If the party be dead, notice should be given to his personal representatives.(u)1

Where a bill is accepted payable at a particular place, it is not necessary, in an action against the acceptor, to have given him notice of the dishonor. "Bills of exchange," says Abbott, C. J., "of late years have been made payable *by the acceptor, either

[*295] at the houses of his friends or agents, they being expressly named in the acceptance, or at banking houses, or at houses merely described by their number in a certain street. It is most convenient that the same rule should be laid down as applicable to all these cases. The most plain and simple rule to lay down is this: that the effect of an acceptance in any of these forms is a substitution of the house, banker, or other person therein mentioned, for the house or residence of the acceptor, and, consequently, that the presentment at the house or to the party named in the acceptance is equivalent to presentment at the house of the acceptor. This rule

(u) I am aware of no actual English decision to this effect. But it has been so decided in America. And if there be no personal representatives, a notice sent to the residence of the deceased party's family is sufficient: Merchants' Bank v. Birch, 17 John's Rep. 25; Bayley, American ed. 418.

It has also been held in America that the administrator of an indorser, appointed before the maturity of the note, who has given due notice of his appointment, is entitled to notice. A notice addressed through the mail in due time to the "legal representative" of A., deceased, the indorser, to the last residence of the deceased, is sufficient, though it does not appear that the administrator or executor ever received it: see 6th American ed. of Byles on Bills, p. 440.

1 The administrator of an indorser appointed before the maturity of the note, who has given due notice of his appointment, is entitled to notice: Oriental Bank v. Blake, 22 Pick. 206. See as to notice where the indorser is dead, Planters' Bank v. White, 2 Humphrey 112; Cayuga Bank v. Bennett, 5 Hill 236; Barnes v. Reynolds, 4 Howard (Miss.) 114. A notice addressed through mail in due time to the "legal representative" of A., deceased, the indorser, to the last residence of the deceased, is sufficient, though it does not appear that the administrator or executor ever received it: Pillow v. Hardeman, 3 Humphrey 538. Notice to an executor before probate is sufficient: Shoenberger v. Lancaster Savings Institution, 4 Casey 459. The death of the maker, and the fact that the indorser is his executor, does not dispense with the necessity of notice. As executor he is not personally bound, and the purpose of demand and notice is to make him so, and to warn him of the fact that the holder looks to him individually: Groth v. Gyger et al., 7 Casey

will, I think, be equally applicable to the case of every acceptance, and will be convenient and advantageous to the public.(x) A fortiori, it is unnecessary to have given the acceptor such a notice in any action against the drawer.(y)

Where partners are jointly liable on the bill, notice to one is sufficient.(z)1

If a man, not a party to a bill, assign without indorsement, he is not entitled to notice of dishonor. (a)

(x) Treacher v. Hinton, 4 B. & Ald. 413 (6 E. C. L. R.); Smith v. Thatcher, 4 B. & Ald. 200 (6 E. C. L. R.); Pearse v. Pemberthy, 3 Camp. 261.

(y) Edwards v. Dick, 4 B. & Ald. 212 (6 E. C. L. R.).

(z) Porthouse v. Parker, 1 Camp. 83; Bignold v. Waterhouse, 1 M. & Sel. 259. But it is conceived that notice to a private member of a joint stock banking company would not suffice. See Powles v. Page, 3 C. B. 16 (54 E. C. L. R.); In re Carew, 31 Beav. 39.

It is held in America that joint owners of a note, who jointly indorse the same, do not thereby constitute themselves partners quoad hoc, so that notice of the dishonor of a bill to one will charge both. Both must have notice.

Where a partnership indorses a note, notice of its dishonor given to a surviving partner is sufficient to bind the legal representatives of the deceased partner, although the holder knew of the decease of such partner before the maturity of the note. See Byles on Bills, 6th American ed. p. 442.

