Theophilus Parsons.

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the courts, and in the cases, with reference to the party by whom
notice should be given. Thus it has been said that notice must
come from the holder, and that a notice given by any other party
was insufficient, because the drawer or indorser is not apprised
thereby of the holder's intention to look to him for payment. (a;)

It has also been said that it makes no difference who apprises
tlie drawer, since the object of the notice is that the drawer may
have recourse to the acceptor, (y)

It has likewise been said that any party to the bill may give
notice, (s)

The first of these propositions is clearly inaccurate, because it
has long been settled that a notice properly given by a prior
indorser, in due time, will enure to the benefit of the subsequent

(/) See Powles v. Page, 3 C. B. 16.

(m) Van Wart v. Wooley, 3 B. & C. 439, 445 ; Swinyard v. Bowes, 5 M. & S. 62.

(tj) Infm, Vol. II. p. 137.

(w) hfrn. Vol. II. p. 137.

(x) Tindal «;. Brown, 1 T. R. 167, 2 id. 186 ; Ex parte Barclay, 7 Ves. 597. These
cases were expressly overruled by Chapman v. Keane, 3 A. & E. 193, 4 Nev. & M. 607.

{_(/) Lord Keni/on, Shaw v. Croft, Chitty on Bills, p. 333.

(z) 3 Kent. Com. 108; Lord Ellenborough, Wilson v. Swabey, 1 Stark. 34; Glasgow
V. Pratte, 8 Misso. 336. See Glasscock v. Bank of Mo., id. 443 ; Walker v. Bank of
Mo., id. 704 ; Duncan, J., Juniata Bank r. Hale, 16 S. & R. 157, 160.


parties. (rf) Thus, if the holder duly notifies the sixth iudorser,
and he the fifth, and he the fourth, and he the third, and he the
second, and he the first, the latter will be liable to all the par-
ties. (/(/) So notice duly given by a subsequent indorser to the
prior indorser will enure to the benefit of all up to the first. (6")
Thus, if the holder in the case supposed duly notified all the
indorsers, the first indorser will be liable to all, although the
holder was the only party to give the notice.

The second proposition cannot be true, because it is equally
well settled that notice cannot be given by a stranger to the note
or hi\L{d)

The third proposition is inaccurate, because it is clear tliat no-
tice cannot be given by any party who is himself discharged by
the laches of any prior party, either on his own account, (e) or
for the benefit of other parties to the bill.(/) There appears to
be much doubt whether notice given by the acceptor who refuses
to pay is a good notice, which can enure fo the benefit of any
other party. It has been decided that a notice so sent to the
drawer is sufficient to bind liim.(i,'') But this has been much
questioned, (/i) on the ground that one of the objects of sending

(a) Jameson v. Swinton, 2 Camp 373, 2 Taunt. 224; Wilson v. Svvabcy, 1 Stark.
34 ; Bray v. Hadwen, 5 Maulc & S. 68; Chapman v. Keane, 3 A. & R. 193, 4 Nev.
& M. 607 ; Lvsaght v. Bryant, 9 C. B. 46 ; Trijjlett v. Hunt, 3 Dana, 126 ; Wliitman
V. Fanners' Bank. 8 Port. Ala. 2.')8 ; Wilcox v. Mitchell, 4 How. Miss. 272 ; Renshaw
V. Triplctt, 23 Misso. 213; Glasscock v. Bank of Mo., 8 Misso. 443 See Baker v.
Morris, 25 Barb. 138.

(6) In Hilton ». Shepherd, 6 East, 14, note c, there -were six indorsers, and notice
was regularly given by the indorsers in succession. The second sued the first indorser,
and recovered.

(c) Statford v. Yates, 18 Johns. 327; Abat v. Rion, 9 Mart. La. 465; Marr v.
Johnson, 9 Yerg. 1 ; Wilcox v. Mitchell, 4 How. Miss. 272. Whether this is confined
to the case of actual reception by the party to be charged, or whether, if a subsequent
indorser, after using due diligence, sends the notice to the wrong place, this enures to
the benefit of any party, is considered infra, p. 627.

