would accept or pay in respect thereof, he is entitled 1st, When notice to notice of the dishonour'. of non-acce»tance is necessary and what excuses omis The death, bankruptcy, or known insolvency 3 of sion. 'In Walwyn v. St. Quintin, 2 Esp. Rep. 515. Eyre, C. J. left it to the jury to say, whether title-deeds were effects or not, and they found in the affirmative. Sce 1 Bos. & Pul. 652. S. C.-Ante, 261. Ex parte Heath, 2 Ves. & Bea. 240.-2 Rose, 141. S. C. In this case a distinction was taken as to the necessity of notice to the drawer of a dishonoured bill, depending on the fact whether the acceptor has effects, or whether it arose out of a single transaction, or out of various dealings. In the latter case it was held, that notice is equally necessary without effects. And it seems, .that securities as title-deeds, and short bills, are effects for this purpose. The Lord Chancellor said, I have often lamented the consequences of distinction, introduced in modern times, as to the necessity of giving notice of the non-payment or non-acceptance of a bill of exchange, whether the acceptor had or had not effects, and I have the satisfaction of finding, that my opinion has been adopted by the courts of law. According to the old rule, a bill of exchange, purporting upon the face of it to be for value received, the implication of law from the acceptance was, that the acceptor had effects. Then they came to this general doctrine, that it is not necessary for the holder to give notice, if he can shew that the acceptor had no effects. The first objection is, who is to decide whether there are effects or not; in the simple case, where there is nothing but the particular bill, and no other dealing between them, there is no difficulty; but if there are complicated engagements, and various accommodation transactions, no one can say whether there are effects or not, and there cannot be a stronger instance than that in the case of Walwyn v. St. Quintin, (2 Esp. Rep. 515. ante, 261.) referred to; Lord Chief Justice Eyre, a very good lawyer, left to the jury to decide, without any solution of the question, whether title-deeds are effects; but a rule that securities cannot be effects in any case, would be quite destructive of all commercial dealing. Are not short bills, for instance, effects? it of no importance to the holder to have notice that he may withdraw them from the possession of the acceptor? The courts were obliged necessarily to decide, that if bills were accepted for the accommodation of the drawer, and there was nothing but that paper between them, notice was not necessary, the drawer being, as between him and the acceptor, first liable; but if bills were drawn for the accommodation of the acceptor, the transaction being for his benefit, there must be notice without effects, and if in result of various dealings, the surplus of accommodation is on the side of the acceptor, he is, with regard to the drawer, exactly in the same situation of an acceptor having effects, and the failure to give notice may be equally detrimental, I will in this instance give an enquiry. It is upon the petitioner to prove, that in all this complication, there is nothing which the law calls effects, he may therefore have liberty to call a meeting, and must pay the costs of this application. 2 Poth. pl. 146. Is Russell v. Langstaffe, Dougl. 497. 515.-Esdaile v. Sowerby, 11 East. 114.—Ex parte Wilson, 11 Ves. jun. 412.-Whitfield v. Savage, 2 Bos. & Pul. 279. Thackray v. Blackett, 3 Campb. 165,Bayl. 115. acc. Ex parte Smith, 3 Bro. C. C. 1. contra. In Russell v. Langstaffe, Dougl. 497. 515. Lee, said, arguendo, that it had frequently been ruled by Lord Mansfield at Guildhall, that it is not an excuse for not making a demand on a note or bill, the drawee, or his being in prison', constitute no excuses, either at law or in equity, for the neglect to give due notice of non-acceptance or non-payment; because many means may remain of obtaining payment by the assistance of friends or otherwise, of which it is reasonable that the drawer and indorsers should have the opportunity of availing themselves, and it is not competent to the holders to shew that the delay in giving notice has not in fact been prejudicial1; nor will the circumstance of the drawee's having in or for not giving notice of non-payment, that the drawer