East's Rep. 43. And if a note be made for the accommodation of the indorser, and the money raised on it by a discount in the market, is in fact received by him, he may be considered as a drawer without funds in the hands of an acceptor, and not entitled to notice of non-payment by the maker, 4 Cranch, 141. Agan v. MManus, 11 John. Rep. 180. But the same reasons do not appear to exist where the note has been made and discounted for the accommodation of the maker; and the indorser is in such case therefore entitled to strict notice, 4 Cranch, 141. And an indorser of a bill for the accommodation of the drawer is in all cases entitled to strict notice, although the drawee had no effects of the drawer in his hands. Warder v. Tucker, 7 Mass. Rep. 449. Scarborough v. Harris, 1 Bay's Rep. 177 Frothingham v. Price's Ex. 1 Bay's Rep. 291. May v. Coffin, 4 Mass. Rep. 341. Brown v. Maffey, 15 East's Rep. 216. Hussey v. Freeman, 10 Mass. Rep. 86. And although some doubt once existed upon the subject, it seemes now to be settled in the United States that the bankruptcy or insolvency of the drawer of a bill or maker of a note, at the time when the note or bill was given or was payable, is no excuse for not giving notice of the non-payment to the indorser, even though the indorsement should have been for the mere accommodation of the drawer or maker. May v. Coffin, 4 Mass. Rep. 341. Farnum v. Fourle, 12 Mass. Rep. 89. Crossen v. Hutchinson, 9 Mass. Rep. 205. Sanford v. Dillaway, 10 Mass. Rep. 52. Jackson v. Richards, 2 Caines' Rep. 343. Bank of America v. Varden, 2 Dal. Rep. 78. Mallory v. Kirwan, 2 Dall. Rep. 192. Warder v. Carson's Executors, 2 Dall. Rep. 233. Bank of America v. Petit, 4 Dall. Rep. 127. Ball v. Dennis, 4 Dall. Rep. 168. and see Agan v. M Manus, 11 John. Rep. 189. Hussey v. Freeman, 10 Mass. Rep. 84. Stothart v. Parker, Overt. Rep. 261. contra. And in England it has been recently held, where a person lent his indorsement on a note to the drawer, who was the bankrupt, payable on demand, for the purpose of enaCHITTY ON Bills. Сс 1st. When non-accept In general, the drawer will, as already observed, be at liberty to renotice of but the presumption that he could not have been damnified, raised by ance is ne- the proof of his having no effects in the hands of the drawee, by prov cessary; & ing that he has really sustained damage; and a surety for the accep what excu- tor, who has been obliged to pay the amount of the bill in consequence omis- of the acceptor's bankruptcy, need not in an action against him for money paid, prove the due presentment of the bill, &c. ses sion. A neglect to give immediate notice may however be excused by some other circumstances besides the want of effects. Thus, the absconding or absence of the drawer or indorser may excuse the neglect to advise him ; and the sudden illness or death of the holder, or his agent, or other accident, may constitute an excuse for the want of a Ante, 207, 8, but see Rogers v. Ste- Warrington v. Furbor, 8 East, 242. 1 M. & S. 545. Bewes v. Howe, 5 Taunt 30. There is no reported case deciding whether accident will excuse a delay in giving notice of non-acceptance or nonpayment. In Hilton v. Shepherd, 6 East, bling him to raise money on that security by a deposit thereof with his banker, that a demand and notice was necessary to charge the indorser, especially as in that case there had been a renewal of the credit for a second term, without the consent or knowledge of the indorser. Smith v. Becket, 13 East's Rep. 187. Where a bill was drawn, accepted and indorsed, by several indorsers, for the accommodation of the last indorser, and the drawee had no effects in his hands, but this fact was not known to the defendant, who was a prior indorser, it was held that the defen. dant could not be charged without strict notice of the dishonour of the bill, because he would on payment have been entitled to call upon the last indorser, for whom he was, in fact, security. Brown v. Maffey, 15 East, 216. And a person, who, without consideration, but without fraud, indorses a bill, in which both drawer and acceptor are fictitious persons, is entitled to strict notice, for he has only placed himself in the situation of a common indorser. Leach v. Hewitt, 4 Taunt Rep. 731. When upon a bill payable at so many after sight, the holder presents the bill for acceptance, and elects to consider what passes on such presentment as a non-acceptance, (though in strictness he might have otherwise acted,) and protests the bill for non-acceptance, he is bound by such election, as to all the other parties to the bill, and must give due notice to them of the dishonour accordingly, otherwise they will be discharged. Mitchell v. Degrand, 1 Mason's Rep. 176. It lies on the holder of a bill to prove that the drawer had no effects in the hands of the drawee in order to excuse the want of notice. Baxter v. Graves, 2 Marsh. 