(J) Stewart v. Kennett, 2 Camp. 177; Chanoine v. Fowler, 3 Wend. 173 ; Duncan,
J., Juniata Bank v. Hale, 16 S. & R. 157, 160; Tuck, J., Brailsford v. Williams, 15
Md. 150, 158.

(e) Turner v. Leech, 4 B. & Aid. 451 ; Rowe v. Tipper, 13 C. B. 249.

(/) See Harrison v. Ruscoe, 15 M. & W. 231.

{g) By Lord Kenyan, at Nisi Prius, in Shaw v. Croft, Chitty on Bills, p. 333 ;
Lord EUenhoroucjh, in Rosher v. Kieran, 4 Camp. 87 : Brailsford v. Williams, J 5 Md.
150 ; Union Bank t. Grimshaw, 15 La 321.

(h) Bayley on Bills, 6th London ed. 250 ; Chitty on Bills, 333 ; Byles on Bills, 214 ;
Story, § 304. In Harrison v. Ruscoe, 15 M. & W. 231, Parke, B., after quoting the


uotice is to inform the party to whom it is sent that he is looked
to for payment by the party who sends ; and inasmuch as the ac-
ceptor wlio refuses to pay has no claim upon the drawer, or on
any party to the bill, he cannot make any demand. A drawee
who refuses to accept is not a proper party to give notice ; (t) and
it is somewhat difficult to see what difference there is in the case
of an acceptor refusing to pay.

It seems also to have been held that the maker may give no-
tice. (7) On the whole, we do not see why, if the party primarily
liable is a proper person to give notice, a mere stranger may not.
Our own method of stating the rule, independently of tliese au-
thorities, would be, that notice may be given by any party to a
note or bill, not primarily liable thereon as regards third parties,
and not discharged from liability upon it at the time notice is

It will not be understood that these remarks apply to an ac-
ceptor supra protest, as it is within his power to give notice of
the dishonor by the original drawer, and he will have a claim
founded thereon, and on his own acceptance. (^')

The holder may of course give notice by his agent,(Z) who may
give the notice in his own name,(/n) or in the name of one of the
other parties. (y^) But in this last case, the party charged by the
notice will be entitled to insist on any defence against the real
principal which he might have made against the party from whom
the notice purported to come.(o)

A person to whom a note is indorsed for the purpose of collec-

rule laid down by Judge Story with approbation, said : " The rule equally excludes the
case of notice by an acceptor, who never could sue himself upon the bill after taking
it up ; and tiie instances in which a notice by an acceptor has been held good at Kisi
Prius are explained by Mr. Justice Bayley, on the supposition that in these the ac-
ceptor had a special authority to do so."

(i) Stanton v. Blossom, 14 Mass. 116.

{ ;■) Gl.asgow v. Pratte, 8 Misso. 3.36.

\k) Supra, p. 319.

(/) Harris v. Robinson, 4 How. 336 ; Tunno v. Lague, 2 Johns. Cas. 1 ; Shed v.
Brett, 1 Pick. 401 ; Follain v. Dupre', 1 1 Rob. La. 454, 470; Walker v. BaTik of Mo.,
8 Misso. 704 ; Crawford v. Branch Bank, 7 Ala. 20.5, 213. In East v. Smith, 4 Dow.
& L. 744, it was doubted by Coleridge, J. whether a tradesman's foreman or servant was
a proper party.

(m) Woodthorpe v. Lawes, 2 M. & W. 109.

(n) Rogerson v. Hare, 1 Willm. W. & D. 65, 1 Jur. 71 ; Harrison v. Ruscoe, 15
M. & W. 231.

(o) Harrison v. Ruscoe, 15 M. &, W. 231.

