« PreviousContinue »
tion, and beyond doubt that is so in every case where the holder sends notice of dishonor; the sending or giving of the notice has no meaning in such a case unless it means that the holder looks to the party notified for payment. And so the courts do not require any such statement, though it is common to make one; nor perhaps is such statement necessary in notice by one, indorser, though not the holder, to another. It is enough certainly that the notice proceeds from the holder or from his agent. or from a notary employed by either."
§ 3. NOTICE, BY WHOM. Notice of dishonor should be given (1) by the holder or by his authorized agent, or (2) by an indorser legally bound to pay. It cannot be given, so as to have legal effect, by any other person; except, of course, on the death of the holder, by his personal representative. This is certainly the unwritten law merchant; and it probably is the written law also, though the written law uses the word "may.' The Statute declares that notice may be given by or on behalf of the bolder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right of reimbursement from the party to whom the notice is given.” But may' no doubt means must, and on behalf of,' an author. ized agent.
A stranger then, acting without due authority, cannot give valid notice of dishonor ; and the reason makes the rule sensible and just,
an unauthorized stranger cannot apNotice by stranger: by prise the indorser of what he is entitled to know, indorser. to wit, that the holder (or other party) will look
! to him for payment.
1 Bank of United States v. Carneal, 2 Peters, 543; Chanoine v. Fowler, 3 Wend. 173; Furze v. Sharwood, 2 Q. B. 388. In the latter case Lord Denman, C. J., said : Where notice has been given by another party (i. e. an. indorser) than the holder, there may be good sense in requiring that it shall be accompanied by a direct demand of payment or a statement that it will be required of the party addressed ; but in no case has the absence of such infor, mation been held to vitiate a notice in other respects complete, and which has come directly from the holder.' ? N. I. L. $ 97.
& Cases in note 1, supra.
For the same reason it was at one time held that an indorser who was not the holder could not give valid notice, in his own behalf; he could not inform the party notified that the holder would look to him for payment, unless he was authorized by the holder to act for him; and in that case it would not be the indorser's notice. But the contrary rule, arising no doubt from custom, and therefore justifiable, now prevails. For example: The defendant is drawer of a bill of exchange, of which the plaintiff is au indorser, having indorsed it in favor of W who had discounted and so purchased the bill. On discounting the bill W left it with the plaintiff's clerk, with instructions to him to obtain payment or give notice of dishonor. The clerk does give such notice to the defendant at the proper time, but he gives it, not in the name of W but in the name of the plaintiff.* The notice is good.?
But though an indorser whose liability has been fixed may give notice for his own benefit, to avail him in case he should afterwards be compelled to pay or should pay without suit - for an indorser loses none of his rights by so paying after his liability has been fixed; can the indorser give notice which may avail the holder or any intermediate party? Doubt has existed on this point also, because an indorser as such is not an agent for the holder or for the next or any later indorser.
Clearly the mere fact that an indorser has given notice to a prior indorser in due time will not of itself avail the holder. But if the notifying indorser bas authority from the Inurement of holder or other to give the notice, his act will be the notice. act of the holder; or if, not having authority from the holder or other, his own liability as indorser has been duly fixed, notice given by him, it is now understood, will avail the holder or intermediate indorser by what is well termed inurement. It is necessary, however, that the liability of the notifying in dorser should have been duly fixed (unless by reason of waiver it was already absolute); otherwise the indorser, being under no liability, is a mere stranger. For example: The defendant is indorser of a bill of exchange, subsequently indorsed by A to the plaintiff. The bill is dishonored at maturity, and A immediately gives notice to the defendant. The plaintiff has not given notice at all, and has not authorized A to give notice for him. The defendant is not liable; the notice by A not inuring to the plaintiff's benefit because A's liability has not been fixed."
1 The case therefore stands just as if the plaintiff indorser himself gave the notice.
2 Chapman v. Keane, 3 Ad. & E. 193, overruling Tindal v. Brown, 1 T. R. 167 ; 8. c. 2 T. R. 186, in which it had been held that notice should come from the holder or his agent, so as to apprise the party notified that he would be looked to for payment.
8 N. I. L $ 100: "Where notice is given by or on behalf of a party entitled 1 See Lysaght v. Bryant, 9 C. B. 46, the converse case, the notifying in. dorser having been duly notified by the holder and plaintiff. “It seems from the cases that the holder of a bill may avail himself of a notice given in due time by a prior indorser, provided he himself is in a condition to sue the party by whom the notice was given.' Id., Cresswell, J. See also Harrison v. Ruscoe, 15 Mees. & W. 231.
Now and then a case appears to give sanction to a doctrine that the acceptor of a bill, and, by parity of reasoning, the
maker of a note, may give notice available for the Notice by acceptor or
holder. But that, so far as it is to be accepted, can maker.
only be explained on the ground that the acceptor or maker was the authorized agent of the holder in the matter; otherwise the doctrine is unsound. There must be an agency, if the notice is not given by an indorser, at the time of giving the notice, and in the act of giving it."
to give notice, it inures for the benefit of the holder and all parties subsequent to the party to whom notice is given.' See also $$ 99, 100, of the Statute, in regard to notice by the holder inuring to others. The plaintiff insists that the notice given by the bank shall inure to his benefit. If the notice had been in time and valid, it would by law have inured to his benefit,' etc. Reese, J., in Simpson v. Turney, 5 Humph. 419. It should be observed that inurement is not agency.
