Page images

upwards, gives notice to the party from whom he has taken the bill, and the time allowed for each notice is dependent on whether the giver and recipient of it live in the same or in different places.

Now, it is plain that if the holder gives notice only to his indorser, the power of the holder to sue any other party will depend on whether the indorser is prudent or diligent enough to give notice to the person from whom he received the bill, and so on through all the parties up to the drawer.

So that, if the holder has not himself given notice to the person whom he sues, it will be necessary to prove the due transmission of notice through each of the prior parties, and that, too, in proper time-for the diligence of one is not to compensate for the negligence of another; i. e. if any party is himself discharged for want of punctual notice, a notice from him can in no case bind another party. If there are three indorsers and the first receives notice late but transmits it quickly and so makes up for lost time, the notice does not bind the second or the third, because the first was discharged by the holder's neglect.

Hence the advice given to the holder to give notice at once by post to as many prior parties as he is able to send to.

8. It may be here mentioned that when the bill is in the hands of an agent, as an attorney or banker, he is considered as a separate party, as regards time for giving notice. The words of the new Act are:

"Where a bill when dishonored is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder."

9. The notice may be given as soon as the instrument is dishonored, and must be given within a reasonable time thereafter. The rule as to what is reasonable—the rule has now received legislative exposition in the new Act in the following words :

[ocr errors]

In the absence of special circumstances notice is not deemed to have been given within a reasonable time, unless

(a.) Where the person giving and the person to receive notice

reside in the same place, 'the notice is given or sent off in time to reach the latter on the day after the dishonor of the bill.

(b.) Where the person giving and the person to receive notice reside in different places, the notice is sent off on the day after the dishonor of the bill, if there be a post at a convenient hour on that day, and if there be no such post on that day then by the next post thereafter. Where a party to a bill receives due notice of dishonor, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonor.

10. The usual way of giving notice, particularly where the parties live at a distance, is by post, for it not only has the advantage of the distinctness of a written communication; but if the letter is properly addressed and miscarries, the sender of the notice does not lose his rights, and has merely to prove the posting of the notice.

In order to prove the sending of the notice, it is necessary to call as a witness the person who posted it, and also the writer or some one else who can speak to its contents; it is therefore as well that the writer should also be the poster. It will be sufficient proof of posting, however, if the writer of the notice deposes to putting it in a box or on a table for posting, and a servant afterward deposes that he always posts all the letters so placed.

It may here be as well to give this caution to prevent the failure of evidence of notice. If you have made a copy of the notice, or an entry or memorandum of the writing or posting of the notice, of which, from the mul tiplicity of your business or from other reasons, you have no independent recollection, you should bring the copy or memorandum into court, for it will not be sufficient to have refreshed your memory with it previous to giving evidence. If you have an independent recollection, of course all reference to the copy, memorandum, or entry, is unnecessary.

The notice should be sent to the residence or place of business of the person for whom it is intended. If the notice reaches him it does not matter whether it be rightly addressed, and if it be rightly addressed it will be treated as if it had reached him, though he truthfully denies it, for the sender is not to suffer by the failure of the post.

If the notice be sent to the address of the party given

on the bill it will be treated as having reached him, though he truthfully denies it; so also if a mistake be fairly made in the address, owing to the illegibility of the writing on the bill.

11. Notice may be personally served in writing, or may be left in writing at the residence or place of business of the party, or it may be delivered by word of mouth to the party himself or to his clerk at his place of business. In all these cases the person taking the notice must prove its delivery; and if it be in writing, one person may prove the writing and another the delivery.

12. The notice need not state on whose behalf it is given; but if it is stated to be given on behalf of any person, the receiver of the notice will be discharged from liability if, for any reason, he cannot be sued by the party on whose behalf the notice is said to be given; for instance, if it be sent by an early indorsee, who has not himself had notice, and is therefore discharged.

13. Notice need not be personal, but will be sufficient if given to the clerk of a man of business at his office, or in case of a man not in business, to his wife at his house, for a man who becomes a party to a bill or note is expected to leave some one at his house or office capable of receiving notice. But it would not be safe to give notice to the clerk or wife of a party anywhere else than at his office or house respectively.