VOL. I. 43


tion is a proper party to give notice ; (p) and so is a notary to
whom the note is handed to protest,(^) though the latter officer is
not obhged to give it.(r)

If the lioldcr is dead, notice should be given by liis administra-
tor or executor, if any are appointed ; {s) and if none are ap-
pointed at the time of maturity, the indorser will not be dis-
charged, provided notice is sent to him within a reasonable time
after his appointment. (/) So it would be if the note or bill is
not discovered, or its existence known to the administrator at
maturity, (m) provided the administrator is not guilty of laches
in not finding it, and forwards the notice immediately after
finding it.

It has been held that a signature is essential to a notice, be-
cause if a notice is not signed, it cannot be said to be given by
any person ; (v) but it has been also said that a notice was good
whether signed or not,{w) and we have also seen that it need not
state who the holder was at the time of maturity. (.r)

It has been said that it is the duty of a notary who makes a
protest to give notice of it.{xa) But although it is usual and
convenient for the notary to give notice, and he has undoubtedly
sufficient authority to do this as the agent of the holder, it is
quite certain that this is no part of his official d\xty.{xb)



One of the most important questions under the law of notice
is, Within what time must the notice be sent ? The rule, as laid

(p) Ogden V. Dobbin, 2 Hall, 112. So it may be giyen by his agent. Cowper-
thwaite v. Sheffield, 1 Sandf. 416, 3 Comst. 243.
{q) Infra, p. 645.
(r) Infra, p. 645, note I.
(s) Story on Prom. Notes, § 304.
(t) Infra, p. 559.
(«) Infra, p. 559.

(v) Walker v. Bank of Mo., 8 Misso. 704.

(w) Henderson, J., Bank of Cape Fear v. Seawell, 2 Hawks, 660.
(x) Supra, p. 473, note.

(xa) Cowen, J., in Halliday v. McDoagall, 20 Wftud. *5.
(xb) Burke v. McKay, 2 How. 66.


down in the earlier English cases, (y) and in some of tlic Ameri-
can cases, (z) was, that notice must be sent within a reasonable
time after dishonor, and that what was a reasonable time was a
question of fact for the jury. Now, however, the courts iiave
fixed this period so definitely as a matter of law, that it hardly
seems appropriate to speak of it as a merely reasonable time,
although this continues to some extent to be the language both
of text-writers and of judicial decisions. (a)

(y) We have already seen that originally the rule was, that a demand and protest
might he made in a reasonable time after the day a note or bill matured. In Hussoi v.
Langstaffe, 2 Doug. 514, one of the notes was payable Sept. 22, two on Sept. 27, and
two on Oct. 4. The plaintiff notified the indorser on Oct. 14. Objection was made
that this was not in time. The counsel for the defendant " admitted that what shall be
deemed reasonable notice to an indorser of non-payment by the drawer ought properly
to be decided by the jury, but said it was well established that such notice ought to be as
early as possible. That where the parties live at a distance, the notice ought to be given
by the first post, but that here the parties lived in the same town, and no notice had been
given till ten days after the time of payment, even in the case of the notes payable in
October.'' But tiie case turned on another point. In Hilton v. Shepard, 6 East, 14,
note c, Hopes i;. Alder, id. 16, note, Lord Kenyon thought the question to be one for
the jury, notwithstanding the case of Tindal v. Brown, 1 T. R. 167.