2 Rosher v. Kieran, 4 Camp. 87; Shaw v. Croft, Chitty, Bills, 494; Douglas v. Bank, 97 Tenn. 133, that notice inay be given by any party.
8 Bayley, Bills, 254, 5th ed.; Thompson, Bills, 359, Wilson's ed. See Sebree Bank v. Moreland, 96 Ky. 151.
• See New York Co. v. Selma Sav. Bank, 51 Ala. 305.
$ 4. NOTICE, TO WHOM. Notice may be sent to the indorser or to his authorized agent." If two or
more have indorsed the paper jointly, notice must be sent to each of them, if by due diligence that can
Joint indorsers. be done ; ? unless there should be a relation of agency between them, in which case notice to the one who is agent will be sufficient to bind all. If there is no agency, notice to part of the number would not bind even them, since they are liable only with the rest. If the joint indorsers are partners, notice to one will suffice, as each partner represents the firm.
In the event of the death of an indorser known to the person to give notice, notice should be given to his personal representative if there be such, and the representative can Death of inwith reasonable diligence be found. If there be dorser. more than one representative, notice to one of them is notice to all. But even though there should be no personal representative of the deceased indorser, it is still the duty of the holder to exercise reasonable diligence towards informing those interested in his estate of the dishonor of the paper. It has accordingly been held that if notice is sent to the last place of residence or of business of the indorser, that is enough, prima facie, to fix the liability of his estate, since it may reasonably be assumed that the notice will reach those who are chiefly interested. So
I N. I. L. 8 104.
2 Id. § 107 ; State Bank v. Slaughter, 7 Blackf. 133 ; Beals v. Peck, 12 Barb. 245 ; Willis v. Green, 5 Hill, 232; Miser v. Trovinger, 7 Ohio St. 281. 8 V. I. L. $$ 106, 107.
Jamnagin v. Stratton, 95 Tenn. 619, 621, treating it so by the weight of authority. The joint contract doctrine of the common law has been thrust upou the law merchant ; but there is no escape from the conclusion. Ante, p. 5.
6 N. I. L. § 106 (“even though there has been a dissolution '); Gowan . Jackson, 20 Johns. 176 ; Bouldin v. Page, 24 Mo. 594.
6 N. I. L. § 105; Dodson v. Taylor, 56 N. J. 11. ? Beals v. Peck, 12 Barb. 245.
* Goodnow v. Warren, 122 Mass. 79. It seems that delay for the appointment of a personal representative of the deceased indorser would not be jut tifiable. Deininger v. Miller, 7 App. Div. N. Y. S. C. 409. • Id. ; Dodson v. Taylor, 56 N. J. 11; N. I. L. $ 105.
too notice may be sent to one named as executor in the will of an indorser, though the person named has not qualified ; for the fact that the indorser has named him as his executor is enough to indicate that he will take an interest in the estate, even though he should decline the office, and inform those directly concerned. But it would not satisfy the law to send notice to a person afterwards appointed administrator, not being a person to whom the estate would pass.?
Notice to the personal representative should, it seems, be sent addressed to him by name, if his name can be ascertained by reasonable diligence, and not to the executor' or 'administrator' or 'personal representatives of the indorser ; though notice so addressed will in any case be good if received in due time. On the death of a partner, in the case of partnership indorsement, notice should be given to the survivor, and also perhaps to the personal representative of the deceased.
If a party secondarily liable has been adjudged a bankrupt or an insolvent, or has made an assignment for his creditors, notice may be given either to the party himself or to his trustee or assignee.
$ 5. NOTICE, How. The law merchant requires that the indorser shall be notified of the dishonor with reasonable despatch ; and hence it cannot Reasonable
be, and is not indifferent to, methods of giving despatch. notice. That is to say, the presumably more direct and expeditious method must be adopted, unless it can be shown that the notice reached the indorser, notwithstanding the method
1 Shoenberger v. Lancaster Sav. Inst., 28 Penn. St. 459.
2 Goodnow v. Warren, 122 Mass. 79; Mathewson v. Strafford Bank, 45 N. H. 104.
8 Smalley v. Wright, 40 N. J. 471 ; Linderman v. Guldin, 34 Penn. St. 54. 4 Slocomb v. De Lizardi, 21 La. An. 355.
6 Cocke v. Bank of Tennessee, 6 Hump. 51. But see Dabney v. Stidger, 4 Smedes & M. 749. See Hubbard v. Matthews, 54 N. Y. 43. But see N. I. L. $ 105 : “Where the parties to be notified are partners, notice to any one partner is notice to the firm even though there has been a dissolution.' Does this include dissolution by the death of a partner ?
+ N. I. L. $ 108.