Mr. Justice Story doubts whether, in the case of joint parties not partners, notice to one only would bind even him: Story on Promissory Notes, p. 36. (a) Van Wart v. Woolley, 3 B. & C. 439 (10 E. C. L. R.) ; 5 D. & R. 374; M. & M. 520, s. c.; Swinyard v. Bowes, 5 M. & Sel. 62. But a notice has

1 Joint owners of a note, who jointly indorse the same, do not thereby constitute themselves partners quoad hoc, so that notice of the dishonor of a bill to one will charge both. Both must have notice: Sayer v. Frick, 7 Watts & Serg. 383; Wills v. Green, 5 Hill 232. But where they are partners notice to one is sufficient: Bouldin v. Page, 24 Missouri 594; Miser v. Trovinger, 7 Ohio (N. S.) 281. Where a partnership indorses a note, notice of its dishonor given to a surviving partner is sufficient to hold the legal representatives of the deceased partner, although the holder knew of the decease of such partner before the maturity of the note: Dabney v. Stidger, 4 Smedes & Marshall 749; Cocke v. Bank, 6 Humph. 51. See People's Bank v. Keech, 26 Md. 521. The rule that service of notice upon one member of a firm is sufficient does not hold where a notice is served on a partner living elsewhere, while none is served on a partner residing in the town where the demand is made: Hume v. Watt, 5 Kansas 34.

2 A party who purchases a bill and transmits it on account of goods ordered by him without indorsing it is not entitled to notice of its dishonor: Van Wart v. Smith, 1 Wendell 219.

And, as a general rule, a man transferring by delivery [*296] *without indorsement a bill or note payable to bearer is not

entitled to notice.

We have already seen(b) that a transferror by mere delivery of a negotiable instrument, made or become payable to bearer, is not in general liable, either on the instrument or on the consideration. He therefore (unless in some excepted cases) requires no notice of dishonor.

But we have also seen that if the bill or note payable to bearer were delivered on account of a pre-existing debt, that delivery is not prima facie a sale of the bill or note. On dishonor, therefore, of the bill or note, the liability of the transferror for the original debt revives. But in such a case the transferree will have made the bill or note his own, unless he have given due notice of dishonor.

And we have further seen that as there may be an express contract that the instrument shall not amount to payment if dishonored, so there are many circumstances from which a jury may infer that the intention and understood contract of the parties was that the instrument was not to be payment if dishonored.(e)

It is conceived that in all cases where in consequence of the dishonor of bills or notes, made or become payable to bearer, a remedy

been held to be in time, although an allowance be made for its transmission through a party not indorsing. See Clode v. Bayley, 12 M. & W. 51.

And it has been held in America that a party who purchases a bill and transmits it on account of goods ordered by him without indorsing it is not entitled to notice of its dishonor. See 6th American ed. of Byles on Bills, p. 442.

(b) Ante, chapter on TRANSFER.

(c) "If a person," says Abbott, C. J., "deliver a bill to another, without indorsing his own name upon it, he does not subject himself to the obliga tions of the law merchant; he cannot be sued on the bill, either by the per son to whom he delivers it or by any other. And as he does not subject himself to the obligations, we think he is not entitled to the advantages. If the holder of a bill sell it without his own indorsement, he is, generally speaking, liable to no action in respect of the bill. If he deliver it without his indorsement upon any other consideration, antecedent or concomitant, the nature of the transaction and all circumstances regarding the bill must be inquired into in order to ascertain whether he is subject to any responsi bility. If the bill be delivered and received as an absolute discharge, he will not be liable; if otherwise, he may be. The mere fact of receiving such a bill does not show it was received in discharge:" Van Wart v. Woolley, 3 B. & C. 445 (10 E. C. L. R.).

arises on the consideration, the transferror is entitled to notice of dishonor.(d)

A man merely guaranteeing the payment of a bill, but not a party to it, is not discharged by the neglect of the holder

*to give him notice of dishonor unless he has been actually [*297] prejudiced by such neglect.(e)1

And though a man indorse a bill, yet if he also give a bond conditioned for its payment, absence of due notice of dishonor is no plea to an action on the bond.(f)

Let us now inquire, seventhly, what are the consequences of neglect to give due notice. The law presumes that if the drawer has not had due notice, he is injured, because otherwise he might have immediately withdrawn his effects from the hands of the drawee, and that if the indorser has not had timely notice, the remedy against the parties liable to him is rendered more precarious. consequence, therefore, of neglect of notice is that the party to whom it should have been given is discharged from all liability, whether on the bill or on the consideration for which the bill was paid. (g)2

The

(d) There is great confusion in the cases on this subject, but the authorities are canvassed in the judgment of Mr. Justice Coleridge in Turner v. Stones, I Dowl. & L. 131. That learned judge says, "I think the obligation on the holder is to give notice promptly to the party from whom he receives the note."

