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Camp. 145; Thackray v. Blackett, Id. 164.
Still he would not go counter to the rule established in Bickerdike v. BollIf a bill was drawn without any funds in hand at the time of drawing, applicable to it, or any ground of reasonable expectation that when the bill became due the drawee would come forward and pay it, he and his associates in the king's bench held that notice must be given. Claridge v. Dalton, 4 M. & S. 226.
The case of Walwyn v. St. Quintin has indeed been considered inconsistent with Brown v. Maffey, 15 East 216, and is disapproved in Cory &c. v. Scott, 3 Barn. & Ald. 619, 5 Eng. Com. Law Rep. 402; it being considered in this last case that want of notice might produce injury to the drawer; there being parties against whom, if he paid the bill, he ought to have remedy over.
But the English courts still acknowledge that they are bound by Bickerdike v. Bollman, 16 M. & W. 748. It is an excepted case, the principle of which is not to be extended. The drawer is entitled to notice if he have reasonable ground to expect the bill will be paid, although he have no assets in the acceptor's hands. Rucker v. Hill, 16 East 43; Lafitte v. Slatter, 6 Bingh. 623, 19 Eng. Com. Law Rep. 181. And, perhaps, Bickerdike v. Bollman, applies only where the bill has been accepted for the accommodation of the drawer, who, in such case, if he knew that the acceptor had no assets, can incur no damage from want of notice. Tindal, C. J. S. C.
When the drawer, with his own hand, makes the bill payable at his own house, that has been deemed evidence of its being an accommodation acceptance, for the payment of which he is to provide at maturity; and an endorsee has maintained an action against him without proving notice of dishonour. Sharp v. Bailey, 9 Barn. & Cress. 44, 17 Eng. Com. Law Rep. 329.
It is considered that the same reason applies to want of presentment as to want of notice of dishonour, and that as to both the same rule ought to prevail with respect to want of effects operating as an excuse. The drawer cannot object either the want of presentment or the want of notice when he is in no respect prejudiced by the want of either, having no remedy against any other party on the bill. Terry &c. v. Parker, 6 Adol. & El. 502, 33 Eng. Com. Law Rep. 129.
In the U. States, the subject has been frequently discussed. French's ex'x v. Bank of Columbia, 4 Cranch 154; Hopkirk v. Page, 2 Brock. 24; Stanto &c. v. Blossom &c. 14 Mass. 116; Dickins v. Beal, 10 Peters 577; Rhett v. Poe, 2 How. 479. In N. York, the supreme court has decided one case on the au
thority of Bickerdike v. Bollman, Hoffman &c. v. Smith, 1 Caines' Rep. 157, and in another recognized the rule as laid down by Lord Ellenborough in Claridge v. Dalton, 4 M. & S. 229, that notice must be given the drawer if the bill was drawn under such circumstances as induced him to entertain a reasonable expectation that the bill would be accepted and paid. Robinson v. Ames, 20 Johns. 150. In a case in Maryland, of checks drawn on a public banking institution, by a party whose funds in the bank fell far short of his checks, the court entertained no doubt that the party knew when he drew the checks that they would be dishonoured, and never at any subsequent period had reason to expect that they would be paid by the bank, and could not, therefore, set up as a defence the want of notice. Eichelberger v. Finley, 7 Har. & J. 387. Notice was also dispensed with in Cathell v. Goodwin, 1 Har. & Gill 470; Spear &c. v. Atkinson, 1 Iredell 263; Wollenweber v. Ketterlinus, 5 Harris 399.
The practical exposition of Bickerdike v. Bollman, that was given in Sharp v. Bailey and Lafitte v. Slatter, has been since approved in Massachusetts, Kinsley v. Robinson, 21 Pick. 328; and Maryland, Orear &c. v. McDonald &c. 9 Gill 356. Although there was no notice to the drawer, there was a verdict against him in the first of these cases on the ground that the bill was drawn for his accommodation; and in the last case demand and notice were held indispensable because the drawers, from the time of drawing the bill up to the period when it became due, acted under the full expectation, honestly entertained and based upon reasonable grounds, that it would be paid by the drawees at maturity.
2. Acceptance of bill for drawer's accommodation, does not dispense with notice to endorser.
The case of an endorser of a bill stands on a different footing from that of a drawer. Brown &c. v. Maffey, 15 East 216. He is in the nature of a surety, or guarantor of its payment on due presentment, and is presumed to know nothing about the arrangement between the drawer and drawee. Story on Bills 314. He is prima facie entitled to notice. It is not enough to exempt him that the bill is drawn without value, and that the drawer has no effects in the drawee's hands. Wilkes v. Jacks, Peake's N. P. C. 202. If he endorses to the holder, without value, or effects in the hands of prior parties, non constat that he is not entitled to notice; for he may have endorsed for the accommodation of others, in which case it is now clearly established by Norton v. Pickering, 8 Barn. &
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