and mode

Notice of the dishonour of a bill sent by the twopenny post is suffi- 2dly. O cient, where the parties live within its limits, whether near or at a dis- the protest tance from each other, but it must be proved that the letter, conveying of giving the notice, was put into the receiving-house at such an hour, that notice according to the course of the post, it would be delivered the day on non-accept. which the party to whom it is addressed, was entitled to receive notice ance. 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

476. This was an action against the draw
er 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 be-
ing dishonoured, 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 ac-
ceptor's default. On the 25th in the after-
noon 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 Man-
chester, 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 no-
tice, he is not therefore exempt from giv-
ing 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 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 resi-
dence 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 Liver-
pool. Verdict for the plaintiff.

y 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 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 England 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.

of

and mode

2ally. Of recently decided, that where it is necessary or more convenient for the the protest holder to send notice by other conveyance than the post, he may send of giving a special messenger, and he may recover the reasonable expenses incurnotice of red by that mode of giving notice. (288)

non-accept

ance.

Pearson v. Crallan, 2 Smith's Rep. 404. Assumpsit on a bill of exchange for 301., indorsed by the defendant to the plaintiff. The plaintiff demanded the amount of the bill and 27. 12s. 9d. costs. The defendant tendered 317. 11s. 9d. the expense 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. 118. 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 ex

pressly 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 expenses; 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.

(288) The holder is bound to use due diligence to give notice of the non-acceptance, as well as non-payment of a bill to the drawer and indorser, whom he intends to charge. Tunno v. Lague, 2 John. Cas. 1. Berry v. Robinson, 9 John. Rep. 121. Hussey v. Freeman, 10 Mass. Rep. 84. The agent of the holder is not bound to give notice of the dishonour of a bill to the drawer or indorsers, but is only bound to give notice to his principal, and to transmit to him the requisite protests, in order that the holder may give notice to the drawer and indorsers of the dishonour of the bill. Tunno v. Lague. Colt v. Noble, 5 Mass. Rep. 167. And if the agent undertakes to give notice, it will be good, if given as early as it could have been received from the holder. Tunno v. Lague.

Where the parties reside in the same town or city, the notice of non-acceptance or non-payment must be personal, or left at the dwelling-house or place of business of the party to be charged by the notice. Ireland v. Kip, 10 John. Rep. 490. S. C. 11 John. Rep. 231. And where the parties lived in New York, and notice of non-payment of a note was put into the post-office in the city, directed to the indorser, who resided at Kip's Bay, (about three miles and a half from the post office, and within the city,) but the letter carriers did not carry letters to that distance, it was held, that the notice was insufficient. Ibid. In case of a temporary removal of the indorser from the place where payment is to be made, notice, at his last place of residence there, will be sufficient. Stewart v. Eden, 2 Caines' Rep. 121. But see Blakeley v. Grant, 6 Mass. Rep. 386. If the agent of the holder call at the indorser's house, and finding it shut up, and that he had gone out of town, put a letter into the post-office addressed to him, informing him of the non-payment or non-acceptance, it will be sufficient notice. Ogden v. Cowley, 2 John. Rep. 274. A bill was drawn and dated at New York, on persons residing there, who accepted it; but the drawers in fact resided at Petersburgh in Virginia. The bill being protested for non-payment, on the same day or the next day, two letters were put into the post-office, giving notice to the drawers, one directed to New York, and the other to Norfolk, the supposed place of their residence. It was held, that as it did not appear that the holder knew where the drawers lived, he had used due diligence and the notice was good. Chapman v. Lipscombe, 1 John. Rep. 294.

A citizen of the United States drew a bill in the East Indies, payable in London, which was transmitted by the holder to his agent in London, and being there dishonoured, was returned to the holder in the East Indies, with the protest; it was held, that notice of the dishonour of the bill sent to the United States, to the drawer by the holder after the receiving the protests in the East Indies, was good, and that the holder was not bound to have sent notice through his agent direct from London to the United States, although he knew the domicil of the drawer in the United States. Colt v. Noble, 5 Mass. Rep 167.

་

If due diligence be used to give notice to the party to be charged, and he cannot be found, this is equivalent to due notice, Ouden v. Cowley, 2 John. Rep. 274. Blakeley

There does not appear to be any express decision with respect to the 3dly. The time when a foreign bill must be protested for non-acceptance, but

time when protest must be made and

en.

v. Grant, 6 Mass. Rep. 386. But a written notice in such case, left at a former dwell- notice giving-house of the party, in which neither he nor his family then resided, is no proof to support an allegation of notice in fact even though it should elsewhere be received by the wife of the party, unless she was constituted his agent. Blakeley v. Grant. But see Stewart v. Eden, 2 Caines' Rep. 121.

