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test and mode of giving notice of non-acceptance.

2dly. Of the pro- ing notice by a private hand, where there is a regular post, for if the notice arrive later by the former than by the latter, the parties may be discharged', but it is reported to have been decided that the holder of a dishonored bill is not bound to send notice to the drawer by the mail or first conveyance that sets out from the place where such holder resides, and that it is sufficient, provided there be no essential delay, if he send notice by a private hand, and although such notice should thereby reach the drawer later in the same day than if it had been sent by the mail, he will not, on that account, be discharged. The safer course however is to send by the post.

to do; that they could not foresee that the post would be interrupted, and it could not be expected that they should send the bill by a special messenger, or any extraordinary mode of conveyance. His Lordship said, he therefore thought the plaintiffs had been guilty of no laches, and were entitled to recover, and they accordingly had a verdict.

Saunderson. Judge, 2 Hen. Bla. 509. The holder of a note wrote to the defendant, who was one of the indorsers, to say it was dishonored, and put the letter in the post, but there was no evidence that it ever reached the defendant, and the court held, that sending the letter by the post was quite sufficient.

1 Darbishire v. Parker, 6 East. 8, 9.

This was an action

2 Bancroft v. Hall, 1 Holt, C. N. P. 476. against the drawer of a bill of exchange, who resided at Liverpool, the bill was accepted by one Hind, payable in London, and indorsed by the defendant to the plaintiff. The bill being dishonored, notice was given to the plaintiff, who lived at Manchester, on the 24th of May. On that day he sent a letter by a private hand to his agent at Liverpool, directing him to give Hall notice of the acceptor's default. On the 25th in the afternoon the agent received the letter, and went about six or seven in the evening to the counting house of Hall, but after knocking at the door, and ringing a bell, no one came to receive a message. The merchants counting-houses at Liverpool do not shut up till eight or nine. The 26th was a Sunday, and notice was not in fact given till the morning of the 27th. It was objected for the defendant, that the notice was not in time after the London letter reached Manchester, a mail set out next morning to Liverpool. The plaintiff should have sent the notice by the mail, which reached Liverpool by ten o'clock, if he prefers a private conveyance, or if he attempts to give notice earlier than by law he is bound to do, and fails in giving an effectual notice, he is not therefore exempt from giving proper legal notice.

Bayley, J. Notice must be given in time, but all a man's other business is not to be suspended for the sake of giving the most expeditious notice. He is not bound to write by post as the only conveyance, or to send a letter by the very first channel which offers. He may write to a friend and send by a private conveyance. Here the notice reaches Liverpool on the 25th. No expedition could have

test and mode of

non-acceptance.

Notice of the dishonour of a bill sent by the two- 2dly. Of the prepenny post is sufficient, where the parties live within giving notice of its limits, whether near or at a distance from each other, but it must be proved that the letter, conveying the notice, was put into the receiving-house at such an hour, that according to the course of the post, it would be delivered the day on which the party to whom it is addressed, was entitled to receive notice of the dishonour'.

Where notice is to be sent from London by the general post, it has been held that the letter containing it should be put into the post-office in Lombard-street, or at a receiving-house, and that the delivery to a bellman in the street will not be sufficient; and it is obvious that the notice should in all cases be given by some person who will afterwards be competent to prove it.

Where there is no post, it is sufficient to send notice by the ordinary mode of conveyance, though notice by a special messenger might arrive earlier; and therefore in the case of a foreign bill it is sufficient to send it by the first regular ship bound for the place to which it is to be sent, and it is no objection, that if sent by a ship bound elsewhere it would probably have arrived sooner, though the holder wrote other letters by that ship to the place to which the notice was to be sent. It has been recently decided that

brought it earlier. Between six and seven in the evening in that day, the witness goes to the defendant's counting-house, and it is shut up. A merchant's counting-house or residence of trade is not like a banker's shop, which closes universally at a known hour. It was the defendant's fault that he did not receive notice on the 25th, which he might have done if he had kept his counting-house open till eight or nine, which are the customary hours of closing them at Liverpool. Verdict for the plaintiff.

