« PreviousContinue »
If it turn out that the notice was not properly directed, then the jury are to be satisfied that due diligence was used to discover the proper direction. Bateman v. Joseph, 2 Camp. 464, 12 East 433; 20 Johns. 17. For it has been decided in several of the states to be insufficient to send notice to the drawer at the place where the bill was dated, when in fact he lived at another place, and there was a failure to make due enquiry. Fisher v. Evans, 5 Binn. 541; Barnwell v. Mitchell, 3 Conn. 101; Lowery &c. v. Scott, 24 Wend. 358; Spencer v. Bank of Salina, 3 Hill 520; Carroll v. Upton, 3 Comstock 274.
In Louisiana there is a statute of the 13th of March 1827, which is construed to declare that whenever the notary certifies that after diligent enquiry for the residence of the party, he could not find it, and that a notice had been lodged in the nearest post office, addressed to him at the place where the contract was made, it shall be deemed equivalent to personal notice. Preston v. Daysson &c. 7 Louis. 11.
In New York there is a statute declaring a notice of nonpayment sufficient, directed to the city or town where the person sought to be charged by such notice resided at the time of making or endorsing a bill of exchange or promissory note. Sess. Acts 1835, p. 152; 21 Wend. 12, 23 Wend. 624.
Drawers and endorsers, it has been remarked by Bronson, J. can easily prevent mistakes, by writing under their names their place of residence, or the place where they desire notice should be sent, in case the bill or note is protested. 2 Hill 592. The Pennsylvania act of the 5th of April 1849 proceeds on this ground. It provides (in § 7, 8,) as follows:
Where suit is brought in any of the courts of this commonwealth, upon or for the recovery of the amount due on any promissory note, post note, note of hand, due bill, bill of exchange, draft, order, check, or other instrument of writing in the nature thereof, no plea shall be held available, and no defence shall be made or taken by the defendant for want of proper and timely demand of payment and acceptance, or proper and timely protest and notice of non-acceptance or non-payment of the same, unless the respective places where such demand is to be made, and where such notice is to be served and given, or the names and residences or places of business of the respective parties thereto, shall be legibly and distinctly set forth thereon.
When such places of demand and notice, or such names, residences, or places of business, are omitted to be set forth, demand of acceptance, as well as protest for and notice of non-acceptance, may be made or given at any time before the maturity of such instruments as require acceptance, and demand of payment, as well as protest for and notice of non-payment of the same, at any time after the maturity thereof, and before suit is brought thereon. 7 Harris 397, 8.
The rule as to the time, as well as place, of giving notice, is very different in a state wherein no such statute exists.
8. How soon notice must be given or sent.
The notice of dishonour must not be prior in time to the default of the acceptor or maker. Jackson v. Richards, 2 Caines's Rep. 343; Boston Bank v. Hodges &c. 9 Pick. 420.
It has been contended that notice cannot be given on the same day on which the bill or note becomes due; but it is settled otherwise. See ante, 1 Rob. Pract. 442; Bussard v. Levering, 6 Wheat. 102; Lindenberger &c. v. Beall, Id. 104; Haslett v. Ehrick, 1 Nott & McCord 116; Coleman v. Carpenter, 9 Barr 178.
These decisions only shew that notice may be given on the last day of grace; not that it must be given on that day. It is sufficient to give notice the next day to a party living in the same town. Tindal &c. v. Brown, 1 T. R. 167, 6 East 8; 2 Camp. 208. And there is a like rule if he lives elsewhere, and notice is sent him by mail. Although on the last day of grace there may be a mail closing that evening at half past 8 o'clock, the notice is not required to be sent on that day. It may be mailed next day, within post time of that day. When the last day of grace is on the 25th, and the notice is put in the post office on the 26th, before the closing of the mail of that day, it is in due time. Bank of Alexandria v. Swann, 9 Peters 45; Lenox &c. v. Roberts, 2 Wheat. 373; Smith v. Mullett, 2 Camp. 208. If there be several mails on that day, it is clearly in time to send the notice by that mail which leaves next after the hours of business cominence for the day. Howard v. Ives, 1 Hill 265.
