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Cress. 610, that he has a right to notice, because on payment he may recover over against those persons. Parke, B., in Carter v. Flower, 16 M. & W. 751; Jackson v. Richards, 2 Caines's Rep. 343; French's ex'x v. Bank of Columbia, 4 Cranch 161; Fotheringham v. Price's ex'ors, 1 Bay 291; Warder &c. v. Tucker, 7 Mass. 449.
But it has been held in Virginia, that an endorser who unites with the drawer to deceive the holder, by representing a bill as one that will probably be accepted, with a knowledge that it will not, is guilty of a fraud, which deprives him of the right to insist upon notice. Farmers Bank v. Van Meter, 4 Rand. 553.
3. Other circumstances which will or will not dispense with notice. Among others, effect of assignment of property of maker or acceptor for endorser's security.
The necessity of notice is not dispensed with by the fact of the endorser being an accommodation endorser, Keeler v. Bartine, 12 Wend. 117; or of the acceptor or maker being bankrupt or insolvent, Nicholson v. Gouthet, 2 H. Bl. 609; Esdarle v. Sowerby, 11 East 117; Smith &c. v. Becket, 13 ld. 187; Thackray v. Blackett, 3 Camp. 164; Edwards v. Thayer, 2 Bay 217; O'Rear &c. v. McDonald &c. 9 Gill 360; nor by both of these circumstances combined, Jackson v. Richards, 2 Caines's Rep. 343; Keeler v. Bartine, 12 Wend. 117. So far from it, says Nelson, J., these two circumstances, to wit, the endorsement for accommodation, and insolvency of the maker, seem to add cogency to the considerations in favour of strict notice of the default. S. C. 12 Wend. 118.
Knowledge of the probability, however strong, that a bill will be dishonoured, cannot operate as a notice of dishonour, or dispense with it. Cresswell, J., in Caunt v. Thompson, 7 Man. Grang. & Scott 409; Baker v. Birch, 3 Camp. 107; Brown & Sons v. Ferguson, 4 Leigh 37.
And Chancellor Kent's conclusion from the authoritiesthat notice is not required where the endorser has protected himself by an assignment or collateral security (3 Kent's Com. 113) Gibson, C. J. observes, is not sustained by them as a principle applicable to all cases, in every variety of circumstances. Kramer v. Sandford, 4 W. & S. 330.
The cases shew that the mere precaution by an endorser of taking security from his principal, will not dispense with notice. There must be something more, such as the taking into his possession the funds or property of the principal, sufficient for the purpose of meeting the payment of the note, Nelson,
C. J. in Spencer v. Harvey, 17 Wend. 490; Corney v. Da Costa, 1 Esp. 302; 4 Rand. 558; or he must have an assignment of all the property of the maker for that purpose. 17 Wend. 490.
When he has applied to the maker, and representing himself liable for particular notes, received an assignment of all the maker's property to meet them, he has been precluded from insisting upon a demand on the maker, or a notice to himself, in respect of such notes. Bond &c. v. Farnham, 5 Mass. 173. This decision has been followed in Pennsylvania, Barton v. Baker, 1 S. & R. 334; and New York, Mechanics Bank v. Griswold, 7 Wend. 168. It is considered that in such a case the endorser has effectually secured every object which the law presumes would be the consequence of notice of the maker's default. Nelson, J., S. C. 169; Coddington v. Davis
&c. 3 Denio 16.
