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Where one person was a member of two partnerships, one of which signed, and the other of which endorsed a note, it was held that a presentment for payment was still necessary in order to charge the endorsers. (a) (b)]

Sect. 2.-Notice (69) must be given of a failure in the attempt to procure an acceptance, though the application for such acceptance might have been unnecessary; otherwise the person guilty of the neglect may loose his remedy upon the bill.

But such neglect will be no bar to a subsequent endorsee, if he took the bill before it became due, and gave value for it, and was ignorant that acceptance had been refused. (70)

[(a) Swift C. J. said, "It is true one of the defendants must, in legal consideration, have known that the note was not paid; but he equally well knew, that the note, when it became due, had not been presented to the makers, and payment demanded; he knew the fact that exonerated the defendants from all liability on their endorsement; and it would be strange logic to say that this knowledge rendered the defendants liable." Dwight v. Scovil, 2 Conn. R. 654.]

[(b) In Massachusetts where the maker of a note died, and an adıninistrator was appointed before the note became payable, the day of payment falling within a year from the time of his appointment, it was held that the holder might maintain an action against an endorser without proving a demand upon the administrator at the maturity of the note. This decision was on the ground that in Massachusetts the administrator is not obliged to pay any debt of the deceased, except such as are particularly privileged, within a year from the time of his appointment. Hale v. Burr, 12 Mass. R. 86.]

(69) Vide Blesard v. Hirst, and Goodall v. Dolley, post.

(70) O'Keefe v. Dunn, 6 Taunt. 305. (1815. Trin.) A bill at one month after date was drawn by defendants, payable to Sinclair or order: Sinclair presented it for acceptance, and acceptance was refused, but no notice was given to defendants: Sinclair endorsed the bill to plaintiff for a valuable consideration, before the month from the date expired, but plaintiff had no notice of the prior refusal to accept: when the bill became due it was duly presented for payment, payment was refused, and notice thereof given to defendants. Action inde: defendants pleaded the presentment for acceptance by Sinclair, the refusal and want of notice thereof; plaintiff traversed the presentment and refusal, and after verdict thereon for defendants, rule nisi to enter judgment for plaintiff non obstante veredicto: after cause shewn, and time to consider, Gibbs C. J., Heath, and Dallas, against Chambre J., were of opinion that plaintiff was entitled to judgment; that the bill did not necessarily require presentment for acceptance; that defendants therefore had not, by the nature of the instrument, stipulated for such presentment; but that, on the contrary, they had, by its form, agreed that it

So if the drawee offer a partial or conditional acceptance, or an acceptance at an extended period, or if any other person offer an absolute one, though the holder may be willing to acquiesce in such acceptance, he must (71) give notice.

In that case, however, if he wishes to have the power of availing himself of it, he should mention in his notice the acceptance offered; for a notice generally of non-acceptance shews (72) he did not acquiesce in such offer.

A neglect to give notice, upon the refusal of any thing more than a conditional acceptance, is done away by the completion of those conditions before the bill becomes payable; and a neglect, upon the refusal of any thing more than a partial acceptance, discharges the persons entitled to it only from their responsibility as to the payment of the residue.

[Where the holder of a bill presented it for acceptance, and the drawee being out, was asked by his clerk to leave. it, but the holder of the bill had it protested, but did not give immediate notice to the parties to the bill, it was held that they were discharged, notwithstanding the bill was accepted on the next day by the drawee, and was afterwards protested for non-payment. (a)]

should be negotiable till the period for payment arrived; that an innocent endorsee therefore might be deluded, and the negotiation of such bills defeated, if his remedy were to be destroyed by a fact of which he had no notice, and as to which there was nothing to raise a suspicion. Rule absolute. And on error, the judgment was affirmed in the king's bench. Ante, Dunn v. O'Keefe, p. 88.

(71) Vide Mar. 4th ed. p. 21. Beawes, § 221. 2d. ed. 445. See also Lenox v. Leverett, 10 Mass. R. 1.]

(72) Vide Sproat v. Matthews, ante, p. 113. note (47).