'Scott v. Lifford, 1 Campb. 246. 9 East. 347.-Smith v. Mullett, 2 Campb. 208.-Hilton v. Fairclough, 2 Campb. 633.

Ante, 204.-Hawkins v. Rutt, Peake's Rep. 186. sed quære if the latter would not be sufficient.

1 Muilman v. D'Eguino, 2 Hen. Bla. 565. To debt on bond conditioned to pay certain bills drawn on India at sixty days sight, in case they should be returned protested. Defendant pleaded, that he had not notice so soon as he should have had, it appeared that

adly. Of the pro- where it is necessary or more convenient for the holder to send notice by other conveyance than the post, he

test and mode of giving notice of non-acceptance.

3dly. The time when protest must be made

and notice given.

may send a special messenger, and he may recover the reasonable expences incurred by that mode of giving notice'.

There does not appear to be any express decision with respect to the time when a foreign bill must be protested for non-acceptance, but from analogy to the time when a protest must be made for non-payment, it should seem that in this country, it, or at least the noting, should be made within the usual hours of business, on the day when the acceptance is refused', and that the neglect to make it at the time will only be excused by inevitable accident, such as sudden illness of the holder, robbery, or other circum

notice was sent by the first English ships, but that by the accidental conveyance of a foreign ship, not bound for England, and by which the holder wrote to England upon other matters, notice might have been sent sooner, and would have arrived sooner, but Eyre, C. J. told the jury, that notice by the first regular ships bound for Eng land was sufficient, and that it was not necessary to send notice by the chance conveyance of a foreign ship. The jury found for the plaintiff, and the court was satisfied with the verdict, and refused a new trial. See also Darbishire v. Parker, 6 East. 7.—Bayl. 128.

Pearson v. Crallan, 2 Smith's Rep. 404. Assumpsit on a bill of exchange for £30, indorsed by the defendant to the plaintiff. The plaintiff demanded the amount of the bill and £2. 12s. 9d. costs. The defendant tendered £31. 11s. 9d. the expence incurred was on account of a messenger employed in giving the notice. The defendant objected that the holder of a bill was not entitled to give notice by a special messenger, but only by the ordinary course of the post. It was agreed that if a special messenger should be allowed it was not an unreasonable charge. The £31. 11s. 9d. having been tendered, and that fact pleaded, and this objection being made to the legality of the charge, the defendant's counsel contended that the plaintiff should be nonsuited, but the learned judge over-ruled the objection, and expressly left it to the jury to say, whether the sending by a special messenger was done wantonly or not; and it appeared that the letter possibly would not have reached the defendant for a fortnight, as he lived out of the usual course of the post, and upon this the jury found a verdict for the plaintiff for the amount of the bill, and the full charge for the expences; and Lawrence, J. said, "In some parts of Yorkshire, where the manufacturers live at a distance from the post towns, the letters may lie for a long time before they are called for, and it may be necessary to send notice by a special messenger," and Lord Ellenborough, C. J. observed, “That it was rightly left to the jury if it was left for them to say whether the special messenger was necessary, and also whether the charge was reasonable. Rule Nisi refused.

* Mar. 112.

'Leftley v. Mills, 4 T. R. 175.

when protest

must be made and

notice given.

stances. It has been considered, that it is sufficient to 3dly. The time note a foreign bill for non-acceptance on the day of refusal, and that the protest may be drawn any day after by the notary, and be dated of the day the noting was made; but as this point is not settled, it is advisable to complete the protest for non-acceptance on the day it is made. We have seen that when the drawee, after the bill's remaining in his hands twentyfour hours for acceptance, requests further time to consider of it, the holder should give immediate notice to the drawer and indorsers of such request, and of the time granted 3.

Where a foreign bill has been refused acceptance, and the party to whom notice is to be given is resident abroad, it seems that notice of the protest should be communicated to him, and it is advisable to send a copy of such protest; but where such party is resident in England, it suffices to give notice to him of the dishonour, without informing him of the protest, because

' Poth. pl. 144.