or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends or otherwise; and Lord Mansfield, who was in court, did not deny the assertion. This dictum was also referred to, arguendo, in Bickerdike . Bollman, 1 T. R. 408. Esdaile v. Sowerby, 11 East. 114. In an action by the indorsees of a bill of exchange, drawn by Cheetham upon Hill, in favour of the defendants, and by them indorsed to the plaintiffs, a verdict was found for the plaintiff, subject to a case for the opinion of the court. The bill, which was payable in London, became due on Saturday, 20th February, and then dishonoured. By a mistake, the notice of non-payment was not given to the defendants till the 27th, whereas it ought to have been given on the 24th, and payment was refused, on the ground of these laches; before the bill became due the drawer had stopped payment and become bankrupt, and the acceptor was insolvent. The drawer had himself apprized the defendant of his situation at the time of his stopping payment, and that this bill would not be paid, and they knew that the acceptor had no funds but such as the drawer furnished him with, and on the 25th February, they admitted to the plaintiff's agent, that they knew of the insolvency of the drawer and acceptor. It was contended that notice of the dishonour was unnecessary. But the court was clear that the insolvency of the drawer and acceptor, and the knowledge of it, did not dispense with the necessity of giving notice of the dishonour of the bill to the defendants. And Lord Ellenborough said, "It is too late now to contend, that the insolvency of the drawer or acceptor dispenses with the necessity of a demand of payment or of notice of the dishonour."-Boultbee v. Stubbs, 18 Ves. jun. 21. The Lord Chancellor, after deciding that indulgence to the principal, by taking a mortgage and giving time, discharges the surety, though such conduct may be for the benefit of the surety, said "It is in most cases for the advantage of the surety, but the law takes so little notice of that circumstance, that if the acceptor of a bill becomes bankrupt, the holder must give notice to the drawer, as another person has no right to judge what are his remedies, and the original implied contract being, that as far as the nature of the original secu rity will admit, the surety, paying the debt, shall stand in the place of the creditor." 2 Per Alvanley, C. J. in Haynes v. Birks, 3 Bos. & Pul. 601. Esdaile v. Sowerby, 11 East. 147.-Russell v. Langstaffe, Dougl. 515. Bickerdike v. Bollman, 1 T. R. 408.-De Berdt v. Atkinson, 2 Hen. Bla. 336.-Nicholson v. Gouthit, id. 612.; and admitted by the court in Warrington v. Furbor, 8 East. 245, 6. 7. of non-acceptance what exeuses omis formed the drawer, before the bill was presented for 1st. When notice acceptance or became due, that he could not honour is necessary; and it, be a sufficient excuse for not giving notice'; and sion. therefore where A. to accommodate B. lent him a bill drawn by himself upon and accepted by C. who had effects of his in his hands, and B. indorsed it to D. who indorsed it over; and the day before the bill became due, B. paid the amount to A. who, on hearing that C. had failed, gave B. a check for the amount of the bill, and sent him with it to D. to enable him to pay the bill when due: and four days after that time A. learning that payment had not been demanded, desired D. not to pay the bill, as no notice of nonpayment had been given by the holder, and offered to indemnify him, notwithstanding which D. afterwards paid the bill; it was holden first, that D. paid the bill in his own wrong, and secondly, that A. was entitled to recover back the money paid into the hands of D. by B. in an action for money had and received '. Again, in Esdaile v. Sowerby it was held, that, though the indorsers of a bill of exchange had full knowledge of the bankruptcy of the drawer, and of the insolvency of the acceptor before the bill became due, and that it was impossible it could be paid, yet that they were discharged by the holders not giving them due notice, on account of a mistake by misdi recting a letter containing such notice. But where the drawer of a bill, a few days before it became due, stated to the holder, that he had no regular residence, and that he would call and see if the bill had been paid 'Nicholson v. Gouthit, 2 Hen. Bla. 612.-Staples v. Okines, 1 Esp. Rep. 332.