The putting of a letter into the post-office, giving notice of the dishonour of a note or bill, is sufficient notice, although no proof is given of its having been actually received. Munn v. Baldwin, 6 Mass. Rep. 316. Miller v. Hackley, 5 John. Rep. 375. And it is a general rule, that if the party to be affected by a notice reside in a different city or place from the holder, the notice may be sent through the post-office to the post-office nearest to the party entitled to such notice. Ireland v. Kip, 11 John. Rep. 231. See also Freeman v. Boynton, 7 Mass. Rep. 483.

And if an indorser receives notice of the dishonour of a bill or note, he must immediately give notice to all the prior parties whom he intends to charge. Morgan v. Woodworth, 3 John. Cas. 89.

But if business be suspended in a city during two months, by a contagious disorder, it will excuse the want of notice during that period. Tunno v. Lague, 2 John. Cas. 1.

The holder of a bill must use reasonable diligence to ascertain the residence of the drawer for the purpose of giving him notice of its dishonour. It is not sufficient to look for the drawer at the place where the bill is dated, if his residence be elsewhere. Fisher v. Evans, 5 Binney's Rep. 541. Freeman v. Boynton. But notice left with the family of a sea-faring man during his absence, is sufficient. Fisher v. Evans. Blakeley v. Grant, 6 Mass. Rep. 386. Freeman v. Boynton.

In general, if at the time when a note or bill falls due, the indorser or drawer is absent from the state, and has left no known agent to receive notice, there is no necessity to prove a notice in order to charge him upon non-acceptance or non-payment by the maker or drawee. Blakeley v. Grant, 6 Mass. Rep. 388. And when at the maturity of a note, the maker was out of the state, and the holder left a written demand of payment at his dwelling-house, not knowing of his absence, and on the same day gave notice to the indorsers, it was held sufficient to bind the latter. Sanger v. Stimpson, 8 Mass. Rep. 260. And if the maker has absconded before a note becomes due, and this fact is known to the indorser, it has been held that no demand of payment on him is necessary to charge the indorser. Putnam v. Sullivan, 4 Mass. Rep. 45.

Where the holder and indorser of a foreign bill of exchange both reside in the same city, proof of notice to the indorser within three days after advice of the dishonour of the bill is insufficient. Bryden v. Bryden, 11 John. Rep. 187. So the neglect to notify to an indorser of the default of payment of a note by the maker, for eight days after its dishonour, the parties living at the time within four miles of each other, is such laches as discharges the indorser. Hussey v. Freeman, 10 Mass. 84.

Where the indorser lives in the same town with the maker notice ought to be given to him upon the same day on which the demand is made upon the maker. Woodbridge v. Brigham, 12 Mass. Rep. 403. Where the maker of a note appointed a place to notify to him the note's falling due, a notice and demand at such place is sufficient to charge the indorser. State Bank v. Hurd, 12 Mass. Rep. 172.

A demand of payment should be made on the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeding day, where the indorser resides in a different place. Lenox et al. v. Roberts, 2 Wheaton, 377.

Notice to the indorser is in time if put into the post-office on the next day, and if there be two mails a day it is not necessary that it should be put in in time for the first mail. Whitwell v. Johnson, 17 Mass. 449.

The holder of an inland bill or note is not obliged to send notice of non-payment until the next day after its dishonour. Hartford Bank v. Stedman, 3 Conn. Rep. 489.

Where the parties to a note or bill reside in different towns notice may be sent by mail. Hartford Bank v. Stedman, 3 Conn. Rep. 489.

When the third day of grace falls on Saturday the notice of non-payment need not be given until the next Monday. Williams v. Matthews, 3 Conn. 252.

Where the indorser lives in another town notice put into the post-office is sufficient, although never received. Shed v. Bret, 1 Pick. 401. And if the indorser does not live in a post town, sending the notice to the nearest post town is perhaps sufficient. Ibid. Bussard v. Levering, 6 Wheat. 102.

Where notice to the indorser of a promissory note of which a bank is holder, is given according to the usage of the bank, it is sufficient to charge the indorser. Bank of United States v. Norwood, C. C. U. S. 1 Harr. & Johns. 423.

protest

en.

be

c

3dly. The from analogy to the time when a protest must be made for non-pay time when ment, it should seem that in this country, it, or at least the noting, must should be made within the usual hours of business, a on the day when made and the acceptance is refused," and that the neglect to make it at the time notice giv- will only be excused by inevitable accident, such as sudden illness of the holder, robbery, or other circumstances. It has been considered, that it is sufficient to 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. (1) We have seen, that when the drawee, after [224]the bill's remaining in his hands twenty-four hours for acceptance. requests further time to consider of it, the holder should give imme

a Mar. 112.

bLeftley v. Mills, 4 T. R. 175.

Poth. pl. 144.

d Goostrey v. Mead, Bul. Ni. Pri. 271. Chaters v. Bell, 4 Esp. Rep. 48. Rogers v. Stephens, 2 T. R. 714. Orr v. Magennis, 7 East, 361. Robins v. Gibson, 1 M. & S. 288. Bayl. 122, 3. Selw. 4th edit. 345, 6.

