Page images
PDF
EPUB

CHAPTER
XV.

AT WHAT

PLACE.

"It is sufficient for a party in India," says Eyre, C.J., " to send notice by the first regular ship going to England, and he is not bound to accept the uncertain conveyance of a foreign ship."-"It was enough to do so by the first ship, whether English or foreign, that was going to England in the regular course of conveyance" (p).

We have already seen (ante, pp. 221 and 229) in what cases a copy or notice of the protest must accompany notice of the dishonour of a foreign bill.

Thirdly, as to the place at which notice is to be given. A notice of dishonour should regularly be sent to the place of business, or to the residence of the party for whom it is designed (q).

If a party, whose name is on a bill, direct a notice to be sent to him when absent at a distance from his residence, so that its transmission thither, and thence to the prior parties, will occupy more time than if the notice had passed through the ordinary place of residence, a notice to him at the substituted and more distant place will, it seems, not only be a good notice as against him, but also a good notice as against prior parties (r).

A message sent to a counting-house within the usual hours of business has been held sufficient, though no person be in attendance. Thus, where the holder sent to a counting-house, and the messenger knocked at the outer door on two successive days, making noise sufficient to be heard by persons within, Lord Ellenborough said (s): "The counting-house is a place where all appointments respecting the business, and all notices, should be addressed; and it is the duty of the merchant to take care that a proper person be in attendance. It has, however, been argued, that notice in writing left at the counting-house, or put into the post, was necessary, but the law does not require it, and with whom was it to be left? Putting a letter into the post is only one mode of giving notice; but, where both parties are residing in the same town, sending a clerk is a more regular and less exceptionable mode"(†). But

(p) Muilman v. D'Eguino, 2
H. Bl. 565.
(1) It
has been held in
America that notice put into
the post-office, if the parties live
in different places, is good. It is
otherwise when the parties reside
in the same town. See 6th
American ed. of Byles on Bills,
p. 424.

() Shelton v. Braithwaite, 8 M. & W. 252; Crosse v. Smith, infra.

(*) Crosse v. Smith was decided before Solarte v. Palmer, and when the form of pleading made it unnecessary to distinguish between actual notice and a dispensation with notice.

(1) Crosse v. Smith, 1 M. & S.

XV.

the mere act of going and knocking at the door will not CHAPTER sustain an allegation of actual notice, though it may enlarge the time necessary for giving it, or under some circumstances be evidence of a dispensation (u). A message left at the dwelling-house of a private person with his wife has been held sufficient ().

Fourthly, as to the time when notice of dishonour should WHEN TO BE be given.

The general rule is, that notice must be given before action brought either immediately, or within a reasonable time after the dishonour; and that what is a reasonable time is a question of law, depending on the facts of each particular case (y). Accordingly, the due interval within which notice may or must be given, in a variety of conjunctures, has been defined by the decisions.

In the absence of special circumstances, notice is not deemed to have been given within a reasonable time, unless it be sent off on the day (being a business day, Code, s. 92) following the dishonour, if there be a post at a convenient hour on that day, or if there be none, by the next post thereafter, in cases where the person giving and the person receiving notice reside in different places. "It is," says Abbott, C.J., "of the greatest importance to commerce that some plain and precise rule should be laid down, to guide persons in all cases, as to the time within which notice of the dishonour of bills must be given. That time I have always understood to be, the departure of the post on the day following that in which the party receives intelligence of the dishonour. If, instead of that rule, we are to say that the party must give notice by the next practicable post, we should raise, in many cases, difficult questions of fact, and should, according to the different local situations of parties, give them more or less facility in complying with the rule. But no dispute can arise from adopting the rule which I have stated "(z).

[blocks in formation]

when a bill is dishonoured by
non-acceptance, see Code, s. 43
(1), and a bill or note by non-
payment, sect. 47 (1).

(-) Code, s. 49 (12) b; Williams
v. Smith, 2 B. & Ald. 496; 21 R. R.
373. In Gladwell v. Turner,
supra, Martin, B., was of opinion
that next day meant next day
after holder, having exercised
reasonable diligence, was in a
position to give notice.

