[*302]

*If the drawer of a bill make it payable at his own house, this is evidence to go to the jury that it is a bill drawn for

Simmons, 4 Mason 113; Cathell v. Goodwin, 1 Har. & Gill 468; Hoffman v. Smith, 1 Caines 157; Savage v. Merle, 5 Pick. 88; Armstrong v. Gay, 1 Stewart 175; Dollfus v. Frosch, 1 Denio 367; Foard v. Womack, 2 Alabama 368; Kinsley v. Robinson, 21 Pick. 327; Cook v. Martin, 5 Smedes & Marshall 379; Spear v. Atkinson, 1 Iredell 262; Rhett v. Poe, 2 Howard, U. S. 457. In the matter of Brown, 2 Story 502; Stewart v. Desha, 11 Alabama 844; Younge v. Ruff, 3 Strobhart 311; Richie v. McCoy, 13 Smedes & Marshall 541. The drawer is entitled to notice of the dishonor of a bill if he had reasonable ground to believe it would be honored, though he had no funds in the drawee's hands: Austin v. Rodman, 1 Hawks 195; Stanton v. Blossom, 14 Mass. 116; French's Ex. v. Bank of Columbia, 4 Cranch 141; Robinson v. Ames, 20 Johns. 146; Grosvenor v. Stone, 8 Pick. 83; Campbell v. Pettengill, 7 Greenleaf 126; Hill v. Norris, 2 Stewart & Porter 114. Though the drawer has no funds in the hands of the drawee and no ground to expect the bill to be honored, yet the indorser is entitled to notice in all cases, unless he has received funds from the drawer to take up the bill: Scarborough v. Harris, 1 Bay 178; Barton v. Baker, 1 Serg. & Rawle 334; Warder v. Tucker, 7 Mass. 452; Fotheringham v. Price's Ex., 1 Bay 291; Denniston v. Imbrie, 3 Wash. C. C. 401; Ramdulollday v. Darieux, 4 Ibid. 61; Walker v. Walker, 2 English 542. An indorser of a promissory note who, before the note falls due, takes an assignment of all the property and estate of the maker, for the express purpose of meeting his responsibilities, is not entitled to the usual notice of non-payment: Mechanics' Bank v. Griswold, 7 Wend. 165; Barton v. Baker, 1 Serg. & Rawle 334; Coddington v. Davis, 3 Denio 16, 610; Duvall v. Farmers' Bank, 9 Gill & Johns. 31. The mere taking of security by an indorser from the maker of the note does not dispense with a demand and notice, unless sufficient funds have come into his hands to satisfy the note, or all the property of the maker has been transferred to the indorser: Spencer v. Harvey, 17 Wendell 489; Marine Bank v. Smith, 6 Shepl. 99; Cramer v. Perry, 17 Pick. 332; Woodman v. Eastman, 10 N. Hamp. 359; Durham v. Price, 5 Yerg. 300; Watkins v. Crouch, 5 Leigh 522; Watt v. Mitchell, 6 Howard (Miss.) Rep. 131; Barrett v. Charlestown Bank, 2 McMullan 191; Kramer v. Sanford, 4 Watts & Serg. 328; Burrows v. Hannegan, 1 McLean 309; Stephenson v. Primrose, 8 Porter 155; Kyle v. Green, 14 Ohio 495; Denny v. Palmer, 5 Iredell 610; Develing v. Ferris, 18 Ohio 170. The burthen of proof is on the holder of a bill to show that the drawer had no funds in the drawee's hands in order to excuse want of notice: Baxter v. Graves, 2 Marshall 152; Ralston v. Bullits, 3 Bibb 261; Thompson v. Stewart, 3 Conn. 172. Where the indorser has discharged the maker of a note from liability by a settlement and release, a notice of non-payment would be of no use to him, and therefore he is not entitled to it: Burk v. McKay, 2 Howard U. S. Rep. 66.

