notice

NOTE.-In New York it has been held that notice duly sent by For whose the holder does not enure for the benefit of a prior indorser, unless benefit it reaches the party to whom it is sent, but the circumstances of the enures. case were somewhat special. See Art. 191 for a case where an indorser might be liable on the bill, and yet not able to avail himself of a notice of dishonour given by another, or to give one himself.

Art. 195. Notice of dishonour may be given by or Notice of dishonour, on behalf of the holder as soon as the bill has been when to be given. dishonoured, and it must be given within a reasonable time after dishonour.3

Explanation 1.-Reasonable time is question of law and fact."

a mixed

Explanation 2.--In determining what is a reasonable time, non-business days must be excluded."

Explanation 3.-When the person giving notice and the party to whom notice is to be given live in the same place, the notice must, in the absence of special circumstances, be sent off in time to reach such party on the day after the dishonour of the bill."

Explanation 4.--When the person giving notice and the party to whom notice is to be given live in different places, the notice must, in the absence of special circumstances, be sent off on the day after the dishonour of the bill, if there be a post at a reasonable hour on that day; and if there be no

1 Beale v. Parish (1859), 20 New York R. 407.

2 Burbridge v. Manners (1812), 3 Camp. 193; Ex parte Molines (1812), 1 Rose 303. Cf. Art. 171.

3 Hirschfield v. Smith (1866), 1 L. R. C. P. at 351; Gladwell v. Turner (1870),

5 L. R. Ex. at 61.

+

Id.; Cf. Arts. 150, 162.

39 & 40 Geo. 3, c. 42; 7 & 8 Geo. 4, c. 15; Bank Holidays Act, 1871; 34 & 35 Vict. c. 17, § 2; Cf. Lindo v. Unsworth (1811), 2 Camp. 601, as to a Jewish sacred festival; Wright v. Shawcross (1819), cited 2 B. & Ald. at 501, notice received on Sunday.

6 Smith v. Mullet (1809), 2 Camp. 208; Hilton v. Fairclough (1811), 2 Camp. 632; Cf. Gladwill v. Turner (1870), 5 L. R. Ex. at 61.

7 Williams v. Smith (1819), 2 B. & Ald. at 500; and Wright v. Shawcross, cited at 501, n.

Ꮮ

Notice of such post on that day, then by the next post there

dishonour,

when to be after.1

given.

Right of party

notice to

NOTE.-Under French Code, Art. 165, the holder of a dishonoured bill must give notice of protest and commence proceedings within fifteen days of the date of protest, if the drawer or indorser sought to be charged live within five myriametres. Extra time is given for extra distance. Thus, under Art. 166, as modified by the law of May 3, 1862, when a bill is payable in England the holder has one month for giving notice of protest and commencing proceedings against a French drawer or indorser. The notice of protest and the summons (assignation en justice) are usually comprised in one document, Nouguier, §§ 1088-1089. Under German Exchange Law, Art. 45, the holder must send off written notice of protest within two days after protest.

Art. 196. A party who receives due notice of the receiving dishonour of a bill has, after the receipt of such notice, transfer the same time for giving notice to antecedent parties reasonable that the original holder has after the dishonour of the Cf. Art. 195.

it within

time.

bill.

ILLUSTRATION.

C., the indorser of a bill held by D., receives notice of dishonour on Sunday morning. Sunday being a dies non, it is sufficient if C. send off notice to the drawer on Tuesday.3

Explanation 1.-When a bill is in the hands of an agent, the agent has the same time for giving notice to his principal that he would have if he were an independent holder and his principal an indorser liable to him.

ILLUSTRATIONS.

1. A bill payable in London is indorsed in blank by the holder, and deposited with a country banker for collection. The country banker's London agent presents it for payment and gives him due notice of its dishonour. The country banker on the day after the

1 Hawkes v. Salter (1828), 4 Bing. 715; Carter v. Burley (1838), 9 New Hamp. R. 558 at 570; Cf. Geill v. Jeremy (1827), M. & M. 61.

Bray v. Hadwen (1816), 5 M. & S. 68; Cf. Rowe v. Tipper (1853), 22 L. J. C. P. at 137; German Exchange Law, Art. 45; French Code, Art. 167 and 169.

3 Wright v. Shawcross (1819), cited 2 B. & Ald. at 501.

receipt of such notice gives notice to his customer, who in turn Right of gives similar notice to his indorser. This indorser has received due party re

notice.1

ceiving notice

to transfer

time.

2. C. indorses a bill to the Liverpool branch of the D. Bank. it within The Liverpool branch sends it to the Manchester branch, and the reasonable Manchester branch indorses it to the head office in London, who present it for payment. The head office sends notice of dishonour to the Manchester branch, the Manchester branch sends notice to the Liverpool branch, who give notice to C. Each branch as regards time is to be considered a distinct party."

3. X. pays a bill suprà protest for the honour of C., an indorser, who resides at Bruges, and the same day posts the bill to C. C. by return of post sends the bill back to X., who at once gives notice of dishonour to the drawer. Although six days have elapsed since the dishonour, the notice is in time, and X. can sue the drawer.3

NOTE. See contra, Ex parte Prange (1865),* where the authorities were not cited.

Explanation 2.--When a bill is presented for payment through the post-office, the drawee or acceptor is deemed to be the agent of the holder for the purpose of giving notice of dishonour," and has the same time for giving notice that the holder would have if he himself presented it."

dishonour

Art. 197. The holder or other person entitled to Notice of give notice of dishonour must give notice to a remote to remote party within the same limits of time that would parties. suffice in the case of an immediate party."