Chaters v. Bell, 4 Esp. Rep. 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

yon.

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 E! lenborough, his Lordshsp expressed his concurrence with the opinion of Lord KenBut in Selw. Ni. Pri. 4th edit. 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, con ceiving 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 expense of a special verdict, the recommendation of the court was not at tended to, and the case was not mentioned again. See also Bayl. 122.

Notice of dishonour sent by mail is sufficient and proper between places where postoffices are established, but where the indorser lives in the country and not on a post road, a special messenger ought to be employed or other means used to convey the notice with the same certainty and despatch. Bank of Logan v. Butler, 3 Litt. 493. Notice sent by a notary public and by mail to the indorser is sufficient. Crisson v. Williams, 1 Marsh. 456.

Notice of the non-acceptance of a foreign bill must be given to the indorser in due and convenient time of which the court are to judge. Phillips v. McCurdy, 1 Harr. &

Johns. 187.

The law does not require of the holder of a note or bill that he shall give the earliest possible notice of its dishonour. It is sufficient if he uses an ordinary and reasonable diligence. Bank of Utica v. Smith, 18 Johns. 230.

Where the makers of a negotiable note resided in New York the holders at Elizabethtown, and the indorser in the neighbourhood of Rahway, and the notary who protested the note in New York transmitted notice of protest by the next mail to the holder at Elizabethtown who sent the notice by the next mail to the indorser, it was held that the notice to the indorser was in time. State Bank v. Ayres, 2 Hals. 130.

A promissory note was made negotiable and payable at the Newbern branch of the State Bank of North Carolina, and fell due on the 11th December, the indorser lived in Newbern near to the bank. Notice of non-payment was not given to him until the 17th of December. Held that he was discharged by this laches. State Bank v. Smith, 2

Munf. 70.

Notice of protest must go by the first mail after the protest. Dodge v. Bank of Kentuckey, 2 Marsh. 615.

(1) After a refusal by the maker of a promissory note to pay, on demand, made on the day when the note fell due, the note is dishonoured and notice may be immediately given to the indorser. Shed v. Bret, 1 Pick. 401.

date notice to the drawer and indorsers of such request, and of the 3dly. The time granted.

time when

protest must be

Where a foreign bill has been refused acceptance, and the party to made and whom notice is to be given is resident abroad, it seems that notice of notice givthe protest should be communicated to him, and it is advisable to send en. 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 he may inquire into the fact. But in all cases notice of the non-acceptance must be sent or given to the parties to whom the holder means to resort within a reasonable time after the dishonour of the bill 35 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 [ 225 ] to be determined by the court, and not by the jury.*(290)

Ingram v. Faster, 2 Smith's Rep. 243. Ante, 164, 5.

Robins v. Gibson, 1 M. & S. 288.-3 Campb. 334. S. C. Cromwell v. Hynson, 2 Esp. Rep. 511. Goostrey v. Mead, Bul. Ni. Pri. 271, 2. Gilb. Evid. 79.-Pothier Traite du Contrat de Change, part 1 ch. 5. 8. 150. Manning's Index, 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 sulficient, 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 the 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 inquiry, to ascertain that fact. Rule refused.

Goostrey v. Mead, Bul. Ni. Pri. 271.
Roscoe v. Hardy, 12 East, 434.
iTindal v. Brown, 1 T. R. 168. See the
cases, Bayl. 123, n. 3.

Per Ld. Mansfield, C. J. and Buller, J.
in Tindal v. Brown, 1 T. R. 168. Dar-
bishire v. Parker, 6 East, 3. 9. 10. 12.—
Haynes v. Birks, 3 Bos. & Pul. 599.-
Bayl. 123. Browning v. Kinnear, 1 Gow
N. P. Rep. 81. acc. Russell. v. Langstaffe,
Dougl. 514. contra.

Bateman v. Joseph, 12 East, 433.2 Campb. 461. In this case it was held, that the want of due notice of the dishonour of a bill is answered by showing the holder's ignorance of the place of residence of the prior indorser whom he sues, and whether he used due diligence to find out the place of residence is a question of fact to be left to the jury. The court all agreed, that this was a question proper to be left to the jury, and they had decided it. Whether due notice has been given of the dishonour of a bill, all the circumstances necessary for the giving of such notice being known, is a question of law; but whether the holder have used due diligence to discover the place of residence of the person to whom the notice is to be given, is a question of fact for the jury. See also Per Grose, J. in Scott v. Lifford, 9 East, 347. Sturges v. Derrick, 1 Wightw.

76.

(290) In some early cases in the United States, it seems to have been held that what was reasonable notice, was a mere question of fact to be left to the jury. Robertson v. Vogle, 1 Dall. Rep. 252. Steinmetz v. Currie, 1 Dall. Rep. 270. Bank of North