(z) The early cases in Pennsylvania do not appear to be quite consistent. In Stein-
metz V. Currey, 1 Dall. 234, 270, the court admit that notice must be given in a reason-
able time, but set aside a verdict for the plaintiff where there had been a delay of over
two years, holding that the war which then existed was no excuse for so long a delay, the
parties living within one hundred and fifty miles of each other. But in the following
cases the time was held a matter of fact for the jury. Robertson v. Vogle, 1 Dall. 252 ;
Bank of North America v. Vardon, 2 id. 78; Bank of North America v. M'Knight, id.
158, 1 Yeates, 145, where there was a delay of one day ; Mallory v. Kii-wan, 2 Dall. 192 ;
Warder v. Carson, id. 233, 1 Yeates, 531 ; Bank of North America i'. Pettit, 4 Dall.
127; Gurly v. Gettysburg Bank, 7 S. & R. 324, where there was a delay of five
days, and a verdict for the plaintifT was sustained. There seems to be a similar con-
flict in the c:ises in North Carolina. ■ In Pons v. Kelly, 2 Hayw. 45, it was held that
the court are to judge of what is reasonable time. In London v. Howard, id. 332, it
was submitted to the jury, the judge, however, expressing to them his opinion that ten
days' delay was too much. The jury found for the defendant. In Brittain v. Johnson,
I Dev. 293, the reasonable time was held a matter of fact, and also that the strict ruleg
as to negotiable paper did not apply, as between farmers in the country. In Brahan
V. Rngland, Minor, 85, the question was held to be one of fact. So Hager v. Boswell,
4 J. J. Marsh. 61.

(a) In Tindal v. Brown, 1 T. R. 167, notice was not given until two days after the note
matured. The jury found for the plaintiff, and a new trial was granted. A second
verdict for the plaintiff was likewise set aside, and a third resulted in a verdict for the
defendant. This judgment was affirmed in the Exchequer Chamber, 2 T. R. 18G. See
Darbishire r. Parker, 6 East, 3. In Furze v. Sharwood, 2 Q. B. 388, 415, Lord Den-
man, C. J. .said : " Perhaps Lord Mansfield never conferred so great a benefit on the
commercial world as by his decision in Tindal v. Brown, where his perseverance
compelled them, in spite of themselves, to submit to the doctrine of requiring immedi-

608 NOTES AND BILLS. [cU. Xll.

It is clear that there can be no notice without a prior demand,
because notice must be based upon the fact that presentment hae
been made, and payment refused. (6)

Tliore appears to be some want of precision in the language of
the text-writers, and of some of the courts, in laying down the
rule as to the time within which notice must be deposited in the
post-office in order to charge the indorsers. One eminent jurist
has expressed an opinion that notice will be sufficient if mailed
at any time on the day after dishonor, although it may not be in
season to go by the mail of that day.(6-) But this opinion is open
to the objection, that it would be almost necessarily giving the
holder more than the entire day after dishonor ; as, for instance,
if the only daily mail for the place where the indorser lives
should close at 8 P. M., and the holder were allowed to deposit

ate notice as a matter of law." We are aware of no modern cases in this country in
whicli a different doctrine is held. There may not, however, be so great a conflict be-
tween the decisions wiiicii hold the question to be one of law and those in which it
is said to be a matter of fact, or a mixed question of law and fact, as mi{,'ht at first
appear. Tiie rule as now generally laid down is, that the courts have established a
definite limit, within which the plaintiff must prove that be sent the notice, or else must
show such circumstances as will excuse him from a strict compliance with the rule;
and this last fact must necessarily open the whole question, as it may depend on such a
variety and complication of facts that the intervention of a jury is essential to decide
the matter. In Stott v. Alexander, 1 Wash. Va. 331, a bill was drawn in Philadelphift
on London, and protested there in September. Notice was received in the latter part
of the following June. The court thought the notice was reasonable. In Pinder v.
Nathan, 4 Mart. La. 346, the question was held to be one of fact; but in Chandler v.
Sterling, 9 id. 565, it was held to be a mixed question of law and fact. So Spencer v.
Stirling, 10 id. 88, where there was a delay of one month, and a verdict for the plain-
tiff was sustained. In Haddock c. Murray, 1 N. H. 140, it was said to be a question
of fact ; but where the facts were ascertained, the court should pass upon it. In Bryden
V. Bryden, 11 Johns. 187, it was said to be a mixed question of law and fact; but
where the facts were clear, it was a question for the court. Three days' delay was held
too long. In Philips v. M'Curdy, 1 Harris & J. 187, it is said that notice must be given
" in due and convenient time, of which the court are to judge." In Scarborough v. Har-
ris, 1 Bay, 177, it is said that "the holder of a bill must give reasonable notice to the
indorser, that is, by first post or convenient opportunity, which is partly a matter of
fact for jury, what is reasonable or not." In Stanton v. Blossom, 14 Mass. 116, it is
Baid that notice must be given within a reasonable time. So in Aldis v. Johnson,
1 Vt. 136, 140; but the court decided the question.