ILLUSTRATION.

A dishonoured bill drawn by A. is held by H., the tenth indor

1 Bray v. Hadwen (1816), 5 M. & S. 68; Cf. Firth v. Thrush (1828), 8 B. & C. 387.

Clode v. Bayley (1843), 12 M. & W. 51, approved Prince v. Oriental Bank (1878), 3 L. R. Ap. Ca. at 332, P. C.

3 Goodall v. Polhill (1845), 14 L. J. C. P. 146.

4 1 L. R. Eq. 1.

5 Cf. Bailey v. Bodenham (1864), 33 L. J. C. P. at 255, Erle, J.

• Prideaux v. Criddle (1869), 4 L. R. Q. B. at 461; Cf. Heywood v. Pickering,

(1874), 9 L. R. Q. B. 428. Cf. Art. 192, Expl. 1.

7 Rowe v. Tipper (1853), 22 L. J. C. P. 135; Cf. Nouguier, § 1096.

dishonour

Notice of see. H. has no longer time to give notice to A. than he has to give notice to his immediate indorser-e.g., if A., the drawer, and H. live in the same town, H. must give notice to A. on the day following the dishonour of the bill.

to remote parties.

Notice of dishonour,

to be given.

NOTE. If the holder does not give notice to a remote party in due time, he cannot rely on his own notice; but if he has given due notice to his immediate indorser, his rights may yet be saved by a notice given by such indorser; Cf Art. 194.

Art. 198. Notice of dishonour must be given to the drawer or indorser intended to be charged, or to some person authorized to receive notice on his behalf.

Explanation 1.-It is the duty of a drawer or indorser, if he be absent from his place of business or residence, to see that there is some person there to receive notice on his behalf.1

ILLUSTRATIONS.

1. C. is the indorser of a bill which is dishonoured. Verbal notice given to his solicitor is not sufficient.

2. X., who has authority to indorse for C., indorses a bill in C.'s name. Notice of dishonour given to X. is (perhaps) sufficient.3

3. The drawer of a bill is a non-trader. Verbal notice of dishonour given to his wife at his house, in his absence, is sufficient."

4. The indorser of a bill is a merchant. Notice of dishonour, verbal or written, given to or left with a clerk at his countinghouse is sufficient."

5. C. indorses a bill "in need at Messrs. X. & Co." Notice of dishonour given to X. & Co. is not sufficient to charge C.

Explanation 2.-When the drawer or indorser of a bill becomes bankrupt, notice of dishonour may (probably) be given either to the bankrupt or to his trustee."

1 Cf. Allen v. Edmundson (1848), 2 Exch. at 723; Turner v. Leach (1818), cited Chitty, 10 ed., p. 333. Art. 200, Cl. (€).

2 Crosse v. Smith (1813), 2 M. & S. at 553.

3 Cf. Firth v. Thrush (1828), 8 B. & C. at 391

Housego v. Cowne (1837), 2 M. & W. 348; Cf. Wharton v. Wright (1844),

1 C. & K. 585.

5 Allen v. Edmundson (1848), 2 Exch. at 724; Viale v. Michael (1874), 30 L. T. N. S. 463.

Ex parte Prange (1865), 1 L. R. Eq. at 5.

7 Ex parte Baker (1877), 4 L. R. Ch. D. 795; Cf. Rhode ▼. Proctor (1825), 4 B. & C. 517.

NOTE.-All that has been actually decided is that notice given to Notice of the bankrupt in ignorance that the trustee had been appointed is dishonour, It is a question of reasonable diligence.1

sufficient.

to whom to be

Explanation 3.-If the drawer or indorser of a bill given. be dead, notice of dishonour must be given to his personal representatives, when, with the exercise of reasonable diligence, they can be discovered.2

NOTE.-In New York it is held that notice addressed and sent to an indorser, in ignorance of his death, is sufficient."

Explanation 4.--When there are two or more joint drawers or indorsers who are not partners, notice of dishonour must (probably) be given to them all.*

dishonour.

Art. 199. Notice of dishonour may be given (a) in Notice of writing, or (b) by personal communication.

5

notice may be given in any terms which

(1.) Sufficiently identify the bill."

The requisites

(2.) Intimate that the bill has been dishonoured' by non-acceptance or non-payment, and that the party to whom notice is given is held liable.R

Explanation 1.-A misdescription of the bill does not vitiate a notice unless the party to whom notice is given is in fact misled thereby.

ILLUSTRATION.

A notice to the drawer which describes the bill as payable at the

1 Ex parte Johnston (1834), 1 Mon. & Ayr. at 628.

2 Byles, p. 289; Massachussets Bank v. Oliver (1852), 64 Mass. R. 557.

3 Merchants Bank v. Birch (1819), 17 Johns. R. 24.

4 Willis v. Green, (1843), 5 Hill 232. New York; Cf. Hubbard v. Matthews (1873), 54 New York R. 43.

5 Caunt v. Thompson (1849), 18 L. J. C. P. at 127.

6 Shelton v. Braithwaite (1841), 7 M. & W. 436; Gates v. Beecher (1875), 60 New York R. at 527.

7 See Arts. 159 and 170, defining "dishonour."

8 Allen v. Edmundson (1848), 2 Exch. at 723, Parke, B.; Metcalfe v. Richardson (1852), 11 C. B. at 1014, Williams, J.; Everard v. Watson (1853), 1 E. & B. at 804, Lord Campbell.

in form.