(e) Warrington v. Furbor, 8 East 242; 6 Esp. 89, s. c. ; 'Phillips v. Asting, 2 Taunt. 206; Swinyard v. Bowes, 5 M. & S. 62; Holbrow v. Wilkins, 1 B. & C. 10 (8 E. C. L. R.) ; 2 D. & Ry. 59, s. c.; Van Wart v. Woolley, 3 B. & C. 439 (10 E. C. L. R.); 5 Dowl. & R. 374; M. & M. 220, s. c.; Walton v. Mascall, 13 M. & W. 72; Hitchcock v. Humphrey, 5 M. & Gr. 559 (44 E. C. L. R.).

(f) Murray v. King, 5 B. & Ald. 165 (7 E. C. L. R.).

(g) Bridges v. Berry, 3 Taunt. 130.

Donley v. Camp, 22 Alabama 659. See Buckner v. Liebig, 38 Mo. 188; Baker v. Robinson, 63 N. Car. 191; Brenner v. Weaver, 1 Kansas 488; Pickett v. Hawes, 14 Iowa 460; Forest v. Stewart, 14 Ohio (N. S.) 246; Sibley v. Van Horn, 13 Iowa 209; Baker v. Kelley, 41 Miss. 696; Weller v. Hawes, 19 Iowa 443; Foster v. Tollison, 13 Richardson (Law) 31; Parkman . Brewster, 15 Gray 271; Second National Bank v. Gaylord, 34 Iowa 246. Where the drawer of a check not paid on presentation has been injured

The old doctrine on this subject was that it lay on the defendant to prove that he had been injured by the want of notice; (h) but it is now settled that the want of notice is a complete defence, and that evidence tending to show the defendant was not prejudiced by the neglect is inadmissible, except in an action against the drawer who had no effects in the hands of the drawee.() And if a man who is discharged for want of notice nevertheless pays the bill, he cannot recover against prior parties. But where an agent drew a bill on his principal for goods bought by the agent for the principal, and the bill was dishonored, of which the agent had no notice, but the agent being afterwards arrested on the bill, paid it, and sued his principal on the contract of indemnity, which the law implies in favor of the agent in such cases; it was held that the agent's not having insisted on the absence of notice as a defence to the action against himself did not preclude him from recovering the amount of the bill against his principal.(k)

But eighthly, and lastly, there are cases in which notice is excused or waived.

*Notice may be dispensed with and excused by a prior [*298] agreement on the part of the party otherwise entitled to it, that it shall not be necessary to give him notice. Thus, where the drawer stated to the holder a few days before the bill became due that he would call and see if the bill had been paid by the acceptor, it was held that he had dispensed with notice.(7)

Where the drawer has countermanded payment, notice of dis

(h) Mogadara v. Holt, 1 Show. 317; 12 Mod. 15, s. c.

(i) Dennis v. Morrice, 3 Esp. 158; Hill v. Heap, D. & R., N. P. C. 59. (k) Huntley v. Sanderson, 1 C. & M. 467; 3 Tyr. 469, s. c.

(7) Phipson v. Kneller, 4 Camp. 285; 1 Stark. 116 (2 E. C. L. R.), s. c.; see Burgh v. Legge, 5 M. & W. 418; and Brett v. Levett, 13 East 214; but see Ex parte Bignold, 1 Deac. 728; Murray v. King, 5 B. & Ald. 165 (7 E. C. L. R.); Soward v. Palmer, 2 Moore 274; 8 Taunt. 277 (4 E. C. L. R.), s. c.

for want of notice of such non-payment, he is not thereby discharged from the payment of the whole check, but only to the extent of the actual injury he has sustained by the want of notice: Pack v. Thomas, 13 Smedes & Marshall 11. See ante, the difference between checks and other negotiable paper.