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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
duty of the holder does not require of him to give the notice at any other place. If the giving of the notice at either of these places be prevented by the act of the party entitled to receive it, the performance of the condition is excused. Washington, J. in Williams v. Bank of U. S. 2 Peters 102; Crosse v. Smith, 1 M. & S. 545; Goldsmith v. Bland, Bayley on Bills 224; Rhett v. Smith. 2 How. 481, 2.
In Williams v. Bank of U. S., the notary called at the dwelling house of the endorser at the regular time, and at a seasonable hour, for anght that appeared, to serve the notice, and found the house shut up, the doors locked, and the family absent from town upon a visit, the duration of which was unknown to the notary, or to his informer. It was decided that the notary was not bound to call a second time, nor was he under any obligation to leave a written notice, even if he could have found an entrance into the house.
If the absence was probably the consequence of a temporary removal from the city, on account of a prevailing sickness, such as yellow fever, it might be advisable to put a notice in the post office, as was done in Ogden v. Cowley, 2 Johns. 274.
It has been held by the supreme court of Pennsylvania and by the supreme court of the United States, that notice to a party, put in the post office of the town, wherein the presentment and demand are made, will be sufficient, when he lives beyond the limits of the town; and it may be directed to him at that town if its post office be the nearest to his residence, and that at which his letters are received. Bank of Columbia v. Lawrence, 1 Peters 580; Jones v. Lewis, 8 W. & S. 14. The rule is, that to a party residing in a different place or city, notice may be sent through the post office, properly directed to him. Schoneman v. Figley, 7 Barr 438.
In New York, the rule laid down in Ireland v. Kip is not applied, without some qualification, to large country towns, which often have more than one post office, or where, if they have but one, a portion of the inhabitants live so far from it that they usually receive their letters and papers through a neighbouring office in another town. Notice, it has been said, may always be sent through the post office, wherever there is a regular communication by mail between the place of presentment or demand and the office where the person to be charged usually receives his letters and papers. Ransom v. Meek, 2 Hill 591.
7. When notice is sent by mail, how the letter must be directed.
When it is proper that the notice should be sent by mail,
putting the letter containing it, properly directed, seasonably into the post office, is either notice in itself or such due diligence as will stand in its stead. Shed v. Brett, 1 Pick. 406; Mann v. Baldwin &c. 6 Mass. 316; Dickens v. Beal, 10 Peters 582; Smith v. Hawthorn, 3 Rawle 358; Weakly v. Bell &c. 9 Watts 279; Jenks v. Doylestown Bank, 4 W. & S. 511. Due attention must be given, 1st, to the direction of the letter; 2d, to the time that the notice is given or sent; 3d, to what is expressed in the notice.
The letter containing the notice to a party may be addressed to him at his place of residence, Bussard v. Levering, 6 Wheat. 102; or to the post office nearest thereto, 11 Johns. 232, Dickins v. Beal, 10 Peters 582; Bank of U. S. v. Norwood, 1 Har. & Johns. 423; or to a particular post office directed by him, Shelton &c. v. Braithwaite, 8 M. & W. 252; or to that to which he usually resorts for his letters, Reid v. Payne, 16 Johns. 221; Bank of Columbia v. Lawrence, 1 Peters 583; Jones v. Lewis, 8 W. & S. 14; Mercer v. Lancaster, 5 Barr 162. If he is in the habit of receiving letters at two post offices, notice directed to either will be good. Bank of U. S. v. Carneal, 2 Peters 551; Bank of Geneva v. Howlett, 4 Wend. 331; Rand v. Reynolds, 2 Grat. 171. In Massachusetts, where there are two post offices in a town, notice by letter to an endorser, addressed to him at the town generally, is sufficient, unless the party addressed has been generally accustomed to receive his letters at one of the offices in particular, and to have his letters addressed to him there by his correspondents. Morton v. Westcott, 8 Cush. 425. So in New York, though there may be several post offices in the same town, it is enough to send notice to the town where the drawer or endorser lives, unless it appear that the holder knew that the notice should have been directed in a different manDonner v. Remer, 21 Wend. 13, S. C. 23 Wend. 624; Seneca Co. Bank v. Neass, 3 Comstock 444.
If the holder knows the proper place to which to direct the notice, he should inform the notary of it. Fitler v. Morris, 6 Whart. 415; Haly v. Brown, 5 Barr 181. In the absence of sufficient information from this source, diligence must be used to ascertain the proper place. Beveridge v. Burgis, 3 Camp. 262; Bank of Utica v. DeMott, 13 Johns. 432; Stuckert v. Anderson, 3 Whart. 119; Phepps &c. v. Chase, 6 Metcalf 492. If it can be thus ascertained, the notice should be directed accordingly. Wells v. Whitehead, 15 Wend. 531. If on enquiry in the city, where the protest takes place, the notary ascertain the county of the party's residence, but cannot ascertain whether there be a post office nearer to his resi-VOL. II.-13
dence than that located at the seat of justice in the county, the direction may be to the place of his residence near such post office, for example, to Walnut Bottom, near Carlisle. Weakly v. Bell &c. 9 Watts 283; Bank of U. S. v. Carneal, 2 Peters 551, 2.
The notice is to be sent to the place which, according to the information received, is the best. Bank of Utica v. Davidson, 5 Wend. 488. It is not absolutely necessary that notice should be brought home to the endorser, nor even that it should be directed to the place of his residence. It is enough that the holder makes diligent enquiry, and acts upon the best information he is able to procure. If, after doing so, the notice fail to reach the endorser, the misfortune falls on him not on the holder. Bank of Utica v. Bender, 21 Wend. 645; Ransom v. Meek, 2 Hill 592; Wood &c v. Curl, 4 Metcalf 205; Preston v. Dayson &c. 7 Louis. 12; Hains v. Robinson, 4 How. 348; Lambert &c. v. Ghiselin, 9 How. 557.
In the last case, although the person of whom the holder enquired was mistaken, and the notice was not sent to the nearest or usual post office of the defendant, yet in the opinion of the supreme court, the plaintiffs used all the diligence which the law requires; and the liability of the endorser was therefore fixed. The holder thus having a right of action, no information afterwards received imposes on him the obligation of giving a further notice.
A bill, dated at New York, was protested there; the notary's clerk enquired after the drawers, at the banks in New York and elsewhere, and was informed that they resided in Virginia at Norfolk; two notices were put into the post office addressed to them, one notice directed to Norfolk, the other to New York. This was held sufficient: though it turned out that the drawers resided at Petersburg. Chapman v. Lipscombe &c. 1 Johns. 294.
If the holder, after making proper enquiry, is unable to get better information of the residence, he may, perhaps, be justified in directing the notice to the place at which the bill is dated; that furnishing some evidence of it. Mann v. Moors, Ry. & Moo. 249; Walter v. Haynes, Id. 149, 21 Eng. Com. Law Rep. 402, 429; Dickins v. Beal, 10 Peters 574. In a case in Kentucky, in which a notice was sent to Louisville, where the bill was dated, and the process against the party was served on him in the county in which Louisville is situated, these facts were deemed sufficient, in the absence of all opposing evidence, to authorize the conclusion that the notice was properly directed. Page &c. v. Prentice &c. 5 B. Monroe 7.