4. How endorser may by agreement waive the necessity of
Sometimes there is, before the bill or note has been dishonoured, an undertaking by the defendant, Wood v. Brown, 1 Stark. 217, 2 Eng. Com. Law Rep. 363, which dispenses with notice. Phipson v. Kneller, 4 Camp. 285, 1 Stark. 116, 2 Eug. Com. Law Rep. 321. The stipulation to waive notice of demand may not be sufficient to dispense with the demand itself. Backus v. Shipherd, 11 Wend. 633; Scott v. Greer, 10 Barr 103. But there may be an express waiver both of demand and notice. Such a waiver was written over the sig nature of the endorser in Woodman v. Thurston, 8 Cush. 159, and Brittain v. Doylestown Bank, 5 W. & S. 99. There may in other ways be an undertaking which will bind the party, as if there were presentment, refusal and notice. Union Bank v. Hyde, 6 Wheat. 572. It is considered that the effect of proving an undertaking of this nature is not to shew a contract different from the contract in suit, but to shew that a condition beneficial for the defendant has been waived by him; that he had agreed to dispense with notice, not that by the contract itself notice would not be necessary. Jones v. Fales, 4 Mass. 251, Widgery v. Munroe &c. 6 Id. 450; Taunton v. Richardson &c. 5 Pick. 443. If while he was holder of the note he agreed to forbear payment for a year after the time mentioned in it, and then committed a fraud on his endorsee, in suppressing that agreement, the failure of his endorsee to make a demand according to the tenour of the note (and give notice of it), can be no valid objection in the endorser's mouth,
seeing that whatever might be the holder's rights against the maker, the demand could not be made ou the maker consistently with the agreement that the endorser had made with him. Williams v. Brobst, 10 Watts 111.
The endorser is not allowed to put the holder off his guard, induce him not to make demand or give notice, and then make an objection for want thereof. Day v. Ridgway &c. 5 Harris 308; Leonard v. Gary, 10 Wend. 508; Coddington v. Davis &c. 3 Denio 16, 1 Comstock 186. Protest of a promissory note not being necessary, if the endorser of a note write to a holder asking him not to protest it, and saying he will waive the necessity of the protest, this will be considered as a waiver of those things which, without such waiver, would have been necessary on the part of the holder, to wit, demand of payment, and notice to the endorser. S. C.
An endorser advises the holder of a note that it will not be met at maturity by the makers; he informs them of the security which has been given by the first endorser, the probable necessity of a sale of his farm and of the inutility of a suit; also, that he himself was not prepared to advance the money, and the letter winds up by requesting indulgence. In the ordinary course of the mail, it must have reached the plaintiffs just before the note fell due, and most obviously was calculated, and doubtless had the effect, to put them off their guard in respect to notice. It must have appeared to them as it would to all, an idle step to give notice of non-payment by the makers to a person who had just communicated to them the fact that it would not be paid by them, and who admitted his own liability and asked indulgence. The supreme court of New York, considering the omission to give notice attributable to the endorser's interference, would not permit him to take advantage of that omission. Spencer v. Harvey, 17 Wend. 491.
The supreme court of Massachusetts is of opinion that when the endorser, at or shortly before the time when the note becomes due, says to the holder that an arrangement for its payment is about being made, and in direct terms, or by necessary implication, requests the holder to wait or give time, it amounts to an assurance that the note will be paid-that the promiser or endorser will pay it-and is a waiver of demand and notice. Gove &c. v. Vining, 7 Metcalf 212.
5. Where notice is not dispensed with, what is the effect of failing to give it. Who should give the notice; and to whom it should be given.
The general rule is, that it is necessary to give, or use due
diligence to give, within a reasonable time, notice of dishonour to every drawer or endorser of a bill and every endorser of a negotiable note in order that he may avail himself of his remedy against any other party; and that a failure to give such notice or use such diligence operates to discharge the party in respect to whom the failure exists. Holroyd, J. 3 Barn. & Ald. 619; Turner v. Leach, 4 Barn. & Ald. 451, 6 Eng. Com. Law Rep. 484; Wood v. Carr's ex'ors, 1 Call 232; Freeman &c. v. Boynton, 7 Mass. 487; Johnson v. Harth, 1 Bailey 482. A holder who gives his immediate endorser due notice, and is satisfied with his responsibility, may omit giving notice to a previous party, and leave such endorser to give it if he please. Mead v. Enge, 5 Cow. 309.
Notice of dishonour may be given to any previous party by the holder or his agent. Stewart v. Kennett, 2 Camp. 177. A notary or other agent, entrusted with the bill or note for the purpose, is competent to deliver it up if paid, or if not paid to give notice. Hains v. Robinson, 4 How. 345; Bank of Utica v. Smith, 18 Johns. 239.