If the last day of grace be Saturday, notice may be given on Monday, or sent by Monday's post. Howard v. Ives, 1 Hill 265. And if instead of its being Sunday it be the fourth of July, the notice may be given on the fifth. Cuyler v. Stevens, 4 Wend. 566. See ante, p. 407, 8.
Where the bill was dishonoured on Saturday, and the post left daily at half after nine in the morning, Best, J. was of opinion that a notice by the mail of Tuesday morning was in time. Hanks &c. v. Salter, 4 Bingh. 715, 15 Eng. Com. Law Rep. 125.
In many cases where the bill passes through numerous hands by endorsement, the holder has no means of knowing the resi dence of any of the remote endorsers, or of the drawer. He has therefore the right to notify any previous endorser; and an endorser duly notified by any subsequent party who is lia
ble on the bill, having the same right as to parties previous to himself, the notices may pass back to the drawer through the same or any portion of the same circuit through which the bill itself has passed. But if in pursuing this mode of giving notice, any party who is liable fails to use due diligence in forwarding it, he, by his laches, makes the bill his own, and thereby discharges all preceding parties whose liability depends upon the forwarding notice in due time. Triplett v. Hunt, 3 Dana 127; Hickman v. Ryan, 5 Lit. 24; F. & M. Bank v. Turner, 2 Lit. 19. Nor can the over-diligence on the part of one cure the want of due diligence in any of the parties standing before him. Brown & Sons v. Ferguson, 4 Leigh 50.
The case of Marsh v. Maxwell, 2 Camp. 210, note, has been cited in Pennsylvania to sustain the position that when notice is given by the holder directly to a remote endorser, it is soon enough if it reach him as soon as it would have reached him circuitously through other endorsers. Etting v. Schuylkill Bank, 2 Barr 357. This position, however, is not in accordance with the rule as now established. Though each endorser has his own day, the holder has not as many days as there are endorsers. He may, when the bill has been dishonoured, either resort to his immediate endorser, and then he must give him notice within the proper time, or he may resort to the drawer, and then he must give him notice within the same time as if there were no other party intervening between the drawer and the holder. Dobree v. Eastwood, 3 C. & P. 250; 14 Eng. Com. Law Rep. 289. The rule of this case has been since approved. The holder has his day to give notice to any party he may seek to charge, and each of the prior endorsers in turn has his day. Each has one day to give notice to all the parties against whom he intends to enforce his remedy. Rowe v. Tipper, 13 Com. Bench (4 J. Scott) 255, 76 Eng. Com. Law Rep. 255, 20 Eng. Law & Eq. 220; Friend v. Wilkinson &c. 9 Grat. 31.
A note was protested at New York, on Saturday the 12th of August 1826. On Monday the 14th the notary gave notice of dishonour to an endorser, and enquired of him where the defendant (a prior endorser) resided. He not knowing, enquired of another, and the next day after receiving the information (the 15th) put the notice into the post office at New York, directed to the defendant at Philadelphia. The supreme court of Pennsylvania held this notice sufficient. Smyth v. Hawthorn, 3 Rawle 359.
When the holder has to give notice to a party in another city, if instead of sending the notice by mail to that party, he write to a person there to employ a notary to give the no
tice, it ought to be given on the day that the letter arrives in that city. U. S. v. Barker's adm'x, 4 Wash. C. C. R. 464. Writing in that way to a person at a distance, is a course seldom advisable, and therefore rarely pursued. If indeed a note be received in payment of a debt, from a person who did not endorse it, it would be sufficient to enquire in due time of that person from whom he received it, and send notice accordingly. Baldwin &c. v. Richardson &c. 1 Barn. & Cress. 245, 8 Eng. Com. Law Rep. 66. But generally there is an endorsement. And it is customary among bankers and merchants, where the bill is endorsed and sent abroad for collection, for the bank, agent or holder to send the notices of dishonour to the place and party from whom the bill was received, for distribution, and for that party to send to the next. Scott v. Lifford, 9 East 347; Smith v. Roach's ex'or, 7 B. Monroe 18; Colt &c. v. Noble, 5 Mass. 169; Eagle Bank v. Chapin, 3 Pick. 180.