2 Goostrey v. Mead, Bul. N. P. 271.-Chaters v. Bell, 4 Esp. 48. Rogers. Stephens, 2 T. R. 714.-Orr v. Maginnis, 7 East. 361. Robins v. Gibson, 1 M. & S. 288.-Bayl. 122, 3.-Selwyn, 4th ed. 345, 6.

Chaters. Bell, 4 Esp. C. N. P. 48. In an action by an indorsee against an indorser of a foreign bill, it appeared that the bill became due on the 24th of April, when payment was demanded and refused, and the bill noted for non-payment. Regular notice of the dishonour was given to the defendant, but he refused payment, because there was no protest. On the 14th of May the protest was formally drawn up, and this action was afterwards brought. Lord Kenyon said, he was of opinion that if the bill was regularly presented, and noted at the time, the protest might be made at any future period. A verdict was found for the plaintiff, but the point was reserved; and on the case coming on to be tried again on a venire facias de novo before Lord Ellenborough, his lordship expressed his concurrence with the opinion of Lord Kenyon. But in Selwyn N. P. 4th ed. 345, 6. it is stated, that a case was reserved in Chaters v. Bell for the opinion of the court, and that the court after argument, conceiving the question to be of great importance, directed it to be turned into a special verdict; but that the sum in dispute being small, and the parties unwilling to incur the expence of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again. See also Bayl. 122.

Ingram v. Foster, 2 Smith's Rep. 243. Ante, 212, 3.

Sdly. The time when protest

he may enquire into the fact'. But in all cases notice must be made and of the non-acceptance must be sent or given to the

notice given.

parties to whom the holder means to resort within a reasonable time after the dishonour of the bill; and the holder must not delay giving notice till the bill is protested also for non-payment. It has been much disputed, whether it is the province of the court or of the jury, to decide what is a reasonable time for this purpose; it should seem that the better opinion is, that what is a reasonable time for giving notice, is a question partly of fact and partly of law; the jury are to find the facts, such as the distance at which the persons live from each other, the course of the post, &c. but when those facts are established, the reasonableness of the time becomes a question of law, and consequently to be determined by the court, and not by the jury 5.

I

Robins v. Gibson, 1 M. & S. 288.-3 Campb. 334. S. C.-Cromwell v. Hynson, 2 Esp. Rep. 511-Goostrey v. Mead, Bull. N. P. 271, 2.-Gilb. Ev. 79.-Pothier, Traite du Contrat de Change, part 1. ch. 5. s. 150.-Manning. Ind. 66.

Robins v. Gibson, 1 M. & S. 288.-3 Campb. 334. S. C.—This was an action by the plaintiff as indorsee against the defendant as drawer of a foreign bill of exchange. It appeared at the trial that the defendant drew the bill at Buenos Ayres, and previously to the time of its becoming due, returned to this country. When the bill became due it was dishonoured and duly protested, and notice of the dishonour, but not of the bill's having been protested, was left at the defendant's house. Lord Ellenborough held the notice sufficient, and the plaintiff had a verdict; and on a motion for a new trial, his lordship said, it did not appear that the defendant requested to have the protest, and it would be hazarding too much to leave it without some request. He had due notice of the fact of dishonour of the bill; and as the circumstances of parties alter, the rule respecting notice also changes according to the convenience of the case. If the party is abroad, he cannot know of the fact of the bill's having been protested, except by having notice of the protest itself: but if he be at home, it is easy for him, by making enquiry, to ascertain that fact. Rule refused.

2 Darbishire. Parker, 6 East. 3. 14. 16.-Haynes v. Birks, 3 Bos. & Pul. 601, 2.

3 Goostrey v. Mead, Bull. N. P. 271.-Roscoe v. Hardy, 12 East. 434.

+ Tindal v. Brown, 1 T. R. 168-See the cases, Bayl. 123. n. 3. 5 Per Lord Mansfield, C. J. and Buller, J. in Tindal v. Brown, 1 T. R. 168.-Darbishire v. Parker, 6 East. 3. 9, 10. 12.-Haynes v. Birks, 3 Bos. & Pul. 599.-Bayl. 123. acc.-Russel v. Langstaff, Dougl. 514. contra.

Bateman v. Joseph, 12 East. 433.-2 Campb. 461.-In this case it

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