-In Esdaile v. Sowerby, 11 East. 117. Lord Ellenborough observed, that as to the knowledge of the dishonour being equivalent to due notice of it given to him by the holder, the case of Nicholson v. Gouthit, is so decisive an authority against that doctrine that we Cannot enter even into the discussion of it. 2 Whitfield v. Savage, 2 Bos. & Pul. 277.-Clegg v. Cotton, 3 Bos. & Pul. 239.; but see Brett v. Levett, 13 East. 213, 4. as to an acknowledgment by a drawer before the bill became due that he knew it would not be paid, infra. 11 East, 114. ante, 272; but see Brett v. Levett, 13 East. 213, 4 T of non-acceptance 1st. When notice by the acceptor, it was held that he was not entitled is necessary; and to notice of its dishonour, he having thus dispensed what excusesomis with it'; and if the drawer, on being applied to by sion. the 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 eircumstances 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 sufficient, and the acceptor being himself a drawer, he had notice of his own default '. In general, the drawer will, as already observed, be at liberty to rebut the presumption that he could not have been damnified, raised by the proof of his haying no effects in the hands of the drawee, by proving that he has really sustained damage; and a surety for the acceptor, who has been obliged to pay the amount of the bill in consequence of the acceptor's bankruptcy, need not in an action against him for money paid, prove the due presentment of the bill, &c. . 5. 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 Phipson v. Kneller, 4 Campb. 285.-1 Stark. 116. S. C. 2 Brett v. Levett, 13 East. 214. 3 Porthouse v. Parker and others, 1 Campb. 82. in which Lord Ellenborough held, that the plaintiff was not bound to prove that the defendant had received express notice of the dishonour of the bill which must necessarily have been known to one of them, and the knowledge of one was the knowledge of all. But if there was any fraud in the transaction, a different rule would prevail, Per Lord Ellenborough, in Bignold v. Waterhouse, 1 M. & S. 259. * Ante, 268, 9, but see Rogers v. Stevens, 2 T. R. 713. Walwyn v. St. Quintin, 2 Esp. Rep. 516.-1 Bos. & Pul. 652. S. C. Bul. Ni. Pri. 273, 4. and see Crosse v. Smith, 1 M. &. S. 545.--Bowes v. Howe, 5 Taunt. 30. "There is no reported case deciding whether accident will excuse a delay in giving notice of non acceptance or non-payment. In Hil of non-acceptance what excuses omis an excuse for the want of a regular notice to any of 1st. When notice the parties, provided it be given as soon as possible is necessary; and after the impediment is removed. And the holder sion. of a bill of exchange is excused for not giving regular notice of its being dishonoured to an indorser, of whose place of residence he is ignorant, if he use ton v. Shepherd, 6 East. 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 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. '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 notice of the dishonour, was left at the house of Richard Bennett, the tenth indorser, inclosed in a letter addressed to him. That in consequence of the dangerous illness of his wife at a distant place, he had on the 1st September left his house in care of a lad, who had no authority to open letters, intending to return on the 3d September, but that in consequence of the increasing dangerous illness of his wife, he did not return till after the 8th September, on which day his brother opened the letter, and immediately gave notice of the dishonour of the bill to the plaintiff who paid it, and then called upon the defendant, who insisted that he was discharged for want of earlier notice. It was urged for the plaintiff, that the dangerous illness of Richard Bennett's wife, excused his absence from home, and the delay in giving notice of the dishonour, and that as the dishonour of a bill is contrary to the contract and expectation of the parties, there is no reason for requiring an indorser to be in the way, or to appoint an agent in his absence to provide for such an event. But Lord Ellenborough ruled that these circumstances constituted no excuse for the delay in giving notice. A case was reserved upon another point. Poth. pl. 144.; but a mistake in directing a letter is no excuse, Esdaile v. Sowerby, 11 East. 114. ante, 273. |