See, also, Hawes v. Austin, 35 Illinois 396; Lawrence v. Schmidt, Ibid. 440; Commercial Bank v. Barksdale, 36 Mo. 553; Merchants' Bank v. Easley, 44

the accommodation of the drawer himself, of the dishonor of which it is not necessary to apprise him. "I cannot understand," says Lord Tenterden, "why the drawer should with his own hand make the bill payable at his own house, unless he was to provide payment of it when at maturity."(e)

Ignorance of a party's residence will excuse neglect to give notice of dishonor, so long as that ignorance continues without neglecting to use the ordinary means for acquiring information. "It would be hard," observes Lord Ellenborough, "when the holder of a bill does not know where the indorser is to be found, if he lost his remedy by not communicating immediate notice of the dishonor of the bill, and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance; but, if he uses reasonable diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered is due notice of the dishonor of the bill within the usage and custom of merchants."(f) Where the holder, in order to discover the residence of the indorser,

See

(e) Sharp v. Bailey, 9 B. & C. 44 (17 E. C. L. R.); 4 M. & R. 4, s. c. Query, whether a notice of dishonor be necessary where the drawer dies before maturity, and an indorser is sued who is the drawer's executor. Caunt v. Thompson, 18 L. J., C. P. 127; 7 C. B. 400 (62 E. C. L. R.), s. c. (f) Bateman v. Joseph, 2 Camp. 463; 12 East 433, s. c.; Browning v. Kinnear, Gow 81; Harrison v. Fitzhenry, 3 Esp. 240; Baldwin v. Richardson, 1 B. & C. 245 (8 E. C. L. R.); 2 D. & R. 285, s. c. In this last case the traveller of a tradesman received in the course of business a promissory note, which was afterwards dishonored. The principal not knowing the address of the next preceding indorser wrote to his traveller to inquire into it, and several days elapsed before he received an answer. He then gave notice, and it was held sufficient. See Chapcott v. Curlewis, 2 Moo. & Rob. 484.

Mo. 286; Mehlberg v. Fisher, 54 Wisc. 607; Walker v. Rogers, 40 Illinois 278; McRae v. Rhodes, 22 Ark. 315; Sullivan v. Deadman, 23 Ibid. 14.

An accommodation drawer is entitled to notice, even though he had no funds in the hands of the drawee: Merchants' Bank v. Easley, 44 Missouri 286. The drawer is entitled to notice of dishonor when by the course of business between him and the drawee he had a right to expect that the bill would be paid, as well as where he had funds in the drawee's hands at the time of drawing: Louisiana State Bank v. Buhler, 22 La. Ann. 83; Dunbar o. Tyler, 44 Mississippi 1. Evidence that on presentation the drawer said that he had no money to pay will not be sufficient to excuse notice: Mehlberg v. Fisher, 24 Wisc. 607.

had merely made inquiries at a certain house where the bill was made payable, Lord Ellenborough said, "Ignorance of the indorser's residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here? How should it be expected that the [*303] requisite information *should have been obtained where the bill was payable? Inquiries might have been made of the other persons whose names appeared on 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."(g) Due diligence has, however, been held to be a question of fact.(h) After the residence of the party is discovered, the holder has the same time to give notice as he would have had in the first instance.(¿)1

(g) Beveridge v. Burgis, 3 Camp. 262.

(h) Bateman v. Joseph, 12 East 433; 2 Camp. 463, s. c.; Hilton v. Shepherd, 6 East 14, n.; Siggers v. Browne, 1 M. & Rob. 520; Hewitt v. Thompson, 1 M. & Rob. 543. In these two last cases the letters containing notice of dishonor had miscarried, and the jury were directed to consider whether the generality or indistinctness of the description which the defendant had given of himself in the bill had led the plaintiff into error.

(i) Firth v. Thrush, 8 B. & C. 387 (15 E. C. L. R.); 2 M. & R. 359; Dans. & L. 151, s. c.; Allen v. Edmundson, 17 L. J., Exch. 291; 2 Exch. 719, s. c.; Dixon v. Johnson, 1 Jur., N. S. 70.

1 Where the holder of a bill of exchange, after the exercise of due diligence to ascertain the residence of the indorser, sends him a notice of the dishonor of the bill, and afterwards discovers that he was not rightly informed, and ascertains the true residence, it is not necessary for him to send another notice: Lambert v. Ghiselin, 9 Howard (U. S.) 552.