152. The drawer of a bill is entitled to notice of its dishonour though the drawee be not indebted to him either when the bill was drawn or fell due provided the drawer had reasonable ground to believe that it would be honoured, and a written authority from the drawee to the drawer for the latter to draw is sufficient ground. Austin v. Rodman, 1 Hawks, 194. Where the drawer of a bill is a partner of the house or firm on which it is drawn it is not necessary for the holder to prove that notice of its dishonour was given to the drawGowan v. Jackson, 20 Johns. 176. er. Where a demand cannot be made on the drawer, notice must nevertheless be given to the indorser, and that within as short a period after having ascertained that the demand could not be made as if the demand had been made. Price v. Young, 1 M'Cord, 399. Where there are any funds of the drawer in the hands of the drawee, or if at the time the bill is drawn there are circumstances sufficient to induce a reasonable expectation that the bill will be accepted or paid, the drawer is entitled to notice of its dishonour, and to due diligence in the presentment of it. Robinson v. Ames, 20 Johns. 146. Thus where there were dealings and an open account between the drawer and drawee and the latter had received considerable shipments of cotton from the drawer, and ac cepted previous bills, but on account of a fall in the price of the cotton its value was not equal to the amount of the accepted bills and the last bill drawn was therefore protested for want of funds, it was held that the drawer was entitled to notice. Ibid. of ance is ne ses omis regular notice to any of the parties, provided it be given as soon as pos- 1st. When sible after the impediment is removed. And the holder of a bill' of notice exchange is excused for not giving regular notice of its being dis- non-accepthonoured to an indorser, of whose place of residence he is ignorant, if cessary; & he use reasonable diligence to discover where the indorser may be what excufound. And Lord Ellenborough observed, "When the holder of a bill of exchange does not know where the indorser is to be found, it sion. would be very hard if he lost his remedy by not communicating immemediate notice of the dishonour of the bill; and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance; but if he uses reasonable diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered in due notice of the dishonour of the bill, within the usage and custom of merchants." And it has been considered to be sufficient, when a promissory note has been dishonoured, to make inquiries at the drawer's for the residence of the payee." But in a subsequent case it was held, that, to excuse the not giving of regular notice of the dishonour of a bill, it is not enough to 15, in notes, Garrow and Russell contended, that whether due notice has been given in reasonable time, must, from the necessity of the thing, be a question of fact for the consideration of the jury. That it depended upon a thousand combinations of circumstances which could not be reduced to rule; if the party were taken ill, if he lost his senses, if he were under duress, &c. how could laches be imputed to him? suppose he were prevented from giving notice within the time named by a physical impossibility. Such a rule of law must depend upon the distance, upon the course of the post, upon the state of the roads, upon accidents, all which it is absurd to imagine. Lord Kenyon, C. J. I cannot conceive how this can be a matter of law. I can understand that the law should require that due diligence shall be used, but that it should be laid down that the notice must be given that day or the next, or at any precise time, under whatever circumstances, is, I own, beyond my comprehension. I should rather have conceived that whether due diligence had or had not been used was a question for the jury to consider, under all the circumstances of the accident, necessity, and the like. This, however, is a question very fit to be considered, and when it goes down to trial again I