(6) Jackson v. Richards, 2 Caines, 343, where notice was given the last day of grace,
and the demand made the succeeding day.

(c) 3 Kent, Com. 106, note e. In a subsequent part of this note, added iu one
of the more recent editions, the learned editor appears to have adopted the stricter
view, and, as is conceived, fallen into the opposite error. See also the remarks o( John-
ton, J., Johnson v. Harth, 1 Bailey, 482, 484.


tlie notice in the office at 9 P. M., the effect of this would be to
allow the holder two days ; for the notice might as well be per-
mitted to remain in his desk as to lie in the post-office till the
mail for the next day should close. This seems to be a greater
relaxation than is consistent with all the leading authorities.

Another suggestion has been made by a distinguished judgp
and writer, ((/) which is, that the holder should be required to send
the notice by the first mail whicli starts after twenty-four hours
from the time of actual dishonor. But the great objection to this
view is, that it would render an inquiry into the exact time of
presentment necessary, Which would clearly be inconvenient and

It has also been said that notice should be sent by the next
mail after dishonor,(6!) or by the next practicable mail.(/) This
is incorrect, because it might render it necessary to mail the no-
tice on the very day of dishonor, and the cases are clear and de-
cisive on the pomt that notice need in no case be sent on that
day.(g-) Thus, in one case, where notice was received at 9 A, M.,
and the mail left at 6 P. M., it was held that notice need not be
forwarded that day, although the next subsequent mail did not
leave until the second day thereafter, (/i)

(rf) Story on Bills, § 290, note. Judge Story simply puts this by way of sugges-
tion. In § 288 the rule is stated with accuracy. See also Prom. Notes, ^ 324.

(e) Tindal v. Brown, 1 T. II. 1 67 ; Darbishire v. Parker, 6 East, 3, 9 ; Hubbard v.
Troy, 2 Ired. 134 ; Denny v. Palmer, .5 id. 610 ; Whittlesey v. Dean, 2 Aikens, 263;
Curry v. Bank of Mobile, 8 Port. Ala. 360 ; Hickman v. Ryan, 5 Littell, 24.

(/) Mitchell V. Degrand, 1 Mason, 176 ; U. S. v. Barker, 4 Wash. C. C. 464 ; Mead
». Engs, 5 Cowen, 303 ; Dodge v. Bank of Ky., 2 A. K. Marsh. 610, 616.

(g) Hartford Bank v. Stedman, 3 Conn. 489 ; Whitwell v. Johnson, 17 Mass. 449 ;
Housatonic Bank v. Laflin, 5 Cush. 546 ; Howard v. Ives, 1 Hill, 263 ; Bank of U. S.
V. Merle, 2 Rob. La. 117 ; Downs v. Planters' Bank, 1 Smedes & M 261 ; Deminds v.
Kirkman, id. 644. The rule is the same where the parties live in the same place.
Pearson v. Duckham, 3 Litt. 385 ; Noble v. Bank of Kentucky, 3 A. K. Marsh. 262.
The dictum of Parker, C. J., in Woodbridge v. Brigham, 12 Mass. 403, 404, to the con-
trary, is overruled by Grand Bank v. Blanchard, 23 Pick. 305, where an indorser who
was notified on the day after dishonor was held, although it had been the usual course
of the bank which sent the notice to notify the parties living in the same town on the
last day of grace. There is also a dictum of Hutchins, J., in Nash v. Harrington, 2
Aikens, 9, to the same eiFect. See Whittlesey v. Dean, id. 263.