What is diligence? see Shepard v. Citizens' Ins. Co., 8 Missouri 272; Planters' Bank v. Bradford, 4 Humphrey 39; Brener v. Wightman, 7 Watts & Serg. 264; Rhett v. Poe, 2 Howard (U. S.) 157; Carroll v. Upton, 2 Sandf. Sup. Ct. Rep. 171; Rawdon v. Redfield, Ibid. 178; Carroll v. Upton, 3 Comstock 272; Lambert v. Ghiselin, 9 Howard (U. S.) 552; Johnson v. Lewis, 1 Dana 182; Davis v. Herrick, 6 Ham. 55; Bank of Columbia v. Lawrence, 1 Peters 578; Van Hosen v. Van Alstyne, 3 Wend. 75; Sice v. Cunningham, 1 Cowen 397; Nash v. Harrington, 1 Aiken 39; Bronaugh v. Scott, 5 Call 78; Harris v. Robinson, 4 Howard (U. S.) Rep. 336; Pierce v. Pendar, 5 Metc. 352; Wheeler v. Field, 6 Metc. 290; Thorn v. Rice, 3 Shepl. 263; Spencer v. Bank, 3 Hill 520; Winans v. Davis, 3 Harrison 276; Hoopes v. Newman, 2 Smedes & Marsh. 71; Godley v. Goodloe, 6 Ibid. 255; Remer v. Downer, 23 Wend. 620; 25 Ibid. 277; Belden v. Lamb, 17 Conn. 441; Haly v. Brown, 5 Barr 178; Ashley v. Gunton, 15 Arkansas 415; Porter v. Judson, 1 Gray 175; Moore v.

Nemo ad impossibile tenetur; and therefore it should seem on general principles that the death or dangerous illness of the holder or his agent, or other accident not attributable to the holder's negligence, rendering notice impossible, may excuse it.(k) But where an indorser left home on account of the dangerous illness of his

(k) Poth. 144; Pardessus du Contrat de Change 426; Thompson 483, 548.

Hardcastle, 11 Maryland 486; Newberry v. Trowbridge, 4 Michigan 391; Linderman v. Guldin, 10 Casey 54; Boyd v. City Savings, 15 Grattan 501; Middleton Bank v. Morris, 28 Barbour 616; Heiss v. Corcoran, 15 Louisiana Annual 694; Early v. Preston, 1 Patton & Heath 228; Adams v. Leland, 5 Bosworth 411; Brighton Bank v. Philbrick, 40 New Hampshire 506; Blodgelt v. Durgin, 32 Vermont 361; Libby v. Adams, 32 Barbour 542; Davenport v. Gilbert, 4 Boswell 532. The holder is presumed to know the residence of his immediate indorser, and is bound to inform the notary or agent employed to give notice: Lawrence v. Miller, 16 New York 235. Due diligence of notary is not sufficient if the holder knew: Randall v. Smith, 34 Barbour 452. It is the duty of the holder to inform the notary of the residence of the maker and indorser; and if unknown to the holder, he must inquire of those whose names are on the bill as to the residence he does not know; and if there are none such on the note he must use due diligence to ascertain it Smith v. Fisher, 12 Harris 222. What is due diligence in giving notice is a question of law when the facts are admitted; when the facts are disputed, the court should give hypothetical instructions, leaving the facts to the jury: Linville v. Welsh, 29 Missouri 203; Wyman v. Adams, 12 Cushing 210. See further as to what is due diligence both in making demand and giving notice: Howland v. Adrian, 1 Vroom 41; First National Bank v. Needham, 29 Iowa 249; National Bank of the Metropolis v. Williams, 46 Mo. 17; Boyd v. Orton, 16 Wisc. 495; Palmer v. Whitney, 21 Indiana 58; Walker v. Stetson, 14 Ohio (N. S.) 89; Bartlett v. Isbell, 31 Conn. 296; White v. Stoddard, 11 Gray 258; West River Bank v. Taylor, 7 Bosworth 466; Ray v. Porter, 42 Ala. 327; Tyson v. Olion, 43 Ibid. 455; Alexander v. Parsons, 3 Lansing 333; Peters v. Hobbs, 25 Ark. 67; James v. Wade, 21 Louis. Ann. 548; Dunbar v. Tyler, 44 Miss. 1; Durden v. Smith, Ibid. 548; Earnest v. Taylor, 25 Texas (Suppl.) 37; Harper v. Kenner, 19 Louis. Ann. 63; Van Wickle v. Downing, Ibid. §3; Holtz v. Boppe, 37 New York 634; Staylor v. Ball, 24 Md. 183; Garvie v. Downie, 33 Cal. 176; Bird v. Heirs of Doyal, 20 Louis. Ann. 541; Judson v. Goodwin, 37 Illinois 286; Whitridge v. Rider, 22 Md. 548; Johnson v. Bank of North America, 5 Robertson 554 ; Peters v. Hobbs, 25 Ark. 76; Tate v. Sullivan, 30 Md. 464; Mitchell v. Young, 21 Louis. Ann. 279; Puig v. Carter, 20 Louis. Ann. 414; Jarvis v. Garnett, 29 Mo. 268.