14. If a party be bankrupt he must still have notice, and so should his assignees if appointed, and in case the bankrupt have absconded, notice should be given to the messenger in possession.

If a party be dead, notice should be given to his personal representatives.

15. To one who has merely guaranteed the payment of a bill or note, notice need not be given unless he has contracted to receive it, or would be prejudiced by the absence of it.

If a man is liable on a bond or mortgage, or other independent instrument, and also as indorser of a bill or note for the same consideration, he may be sued on the deed without notice of dishonor of the bill.

16. Where two or more parties are jointly liable on a bill (see chap. xx, sect. 1, 2), notice to one is sufficient, whether they be general partners or not.

In the same way, if A draw on A, B, and C, notice of

dishonor to the drawer is unnecessary, for, being also an acceptor, he has himself been one of the parties who have dishonored the bill.

17. When we speak of notice of dishonor being necessary, we shall of course be understood to mean that it must be delivered before action brought, so that if there is any doubt about the writ being issued before the letter containing notice would in due course have arrived, the plaintiff will be nonsuited.

18. The reason why neglect to give notice discharges from all liability each party who should have received notice, is that, after a reasonable time, such parties may fairly presume that the bill or note is satisfied.

The drawer in particular would be injured if he were compellable to take up the bill without notice of dishonor, for the drawer is presumed to have effects in the hands of the drawee; and if the drawer have timely notice of dishonor, (whether by non-acceptance or nonpayment) he may be able to withdraw his effects from the hands of the drawee or acceptor.

And this brings us to the consideration of what state of facts, or conduct of parties, will excuse the holder from giving notice of dishonor.

The rule is, that every party is entitled to notice of dishonor who, when called upon to pay, may have any right to recover against any other party to the instru ment. It is because they never come within this rule, that an acceptor or maker are never entitled to notice, being always, as regards the public, primarily liable.

By this rule, if the drawer has at no time during the currency of the bill had effects in the acceptor's hands, i. e. if the bill was accepted for the drawer's accommodation, and has always remained an accommodation bill, the drawer need not have notice of dishonor, for there is no one whom he can sue on the bill.

But if the bill was for the accommodation of the acceptor, the drawer will be entitled to notice, for, on paying the bill, he can sue the acceptor.

So, if the bill were for the accommodation of an indorser, the drawer will be entitled to notice, for, on payment, he can sue the indorser.

In case of a note, a corresponding state of facts can hardly occur.

19. But, by promising to pay, a man waives his right

to insist on the absence of notice, and it is the same though the promise be made under a mistake of law, for all are presumed to know the law; but it will not be binding if made under a mistake of fact.

For example, if at the time the man made the promise to pay an overdue bill he supposed the bill to have been presented, while in truth it had not, the promise would not waive his right to insist on want of notice.

And the promise need not have been made to the plaintiff who sues on the bill, but will be binding, though the defendant have made it to a stranger, not a party to the bill.

If a party to the bill or note promise, before it is due, to pay it if dishonored, this does not dispense with notice, for it presumes notice will be given, and promises nothing but what the law would enforce. But if he tell the holder that he will call at the acceptor's and see if the bill be paid at maturity, this amounts to a consent to dispense with notice.

An agreement to dispense with notice binds the parties to the agreement, but leaves unaltered the necessity of sending notice to the others.

Sometimes a promise to pay, or part payment, have been treated not so much as a dispensing with notice, but as presumptive evidence that notice has been received, though a jury are not bound to draw the inference.

So, where the defendant had said to one who might have been entitled to sue, "I have been cheated out of the bill, and do not intend to pay ;" and also where the defendant said that he did not mean to rely on the informality of the notice, notice of dishonor was in both cases presumed.

A statement by the drawee that he shall not meet the bill, and warning from him to the drawer to that effect will not excuse notice, unless the drawer consent to dispense with it.

Where the drawer, having supplied the acceptor with goods, draws a bill on him, not payable before the goods may be expected to arrive, the drawer may be considered to have reasonable expectation that the bill will be honored, and this is equivalent to having effects in the acceptor's hands. There are other circumstances, too minute to be detailed at length, which will be considered

« PreviousContinue »