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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
as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor. 4 Barn. & Cress. 339; 10 Eng. Com. Law Rep. 350. This short judgment, in which the whole court concurred, Lord Denman, many years afterwards, (in 1841) pronounced to be perfectly correct in its statement of the fact and the law, and to have the merit of adhering closely to the point raised in argument. "It has," he said, "never been questioned by any judicial authority." 3 Adol. & El. N. S. 410.
Upon the authority of that case the court of exchequer chamber and the house of lords decided Solarte &c. v. Palmer &c. and held the notice there given insufficient. 7 Bingh. 530, 1 Bingh. N. C. 194, 20 Eng. Com. Law Rep. 226, 27 Id. 351, 8 Bligh's Par. Cas. N. S. 874. In delivering the judgment in the exchequer chamber, Tindal, C. J. said the notice should at least inform the party to whom it is addressed, either in express terms or by necessary implication, that the bill has been dishonoured, and that the holder looks to him for payment of the amount. Park, J. when delivering the judges' opinion to the lords, omits the latter clause, and merely says that "such a notice ought in express terms, or by necessary implication, to convey full information that the bill had been dishonoured."
In truth, the decision did not turn upon or require any allusion to the doctrine of Ashurst and Buller, J's. in Tindal v. Brown, 1 T. R. 167, as to the necessity of stating that the holder looks to the party addressed. 2 Adol. & El. Ñ. S. 411. N. The controversy was, and for a long time it continued, on that branch of the notice as to which Tindal, C. J. and Sir James Allan Park (of the common pleas) agreed, requiring notice of dishonour in express terms or by necessary implication. Phillips v. Gould, 8 C. & P. 355, 34 Eng. Com. Law Rep. 425.
The court of king's bench held the dishonour of a bill to be sufficiently notified by the phrase, "the bill is this day returned with charges." Grugeon v. Smith, 6 Adol. & El. 499, 33 Eng. Com. Law Rep. 128. A few days after, but without being aware of this decision, the court of common pleas held insufficient a notice, saying the note "became due yesterday and is returned to me unpaid;" Tindal, C. J. observing that he did not see how it was "possible to escape from the rule established by the two decided cases, without resorting to such subtle distinctions as would make the rule itself useless in practice." Boulton v. Welsh, 3 Bingh. N. C. 688, 32 Eng. Com. Law Rep. 293. Lord Denman thinks these cases (Grugeon v. Smith and Boulton v. Welsh) indi
cate no necessary difference of opinion between the two courts. 2 Adol. & El. N. S. 412; but a different view was taken in the court of exchequer by Sir James Parke. Subscribing to the decision in Grugeon v. Smith, and considering Boulton v. Welsh not rightly determined, the court held sufficient a notice to the endorser of a note that it "has been returned unpaid" the notice requesting him to "remit the amount thereof with 1s. 6d. noting." Hedger v. Steavenson, 2 M.
& W. 805.
Adverting to the decision in Solarte v. Palmer, Parke, B. (2 M. & W. 805) said: "By that decision we are bound, though I am not prepared to say that I am bound by all the reasoning or language of the learned judges in giving their opinion, and therefore should myself doubt whether we could go so far as to say that it ought to appear upon the face of the instrument, by express terms or necessary implication,' that the bill was presented and dishonoured; it seems to me enough if it appear by reasonable intendment, and would be inferred by any man of business, that the bill has been presented to the acceptor and not paid by him. However, supposing that we are bound by the precise expression of Tindal, C. J. in delivering judgment in the exchequer chamber, we ought not to put a strict construction on the term 'necessary implication;'" a sentiment concurred in by Barons Bolland and Alderson, two of the judges consulted by the Lords, in Solarte v. Palmer.
In the common pleas, Tindal, C. J. saw no reason for saying that the judgment in Boulton v. Welsh is not law: though it had gone the full length of Solarte v. Palmer, he thought it had not exceeded that case. The charges for noting in Grugeon v. Smith and Hedger v. Steavenson, he observed, were circumstances which did not exist in Boulton v. Welsh, and which shewed, by necessary inference, that the bill had been dishonoured. Houlditch v. Cauty, 4 Bingh. N. C. 411, 33 Eng. Com. Law Rep. 396.
The notice was held insufficient by the queen's bench in Strange &c. v. Price, 2 Per. & Dav. 278, 10 Adol. & El. 125, 37 Eng. Com. Law Rep. 71; and by the common pleas in Messenger v. Southey, 1 Man. & Grang. 76, 39 Eng. Com. Law Rep. 363; Tindal, C. J. in delivering the judgment in the last case, entirely agreeing "that the rule laid down by the house of lords is not to be extended, and that any case to be governed by it should fall clearly within the principle."
Baron Parke adhered to his opinion in Hedger v. Steavenson. Understanding the term "necessary implication," with the latitude recognized in that case, and taking the rule to be