charge the guarantees for the payment of goods by a bill as will be necessary to support an action upon the bill itself, where by the law-merchant a demand upon and refusal by the acceptors must be proved, in order to charge any other party upon the bill; the party who enters into the guarantee ensures the solvency of his 8 East, 242, principal; so that if the latter be bankrupt or notoriously Warrington v. insolvent, it is nugatory to go through the ceremony of making a demand upon him.

Furbor.

1 Barnewall & Cresswell, 10, Holbrow v.

in

Wil

15 East, 275, Hopley v. Dufresne.

A bill was drawn for the indorser's accommodation; and on presentment after the banking hours, the answer was, no effects; a declaration being filed against the indorser, he applied for further time to pay the bill: this was held to be a waiver of the objection that there had been no due presentment, provided the party had been aware of the fact when he made his application for indulgence. The subject of notice, where a bill is dishonoured, is 7. Notice of very nearly connected with the presentment. Whether the acceptance or the payment fail, notice is equally necessary; and it will be now our object to explain at what time and to whom this notice should be given. The form of the notice should be attended to. An indorsee sued the indorser, and gave proof of notice that 1 Dowling & a bill drawn by the defendant had been dishonoured: Ryland, 3, Beauchamp . this form of notice was held insufficient. Cash.

dishonour.

ran.

The acceptor wrote a letter to the drawer, saying, that he had not been able to pay a bill: held that this 4 Campbell, 87, notice was sufficient, although not coming from the Rosher v. Kieholder; but Mr. Justice Bayley says, that it might Bayley, p. 208, perhaps have been on the ground that the acceptor wrote for the person giving the notice, and as his agent. The notice of non-payment must contain an intimation that payment has been refused by the acceptor, and the following letter for that purpose has been held insuf-ficient: "I am desired to apply to you for the payment

4

Barnewall & Cresswell, 339, Hartley v. Case.

"of [the sum], due to myself on a draft drawn, &c.; "which I hope you will on receipt discharge," &c. Here was no statement of the fact of dishonour, but a mere demand of payment. Notice of protest need not be left, in the case of a foreign bill, as well as notice of dishonour, at least if the party be in the country where the bill is protested. "If the party is abroad he

1 Maule & Sel-" cannot know of the fact of the bill's having been wyn, 289, by protested, except by having notice of the protest Lord Ellenboitself; but if he be at home, it is easy for him, by making inquiry, to ascertain that fact."

rough; Id. 288,"

Robins v. Gib

son.

4 Barnewall &
Alderson, 212,

Edwards v.
Dick.

wyn, 68, Bray v. Hadwen.

kin, 61, Geill v. Jeremy.

66

Although it is a measure of prudence to give notice of dishonour to all the parties whom it is intended to charge, it is no defence for the drawer, for instance, who is sued, and has had notice, to object that the acceptor has not had notice; it is quite sufficient if notice of the dishonour be given to the party against whom the action is brought, and he cannot allege the want of notice to a third person.

:

With respect to the time for giving notice, there have been many decisions; and as we have already seen that a very early presentment is in general necessary, so also is a very early notice, if the bill or note be not paid. 5 Maule & Sel- The next day's post, not the next possible post, is thé criterion of time; so that it will be sufficient to adverMoody & Mal- tise the parties on the bill by the post of the following day and if a party receive the notice on a Sunday, he has the whole of Monday to consider the bill, and need not give his notice until the Tuesday's post. And now, by 7 & 8 Geo. 4, c. 18, notice of the dishonour of bills payable on the day preceding Good Friday or Christmas-day, may be given on the day after those days; and where bills become due on any day appointed for public fast or thanksgiving, payment shall become due and may be noted the day preceding, and notice given after such fast or thanksgiving-day; and where

Bosanquet & Puller, 599, Haynes v. Birks.

such shall be appointed on a Monday, notice of dis-
honour of bills, payable on the preceding Saturday,
may be given on the Tuesday. If a bill be returned
to a banker, he is bound to give notice to his principal
that very day, if he can do so by using ordinary dili-
gence; but in general, by placing a bill in the hands
of a banker, the number of persons from whom notice
must pass is increased by one, because a banker need
not use greater diligence than if he himself were the 3
real holder. And it is worthy of attention, that notice
must immediately be given, without considering whether
you have received your notice earlier than usual or not.
An indorser paid a bill, which a subsequent indorser
had made his own by laches, and he sued a prior in-
dorser. Had successive notices been given by all the
parties on the bill, notice of dishonour could not have
reached the defendant at an earlier period; but the
plaintiff was not permitted to recover, for he paid the
bill in his own wrong.