[(a) A bill drawn on Stevenson, was presented for acceptance September 30th at his counting room. Stevenson being out, his clerk proposed that the bill should be left, and said that Stevenson would accept it on his return. The bill was left; but Mitchell, the holder, had it immediately protested for non-acceptance. The next day Stevenson told a person sent by Mitchell, that he would accept the bill, and send it to Mitchell in the course of the day. No notice of the protest for nonacceptance was sent to the drawer, until the bill was protested for nonpayment. In an action against the drawer, the court held that he was discharged. Story J. said, that the payee was not bound to consider what passed between him and Stevenson's clerk as a non-acceptance; but that he might properly have waited till the next day, a reasonable

The notice must come from the (73) holder, or some party entitled to call for payment or reimbursement; and though there is no prescribed form for it, ought to import that (74)

time, to ascertain the intentions of the drawee. "But he elected to consider the bill as dishonored on the 30th of September, and protested it accordingly for non-acceptance. And the question now is, whether as to all the other parties to the bill, he is not bound by that act; I am very clear that he is. When a bill is once dishonored, the holder is bound to give notice by the next practicable mail, to the parties whom he means to charge. No such notice was given in this case. But it is said that on the 1st of October, and before the mail from Boston was closed on that day, the drawee accepted the bill, and thereby notice became unnecessary. Assuming that the evidence clearly shows an acceptance, still where once a bill is dishonored, the right of the other parties to notice immediately and absolutely attaches, and no subsequent acts between the holder and drawee can vary that right." Mitchell v. Degrand, 1 Mason, 176.]

(73) Ex parte Barclay, 7 Ves. 597. Barclay was endorsee and holder of two bills drawn by Kemp upon Dearlow, and endorsed by Clay to Barclay. These bills were dishonored, of which Clay gave notice to Kemp; and on petition by Barclay to be allowed to prove these bills under a commission of bankruptcy issued against Kemp, one question was, whether this notice from Clay, and not from Barclay the holder, were sufficient. And Lord Eldon C. J., after referring to Tindal v. Brown, held that the notice ought to have come from the holder, and dismissed the petition. See Jameson v. Swinton, post.

[See also Williams v. Matthews, 3 Cowen, 252.]

(74) Tindal v. Brown, 1 Term Rep. 167. 186. A note which became due on the 5th of October, was presented at ten in the morning, and the maker not being at home, word was left for him where it lay; the holder sent again on the 6th, when the maker promised to take it up within the banking hours, which were from nine to four; on the 7th, the holder sent again to the maker, and the note not being paid, gave notice to the defendant, who was an endorser, but the defendant said he had made it his own; the maker had told defendant on the 6th, that he could not pay it, and desired the defendant would: all the parties lived at Bristol. The jury found for the plaintiff; but upon a rule to shew cause why there should not be a new trial, and cause shewn, the court granted a new trial. Lord Mansfield said, "What is reasonable notice is a question partly of fact, and partly of law: it may depend in some measure on facts; such as the distance at which the parties live, the course of the post, &c.; but wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to for the sake of certainty. Per Willes J. "New credit was given to the maker, and I cannot consider notice from the maker equal to notice from the holder." Ashhurst J. "The reasonableness ought to be settled as a question of law; the next day at the most is as long as is necessary in a case like this; if the parties live at a small distance, this is a sufficient time; if at a greater, they should write by the next post. Notice means something more than knowledge, because it is competent to the holder to give credit to the maker: it is not enough to say that the maker does not intend to pay, but that the holder does not intend to give credit; the party ought to know whether the holder

the person to whom it is given is considered liable, and that payment from him is expected. (a)

It has indeed been held, that notice from the acceptor to the drawer that he had not been able to pay it, and that it was then in plaintiff's hands, was sufficient; but that might,

intends to give credit to the maker, or to resort to him." Per Buller J. "When the post goes out, is a matter of fact; when that is established, it is a matter of law, what notice is reasonable; as to giving time, the holder does it at his peril, and that is enough to decide the case; the purpose of giving notice is to let the party know that he is looked to for payment, that he may have his remedy over by an early application; if it shews that the holder has given time, it discharges the party: it ought to purport that the holder looks to him for payment, and a notice from another person cannot be sufficient; it must come from the holder." Upon the second trial there was contradictory evidence whether the notice from the maker was on the sixth or the seventh, and the jury found again for the plaintiff; but the court said it was a verdict against law, and granted another new trial.