Cessation of mails and commercial intercourse during the civil war is a sufficient excuse for want of notice: House v. Adams, 12 Wright 261; Apperson v. Bynum, 5 Coldwell 341; Morgan v. Bank of Louisville, 4 Bush 82; Apperson v. Union Bank, 4 Coldwell 445.

wife at a distance, and a letter containing notice of dishonor of a bill lay unopened at his shop during his absence, till after the proper time for giving his indorser notice, Lord Ellenborough held that these circumstances afforded no excuse for the delay.(7)'

Where a bill is drawn by several persons upon one of themselves, since the acceptor is likewise a drawer, notice of dishonor is superfluous, as the dishonor must be known to one of them, and the knowledge of one is the knowledge of all.(m)2

The death, bankruptcy or insolvency of the drawee, however notorious, constitutes no excuse for neglect of notice.(n)3 [*304] *Nor an agreement or understanding between the parties that the instrument shall not be payable till after a certain event.(0)

Notice of dishonor need not be given if the bill be on an insufficient stamp.(p)

(1) Turner v. Leach, Chit. 9th ed. 330.

(m) Porthouse v. Parker, 1 Camp. 82. But in case of fraud a different rule would prevail: Bignold v. Waterhouse, 1 M. & Sel. 259. And it may be doubtful how far this rule would hold in the case of a joint stock company.

(n) Russell v. Lanstaffe, Doug. 497; Esdaile v. Sowerby, 11 East 114; Boultbee v. Stubbs, 18 Ves. 21; but see 3 Bro. C. C. 1.

(0) Free v. Hawkins, 8 Taunt. 92 (4 E. C. L. R.); 1 Moore 28, s. c. (p) Cundy v. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.).

1A state of war between the country of the drawer and that of the drawee will excuse notice, but it must be given within a reasonable time after peace: Hopkirk v. Page, 2 Brock. 20. The blockade of a city is a sufficient excuse for not sending notice: House v. Adams & Co., 12 Wright 261.

2 If the drawer be a partner of the firm on which the bill is drawn, the holder need not prove notice to him of its dishonor: Gowan v. Jackson, 20 Johns. 176; see Dwight v. Scavil, 2 Conn. 654. Where co-partners purchase goods together and give a note therefor, with one of them as maker and the other as indorser, the latter is not liable on his indorsement, unless he be duly notified of the dishonor of the note: Foland v. Boyd, 11 Harris 476; Morris v. Husson, 4 Sandf. 93. "This is not like the case where a note has co-partners for the makers, and some of them for indorsers, and where of course the knowledge of the dishonor by the makers is chargeable on them as indorsers:" Lowrie, C. J.

The insolvency and absconding of the drawee are no excuse for not giving notice to the indorser: May v. Coffin, 4 Mass. 341; Barton v. Baker, 1 Serg. & Rawle 334; Gibbs v. Cannon, 9 Serg. & Rawle 201; Hunt v. Wadleigh, 13 Shepl. 271; and see McClellan v. Clark, 2 Brevard 106; Kiddell v. Ford, 3 Ibid. 178; Lawrence v. Langley, 14 New Hampshire 70.