The manner of giving the notice should be such as will distinctly apprize the person intended to be made liable of the dishonour. It may be given verbally, as by sending to a merchant's counting-house during the ordinary hours of business; and where a party went for two successive days to a counting-house, and waited some minutes each day, but no one was in the way, the inner door being locked, it was held, that neither a notice in writing need have been left, nor a letter written to the drawers, who lived a short distance from 1 Maule & Selthe place. And a notice to a man's attorney is not Crosse v. Smith. enough. Sending by the post seems to be regulated by this rule if you send a full direction, and prove that the letter has been put into the post-office, it will do, because there is a safe and reasonable presumption that it will reach its destination; but if you address to an individual in a large town, as to "Mr. H. Bristol,"

wyn, 545,

Ryan & Moody, you must go further, and show that it came to the

149, Water

v. Haynes.

hands of the person for whom it was intended. It is very different where the drawer places his address on the bill generally, as "Manchester;" in such a case Id. 249, Mann it is sufficient if the direction of the letter giving the notice tally with the drawer's address on the bill.

v. Moors.

3 Campbell, 262, Beveridge v. Burgis.

Gow, 81,
Browning v.
Kinnear.

Phipson v. Kneller.

Due diligence must be used to find out the residence of a party, where it is not known; and such endeavours, if unsuccessful, will excuse the want of notice. But it is not enough to inquire at the place where the bill was payable. In a case of this kind the plaintiff was nonsuited; and by Lord Ellenborough: "Inquiries might have been made of the other persons whose "names appeared upon the bill; and application might "have been made to persons of the same name with "the defendant, whose addresses are set down in the directory."

66

In another case the plaintiff applied to the last indorser to know where the drawer lived, and he was then referred to the last indorser but one, who was not at home; the plaintiff called again the next morning, and got the information: the jury thought that reasonable diligence had been used, and the Judge was of the same opinion.

Where the drawer refused to give his own address, 1 Starkie, 116, but said he could call in a few days to inquire whether the bill had been paid or not, it was considered that he dispensed with notice of dishonour by doing so. If there be no essential delay, the notice may be sent by a private hand, though this course cannot be recommended; though it is no defence to say, that if the notice had been sent by the mail, it would have arrived

Holt's N. P.
Cases, 476,
Bancroft v.

In the case of a foreign bill, notice should be forwarded by the first regular ship bound to the destined place; and it is no defence that the holders might have

written other letters by another ship bound elsewhere, but which by accident arrived sooner at the place to which the notice was sent than the regular vessel.

A bill being dishonoured, the plaintiffs told the drawers they would hold the bill until the end of the week, as

2 Henry Blackstone, 565,

Muilman v.

D'Eguino.

they had reason to think that money for the purpose 16 East, 105, of paying would be advanced to the acceptor in a few Foster v. Jurdidays. Mr. Baron Wood thought that a second notice son. should have been given at the end of the week; but the Court said, that notice being given, all that the plaintiffs did afterwards was, in point of law, as agents for the drawers, the defendants; if by their negligence as such agents the defendants were injured, there might have been an action on that ground; but as far as regarded the notice of dishonour, the plaintiffs had complied with the law.

whom.

Whoever may be injured by a want of notice is Notice, to clearly entitled to it, provided he be entitled to demand payment of the bill or note; and therefore, in general, the drawer, and every indorser of such an instrument, should be advertised of the proper presentment, and of the failure of payment. And so also should one who, though not a party to the bill or note, may be collaterally interested in it, as a surety; for if the drawer or acceptor were called upon for the money, the surety might be safe; so that where the necessary steps to obtain payment were neglected, the guarantee was held to be discharged. But there is a distinction between persons not parties, and such as are parties to the instrument, in cases where the debtor is not in a condition to pay at the time of the bill or note becoming due. On an action brought for goods sold, the defence was that the plaintiff, the drawer of a bill against a debtor of the defendant, had given no notice to the defendant 5 Maule & Selthat the bill had been dishonoured; in fact the drawer yard v. Bowes. became a bankrupt in the week after the bill became

2

Taunton, 206, Philips v. Astling.

wyn, 62, Swin