shall advise the jury to find a special verdict. I find invincible objections in my own mind to consider that the rule of law requiring due diligence, is tied down to the next day. In Darbishire v. Parker, 6 East, 3. it was held, that reasonable time is a matter of law for the court. h Turner v. Leach, Sittings at Guildhall, post, Hilary Term, 1818, cor. Lord Ellenborough. Assumpsit by the eleventh indorser of a bill of exchange, against the eighth indorser, for default of payment. It appeared, that in due time on the 4th September, 1817, the returned bill, with potice of the dishonour, was left at the house of Richard Bennett, the tenth in- i Poth. pl. 144; but a mistake in directing Bateman v. Joseph, 2 Campb. 461. 1 Gow's Rep. 81. What is due diligence, In Bateman v. Joseph, 2 Campb. 462. m Sturges v. Derrick, Wightw. 76. non-accept 1st. When show that the holder, being ignorant of his residence, made inquiries notice of upon the subject at the place where the bill was payable." However, ance is ne- sending verbal notice to a merchant's counting-house is sufficient, and if cessary; & no person be there in the ordinary hours of business, it is not necessary what excu- to leave or send a written one, nor is it necessary to make inquiries after omis- the party, so as to give him notice elsewhere."(1) ses sion. Beveridge v. Burgis, 3 Campb. 262. This was an action by the indorsee against the indorser of a bill of exchange. The plaintiff had given the defendant no notice of its dishonour till several months after it became due; the excuse alleged for this omission was, that the plaintiff was ignorant of the defendant's address, which did not appear upon the bill, but the only evidence adduced to show that he had used any diligence to discover this, was, that he had made inquiries upon the subject at a house in the Old Bailey, where the bill was made payable by the acceptor. Lord Ellenborough. Ignorance of the indorser's residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here? How should it be expected that the requisite information should be obtained where the bill was payable? Inquiries might have been made of the other persons whose names appeared upon the bill, and application might have been made to persons of the same name with the defendant, whose addresses are set down in the directory. Plaintiff nonsuited. • Goldsmith and others v. Bland and others, cor. Lord Eldon, 1st March, 1800. Bayl. 127, note 1. The plaintiffs sued the defendants as indorsers of two foreign bills, and to prove notice, the plaintiffs showed that they sent a clerk to the defendant's counting-house near the Exchange, between four and five o'clock in the afternoon, nobody was in the counting-house; the clerk saw a servant girl at the house, who said that nobody was in the way, and he returned, having left no message with her. Lord Eldon told the jury, that if they thought the defendants ought to have had somebody in the counting-house at the time, he was of opinion that the plaintiffs had done all that was necessary by sending their clerk; that the notice was in law sufficient, if the time was regular, whether the defendants were solvent at the time or not. The jury thought the defendants ought to have had somebody in the counting-house at the time, and that the plaintiffs had done all that was necessary. Verdict for the plaintiffs for 16331. Post, 220. Cross and others v. Smith and others, 1 M. & S. 545. Notice to the drawers of non-payment of a bill of exchange by sending it to their counting-house during hours of business on two successive days, knocking there, and making noise sufficient to be heard by persons within, and waiting there several minutes; the inner door of the counting-house being locked, is sufficient, without leaving a notice in writing, or sending by the post, though some of the drawers lived at a small distance from the place. See also Bowes v. Howe, 5 Taunt. 