GIVEN.

Where the

parties live in

different

places.

CHAPTER

XV.

In the same place.

If the post does not go out on the next day, notice need not be posted till the day after, or till the next post-day. Thus, where the plaintiff received intelligence of the dishonour on Thursday morning, at nine o'clock, though the post did not go out till nine o'clock at night, and no bag was made up on the Friday, but the plaintiff wrote on Saturday, Lord Tenterden said, "It suffices, in this case, that the plaintiff put the letter into the post on Saturday; for, if he had done so on the Friday, it would not have been forwarded till the Saturday night, and it is immaterial whether the letter lay in the post-office or in the plaintiff's hands till the Saturday" (a). So, if the post goes out at an unseasonable hour in the morning, the holder is not bound to get up and write by the second post, but may wait for the third. Thus, where a bill was dishonoured on Saturday in a place where the post went out at half-past nine in the morning, it was held that it was sufficient notice of dishonour to send a letter by the following Tuesday morning's post (b).

So, too, in the absence of special circumstances, where both the parties live in the same town, or where they live in London (), notice must be given in time to be received in the course of the business day next after the day of dishonour (d). And, therefore, though a letter be put into the post in London on the day after the dishonour, it will not be sufficient notice, unless posted in time to be delivered the same day. Lord Ellenborough: "Where the parties reside in London, each party should have a day to give notice. The holder of a bill is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonour. If you limit a man to a fractional part of a day, it will come to a question how swiftly the notice can be conveyed, a man and horse must be employed, and you will have a race against time. But here a day has been lost. The plaintiff

(a) Geill v. Jeremy, Moo. & M. 61.

(b) Hawkes v. Salter, 4 Bing. 715; 1 Moo. & P. 750; 29 R. R. 708; Bray v. Hadwen, 5 M. & Sel. 68; 17 R. R. 277; Wright v. Shawcross, 2 B. & Ald. 501, n.

(c) I am not aware that the precise extent of the word London, as here used, has been defined by any decision, nor that it has been held incumbent on a person giving notice of dishonour to treat all persons living within the limits of what was formerly

the twopenny post, as living in the same place.

(d) Code s. 49 (12) a; Scott v. Lifford, 9 East, 347; 1 Camp. 246; Smith v. Mullett, 2 Camp. 208; 11 R. R. 694; Marsh v. Maxwell, 2 Camp. 210, n.; 11 R. R. 696, n.; Jameson v. Swinton, 2 Camp. 374; 2 Taunt, 224: Hilton v. Fairclough, 2 Camp. 633; 12 R. R. 766: Haynes v. Birks, 3 Bos. & Pull. 599; Williams v. Smith, 2 B. & Ald. 500; 21 R. R. 373; Fowler v. Hendon, 4 Tyrw. 1002.

had notice himself on the Monday, put in the letter on Tuesday afternoon, and the defendant does not receive notice till the Wednesday. If a party has an entire day, he must send off his letter conveying the notice within posttime of that day. The plaintiff only wrote the letter to the defendant on the Tuesday. It might as well have continued in his writing-desk on the Tuesday night, as lie at the post-office (e). A person who puts the letter into the post on the day when it ought to be received, must show affirmatively that it was posted in time to be received on that day (f). The post-mark is not conclusive evidence of the time when a letter is posted" (g).

CHAPTER

XV.

When a party receives due notice of dishonour, he has When a party, the like time allowed for giving notice to the antecedent receiving parties (h).

It has been doubted (i) whether, seeing that the acceptor of an inland bill has, in the case of other debts, the whole of the day on which the bill falls due to pay it, notice of non-payment can be given till the day after. But it is now settled that notice may be given, at any time after demand on the day the bill becomes due. The other party," observes Lord Ellenborough, "cannot complain of the extraordinary diligence used to give him information” (k).

66

Notice of dishonour may be given on the same day, though there be no actual refusal, if the house where the bill is payable be shut up and no one be there (7).