For the purpose of transmitting notice of protest, a bank, to which the legal interest passes by endorsement, though it may be in fact a mere agent to collect, is considered the holder. Clode &c. v. Bayley, 12 M. & W. 51; Mead v. Enge, 5 Cow. 308.
If the agent gives due notice to his principal of the dishonour, prompt notice from the latter will be in time to charge the prior parties; though if the notice had been sent directly by the agent, it might have reached them much sooner. Mead v. Enge, 5 Cow. 308; Bank of U. S. v. Davis, 2 Hill 457; Church v. Barlow, 9 Pick. 549.
When the dishonoured bill is returned by the banker or agent to the principal, he is not bound, omissis omnibus aliis negotiis, to post off immediately with notice; it is sufficient to use reasonable diligence. Scott v. Lifford, 9 East 346. He has to the next day, or the next convenient mail. Eagle Bank v. Chapin, 3 Pick. 183.
If the mail does not arrive until the business of the day is considered as closed, a bank to which a notice is sent by that mail, is not chargeable with laches in not receiving it until the next morning. Mead v. Enge, 5 Cow. 306.
In these consecutive notices from one party to the next immediately preceding him, the former is never bound to forward notice on the very day upon which he received it, but may always wait till the next. Williams v. Smith, 2 Barn. & Ald. 500; Howard v. Ives, 1 Hill 265; Smith v. Roach's ex'or, 7 B. Monroe 18. It makes no difference that there is no post on the day following that on which he receives the notice the next post after the day on which he receives the notice is soon enough. Geill v. Jeremy &c. 1 Mood. & Malk. 61, 22 Eng. Com. Law Rep. 249.
If received on Saturday or Sunday, he is not bound to put it into the post office, or send it by special messenger, on Sunday. Wright v. Shawcross, 2 Barn. & Ald. 501; Eagle Bank v. Chapin, 3 Pick. 183. Though the mail leave at 12 o'clock in the day, he has the whole of Monday to put the notice in the post office. Bray &c. v. Hadwen, 5 M. & S. 68.
Some of the foregoing positions may be illustrated by the following examples:
A bill drawn at New York on a person at Rochester, and accepted payable there, was protested the 28th of December 1841. The notice was sent by the holder to the second endorser, who was at Syracuse, thence to the payee in New York, by whom it was there mailed on the 3d of January 1842, to the drawer in Philadelphia. It reached that city on the 4th, but in consequence of a mistake, there being two persons of the drawer's name, was not received by the drawer till the 8th. The notice to him was considered sufficient. "Allowing," said Rogers, J., "one day to each of the parties to the bill, and one day for Sunday, which was an intervening day, greater diligence could not reasonably be required, when it is remembered that Rochester is 400 miles from New York, and consequently 500 from Philadelphia, where the drawer resided. The time it reached the defendant is of no consequence, as the delay arose from a circumstance which the payee could not control." Jones v. Wardell, 6 W. & S. 401.
A bill payable at New Orleans being protested the 4th of January, notices for the different parties were, on the same day, put in the mail. These were sent to the party who had
transmitted the bill to New Orleans; and by the first mail after their arrival, he transmitted to the other parties respectively the notices for them. It was considered that there was made out, prima facie, a case of reasonable diligence, notwithstanding the letter with one of the notices did not reach its destination until a delay of two months longer than should have occurred. McClane v. Fitch &c. 4 B. Monroe 600.
9. What must be expressed in the notice.
For about 40 years after the case of Tindal v. Brown, 1 T. R. 167, there was but little difficulty in England as to the terms of the notice to the drawer or endorsers of a bill or the endorsers of a note. In the 30 years which have elapsed since Hartley v. Case, the subject has been most fruitful of litigation. Lord Tenterden there laid down, that though no precise form of words was necessary to be used in giving notice of dishonour, yet the language employed must be such