[(a) Where the maker of a note was absent from the State at the time the note fell due, and a demand made at his dwelling house; it was held that an endorser was chargeable although the notice to him did not state the absence of the maker. Sanger v. Stimpson, 8 Mass. R. 260.

The notice to an endorser, which was sent on the last day of grace, January sixth, called the note “Jotham Cushing's note;" the name of the maker being in fact Jotham Cushman; and also said that the note became due January third. In an action against the endorser the judge (Parker) directed the jury to find for the plaintiff, if they believed that the defendant must from the notice have necessarily known what note was intended; which they accordingly did. And the whole court considered the direction correct, and judgment on the verdict. Smith v. Whiting, 12 Mass. R. 6.

A notice sent to an endorser by a notary public, who had presented the note for payment, did not state who was the holder of the note, nor at whose request the notice was sent. The notice was held sufficient. Parker C. J. giving the opinion of the court, said, "No particular form is necessary; the great object of the notice is to put the party affected by it on his guard; and if he is informed of the two principal facts, that the note is dishonored, and that the holder looks to him for payment, he may easily acquire all other knowledge necessary for his safety." Shed v. Brett, 1 Pick. 401.

The maker of a note paid a part of the amount on the day it became due, a general notice to the endorsers not stating this part payment, was held sufficient to charge them. James v. Badger, 1 Johns. Cas. 131.

A note was made for $1216.50, at the bottom of the note were the figures $1216.52. The notice of non-payment sent to the endorser described the note as given for the latter sum. In an action against the endorser the judge left it to the jury, whether the note produced, and the one described and intended by the notice were the same. Verdict for the plaintiff. A motion for a new trial was refused. The court said, “The law does not prescribe any form of notice to an endorser. It is not perhaps requisite to specify the amount of the note. The notice was sufficient to put the defendant on inquiry." Reedy v. Seixas, 2 Johns. Cas. 337.]

perhaps, have been on the ground that the acceptor wrote for the plaintiff, and as his agent. (75)

[But notice to the drawer, from a drawee who refuses acceptance, is not sufficient. (a)]

A notice from the holder or any other party will enure to the benefit of every other party who stands between the person giving the notice and the person to whom it is given. (76)

Therefore a notice from the last endorsee to the drawer, will operate as a notice from each endorser.

It is nevertheless prudent in each party who receives a notice, to give immediate notice to those parties against whom he may have a right to claim; for the holder may have omitted notice to some of them, and that will be no protection (77); or there may be difficulties in proving such notice.

Though a holder, or any other party, gives no notice but to the person of whom he took the bill, yet if notice is communicated without laches to the prior parties, he may avail himself of such communication, and sue any of such prior

(75) Rosher v. Kieran, 4 Campb. 87. Endorsees of bill against drawer, and the question was, whether defendant had had due notice of the bill's dishonor? It was proved, that, on the day the bill became due, the acceptor wrote to defendant that he had not been able to pay the bill, and that it was in plaintiff's hands: Lord Ellenborough held this sufficient, and verdict for plaintiff. See Stewart v. Kennet, 2 Campb. 177. [(a) See Stanton v. Blossom, post p. 164]

(76) Wilson v. Swabey, 1 Stark. 34. In an action by endorsee of a bill against the drawer, it appeared that notice was communicated to Lewis, an endorser, the day after the bill became due, and that Lewis gave defendant notice the next day it was objected, that plaintiff had not given defendant notice: but Lord Ellenborough said, notice from any person who was party to the bill was sufficient, and plaintiff had a verdict.

:

[Stafford v. Yates, 18 Johns. R. 327 is to the same effect.]

(77) Edwards v. Dick, 4 Barnew. 212. In an action by endorsee against drawer, it appeared that the acceptor made the bill payable at a particular place, and it did not appear that plaintiff had given the acceptor notice of its dishonor: but on motion for nonsuit on that ground, the court held it sufficient in order to warrant a suit against defendant, that notice was given to him; he could not object that a third person had not had notice: if he was entitled to a remedy over against the acceptor, he should have given him notice. Rule refused. [See Morgan v. Woodworth, 3 Johns. Cas. 89.]

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