30. Post, 220. (1) Where the holder, who was ignorant of the indorser's residence, sent the notice to A., who was acquainted with it, requesting him to add to the direction the indorser's place of residence, it was held, that reasonable diligence had been used. Hartford Bank v. Stedman, 3 Conn. Rep. 489. It is not incumbent on the indorser of a promissory note to show the holder where the maker is to be found, so that he may make a demand on the maker, where no application is made to him by the holder. Duncan v. MCullough, 4 Serg. & Rawle, 480. If the maker of a promissory note is not to be found when the note becomes due, a demand on him of payment is not necessary in order to charge the indorser. But it is necessary to prove either a demand, or due diligence in endeavouring to make a demand. Duncan v. M'Cullough, 4 Serg. & Rawle, 480. When the holder of a bill was ignorant of the drawer's place of residence, but it ap peared that he had not used due diligence to make inquiry, a notice put into the post office directed to a place other than that in which the drawer lived, was held to be insufficient. Barnwell v. Mitchell, 3 Conn. Rep. 101. Where the traveller of A., a tradesman, received in the course of business a promis sory note, which he delivered to his master, without indorsing it, and the note having been returned to A. dishonoured, the latter not knowing the address of the next prece ding indorser, wrote to his traveller, who was then absent from home, to inquire respecting it; it was held, that A. was not guilty of laches, though several days elapsed before he received an answer, and gave notice to the next party, as he used due diligence in ascertaining his address. Baldwin v. Richardson, 1 Barn. & Cressw. 245. A notice of protest need not state who was the holder of the bill. Shreive v. Duckham, 1 Litt. 194. notice of ance is ne The holder of a bill of exchange is also excused for not giving notice 1st. When in the usual time, by the day on which he should regularly have given notice, being a public festival, on which he is strictly forbidden by his non-acceptreligion to attend to any secular affairs." But the loss or destruction of cessary; & an accepted bill affords no excuse for the delay in giving notice of non- what excupayment. Nor would the bankruptcy of a drawer or indorser of a bill, ses or indorser of a note, excuse the neglect to give notice of the default sion. of the drawee, to the bankrupt or his assignee." It has already been observed, that if the drawee offer a conditional or partial acceptance, the holder must, provided he means to resort to the drawer and indorsers, give notice of such acceptance; it is said, however, that where the drawee refuses to accept absolutely, and makes a conditional acceptance, the terms of which are complied with, no notice of the manner in which the bill has been accepted is necessary; and that where the drawee undertakes by his acceptance to pay only part of the bill, the parties to the bill are bound to the extent of his acceptance, and an omission to give notice of such partial acceptance, does not discharge them from the obligation to that amount. omis tice of non The conduct which the holder must adopt on the dishonour of a 2dly. The foreign bill, differs materially from that which he must pursue in the protest and case of an inland bill. Whenever notice of non-acceptance of a fo-form of noreigh bill is necessary, a protest must also be made, which, though acceptance mere matter of form, is, by the custom of merchants, indispensibly necessary, and cannot be supplied by witnesses or oath of the party, or in any other way,* and as it is said, is part of the constitution of a foreign bill of exchange; and the mere production of this protest attested by a notary public, without proof of the signature or affixing of the seal P Lindo . Unsworth, 2 Campb. 602. Notice of the dishonour of a bill was sent to the plaintiff in London, the 8th of October, but he being a Jew, and the 8th of October being the day of the greatest Jewish festival throughout the year, on which all Jews are prohibited from attending to any secular affairs, gave no notice by the post of that day to the defendant who lived at Lancaster, but sent it to him by the post of the 9th. Lord Ellenborough held, that the plaintiff was excused from giving notice on the 8th on the ground of his religion, and the notice sent off on the 9th was sufficient. The plaintiff had a verdict. Poth. pl. 125. Thackray v. Blackett, 3 Campb. 164. Manning's Ind. 69, ante, 157. Cooke's Bank. Law, 168. Cullen's Band. Law, 100. Montague's Bank. Law, 143, note (r.) acc. Ex parte Smith, 3 Bro. C. C. 1, contra. Ante, 182. * Bayl. 115, 26. See the form post, of a protest for nonpayment, which, with the alteration of the words in italics, will suffice in the case of a foreign bill. Rogers v. Stephens, 2 T. R. 713. Gale v. Walsh, 5 T. R. 239. Orr v. Magennis, 7 East, 459. 360. Brough v. Perkins, Ld. In Rogers v. Stephens, 2 T. R. 713. Gale v. Walsh, 5 T. R. 239. In an custom. |