Where a bill when dishonoured is in the hands of an agent, as a banker for instance, he may either give notice to the parties himself, or to his principal; in the latter case he is considered as a holder, and has the usual time to give notice to his principal, and the principal the like for giving notice to the antecedent parties (m). Upon the same principle, where the holder of a bill employed an attorney to give notice to an indorser, and the attorney wrote to another

(e) Smith v. Mullett, 2 Camp. 208: 11 R. R. 694.

(f) Fowler v. Hendon, 4 Tyrw. 1002.

(g) Stocken v. Collin, 7 M. & W. 515; 9 C. & P. 653.

(h) Code, s. 49 (14); Geill v. Jeremy, Moo. & M. 68.

(i) Leftley v. Mills, 4 T. R.

170; 2 R. R. 350.

(k) Code, s. 49 (12) ; Burbridge v. Manners, 3 Camp. 193; 13 R. R.

786; Ex parte Moline, 19 Ves.
216; Humev. Peploe, 8 East, 169;
9 R. R. 399; Hine v. Allely, 4
B. & Ad. 624; 1 N. & M. 433; 38
R. R. 330.

(1) Hine v. Allely, 4 B. & Ad.
624; 1 N. & M. 433; 38 R. R. 330.

(m) Code, s. 49 (13) ; Robson v. Bennett, 2 Taunt. 388; 11 R. R. 614; Langdale v. Trimmer, 15 East, 291 Bray v. Hadwen, 5 M. & Sel. 68; 17 R. R. 277.

notice, must transmit it.

May be given on the day of

dishonour.

[blocks in formation]

XV.

CHAPTER professional man, requesting him to ascertain the indorser's residence, and received an answer to his letter, conveying the desired information, on the 16th of the month, which information he communicated to his principal on the 17th, and on the 18th forwarded the letter containing the notice of dishonour, it was held sufficient. "If," says Lord Tenterden," the notice had been sent to the principal, he would have been bound to give notice on the next day, but it having been sent to the agent, he was not bound to give notice on the following day. A banker who holds a bill for a customer is not bound to give notice of dishonour on the day on which the bill is dishonoured. He has another day, and, upon the same principle, I think the attorney in this case was entitled, by law, to be allowed a day to consult his client" (n).

Notice through

branch banks.

Sundays, holidays, and

bank holidays, how reckoned.

Burden of proof.

Where a bill passes through several branch banks of the same establishment, each branch may be considered as a distinct holder entitled to receive and transmit notice as such (0).

Sunday, Christmas Day, Good Friday, bank holidays, a public thanksgiving or fast day, or any festival on which a man is forbidden by his religion to transact any secular affairs (for the law merchant respects the religion of different people), are not to be reckoned, in computing the time within which notice of dishonour should be given (p). If a man receive a letter containing notice of dishonour on such a day, he is not bound to open it, and will be considered as having received notice on the next day.

It lies on the plaintiff to show that notice was given in due time and before action brought. In an action by the indorsee against an indorser of a bill of exchange, a witness

(n) Firth v. Thrush, 8 B. & C. 387; 2 Man. & Ry, 359; Dans. & L. 151; 32 R. R. 421. See, however, In re Leeds Banking Company, 1 Law Rep., Eq. 1; 35 L. J., Ch. 33. But in this case the prior decisions were not brought under the notice of the ViceChancellor.

(0) Corlett v. Jones, Exch. 1842: Clode v. Bayley, 12 M. & W. 51. And so held, although the bill may have passed by delivery without indorse

ment. Ibid. See further as to branch banks, Woodland v. Fear, 7 E. & B. 519; Prince v. Oriental Bank, [1878] 3 Ap. Ca. 335.

(p) Code, s. 92; 39 & 40 Geo. 3 c. 42; 7 & 8 Geo. 4, c. 15; Lindo v. Unsworth, 2 Camp. 602; 12 R. R. 750; Tassell v. Lewis, 1 Ld. Raym. 743. See p. 213, and 34 Vict. c. 17, s. 2, APPENDIX. A religious difficulty would probably be a "special circumstance" under Code, s. 49 (12).

« PreviousContinue »