But it is not absolutely necessary that the notice should come from the holder or his agent. It may be given by any person who is a party to the bill or note, and who would, on the same being returned to him, have a right of action on it. Chanoine v. Fowler, 3 Wend. 179; Mead v. Enge, 5 Cow. 309. A plaintiff, in an action on the instrument, may avail himself of a notice duly given by any other party to it. Chapman v. Keene, 4 Nev. & Man. 607, 3 Adol & El. 193, 30 Eng. Com. Law Rep. 69; Wilson v. Swabey, 1 Stark. 34, 2 Eng. Com. Law Rep. 283.
When a note is made payable to, and endorsed by, two persons jointly, and they are not partners, notice to one will not answer; it must be given to both. Sayre v. Frick, 7 W. & S. 383; Willis v. Green, 5 Hill 232; Shepherd v. Hawley, 1 Conn. 367.
Although before a note becomes due the maker dies, and his endorser becomes his personal representative, still payment must be demanded and notice given the endorser; or he will not be liable as such. Magruder v. Union Bank, 3 Peters 87; Union Bank v. Magruder, 7 Id. 291.
If, at the maturity of the instrument, the endorser be dead, and has a personal representative known to the holder, notice ought to be given to such representative. Cayuga Co. Bank v. Bennett, 5 Hill 238. When there was no such known representative, a notice directed to the deceased endorser, and delivered at his late dwelling house, was held sufficient. Stewart v. Eden's ex'ors, 2 Caines' Rep. 121. If, at the time
the note falls due, the holder gives all the notice that it is then in his power to give, the ascertainment subsequently that the endorser was then dead, and that some months after the maturity of the note his executors qualified, does not make it necessary to give notice to them. Merchants Bank v. Birch c. 17 Johns. 25.
6. How notice is given; in some cases it must be personally served; in others it may be sent by mail.
The rule of Scott &c. v. Lifford &c. 1 Camp. 249, has been modified in the United States. Here, as a general rule, if the party to whom notice is to be given lives in the same town, notice through the post office will not affect him unless it be shewn to have come to hand in due season. 8 W. & S. 14. The bill may have been protested at Philadelphia, and notice to the drawer and endorsers forwarded by mail to a party at Pittsburg, yet he, on receiving such notice, must not put in the post office a notice for an endorser residing in the same town. Kramer v. McDowell, 8 W. & S. 138; U. S. v. Barker's adm'x, 4 Wash. C. C. R. 470.
In this country, the general rule is, that when the parties reside in the same city or place, notice of the dishonour of bills or notes must be personal or something tantamount, such as leaving it at the dwelling house or place of business of the party if absent. Ireland v. Kip, 11 Johns. 232; Williams v. Bank of U. S. 2 Peters 101, 105; Peirce &c. v. Pendar, 5 Metcalf 355; Sheldon v. Benham, 4 Hill 133; Cayuga Co. Bank v. Bennett, 5 Id. 241; Laporte v. Landry, 5 Louis. N. S. 359; Kramer v. McDowell, 8 W. & S. 138.
A verbal notice from an authorized agent of the holder is sufficient, when he mentions to the party the particular bill or note, and states to him that it has been presented and dishonoured, or words to that effect. Phillips v. Gould, 8 C. & P. 355, 34 Eng. Com. Law Rep. 425; Chard v. Fox, 14 Adol. & El. N. S. 200, 68 Eng. Com. Law Rep. 200; Metcalfe v. Richardson, 11 Com. Bench (2 J. Scott) 1011, 73 Eng. Com. Law Rep. 1011.
If, when the notice should be given, the party entitled to it be absent from the state, and has left no known agent to receive it, if he abscond or has no place of residence which reasonable diligence, used by the holder, can enable him to discover the law dispenses with the necessity of giving regular notice. So, where the parties reside in the same city or town, the notice should be given at the dwelling house or place of business of the party entitled to claim it; and the