(A) Geill V. Jeremy, Moody & M. 61. It will be seen subsequently, that in general
any party who receives a notice is entitled to as much time in which to forward it to
the indorser whom he wishes to charge, as the holder at the time of dishonor. In Bank
of Alexandria v. Swann, 9 Pet. 33, demand was made at 3 P. M. The mail closed
at half past 8 P. M. Objection that the notice should have been forwarded thereby was


It is said in some cases that the notice should be sent by tho
first mail of the next day after dishonor ; {i) but the authorities
in wiiich it was necessary to decide the point hold that it may be
sent by any mail of that day. Thus, where one mail leaves in
the morning and another in tlie evening, the holder has the right
to elect which one he will use by which to transmit the notice. (7)

In many cases it is said that notice should be sent by the mail
of the next day after dishonor ; (k) but most of these were cases

overruled. So Mead v. Kngjs, 5 Cowen, 303, where the notice was received in the
mornino;, and the mail left at 1 P. M. ; Howard v. IVes, 1 Hill, 263, where the mail
closed at .') P. M. See also tiie cases cited infra, p. 511, note /, p. 512, note o.

(?) Uickius V. Beal, 10 Pet. 572, 581 ; Bank of U. S. v. Merle, 2 Rob. La. 117:
Towiisley v. Springer, 1 La. 122. See Brown v. Turner, 11 Ala. 752.

{j) Goodman v. Norton, 17 Maine, 381 ; Howard v. Ives, 1 Hill, 263 ; Whitwell r.
Johnson, 17 Mass. 449. See Housatonic Bank v. Laflin, 5 Cush. 546, where it is said
that this is true, however late the last mail might start.

(k) In Lenox v. Roberts, 2 Wheat. 373, Marshall, C. J. said : "It is the opinion of
the court that notice of the dofiiult of the maker should be put into the post-oflBce early
enough to be sent by the mail of the succeeding day." So also U. S. v. Barker, 4 Wash.
C. C. 464, 12 Wheat. 559, where the notice was received on one day, and not forwarded
by the only mail of the next day, which left at half past 10 A. M. The court held that
the indorser was discharged. In FuUerton v. Bank of U. S., I Pet. 604, the judge
charged the jury that " notice should have been given to the indorser through the
medium of the post-office, the day after the last day of grace, in season to go by the
suceeding mail." Held correct, as the word "succeeding" must be taken to apply
to the words " last day of grace," and not " the day after the last day." Johnson, J.
said : " With this signification, it was rather more favorable than need be given, since
the mail of the next day m.ay have gone out before early business hours, or no mail
may have gone out for several days." In the following cases it is laid down that notice
should be sent by the next day's mail. Williams v. Smith, 2 B. & Aid. 496 ; Wright
V. Shawcross, id. 501, note ; Housatonic Bank v. Laflin, 5 Cush. 546 ; Talbot v. Clark,
8 Pick. 51 ; Whitwell v. Johnson, 17 Mass. 449 ; Brown v. Ferguson, 4 Leigh, 37 ;
Manchester Bank v. White, 10 Foster, 456 ; Manchester Bank v. Fellows, 8 id. 302.
In Chick v. Pillsbury, 24 Maine, 458, Shepley, J., in a dissenting opinion, maintained
that the notice must be sent, at all events, by the mail of the day succeeding dishonor,
however early it may start. The cases of Goodman v. Norton, 17 Maine, 381, Beck-
with V. Smith, 22 id. 125, are cited as sustaining his opinion, but they do not seem to be
decisions on the point ; or if they are to be so considered, they are overruled by Chick
V. Pillsbury, 24 Maine, 458. The objections which Mr. Justice Shepley makes to the
opinion of the majority of the court are, that that doctrine will introduce too great
uncertainty into the law, that this view maintained by him would be certain and uni-
form. There is no doubt that it would. But then the more lax rule, as stated by
Chancellor Kent, supra, p. 508, note c, would certainly be as " uniform, certain, and
easy of apprehension." There is an objection to that rule, as already stated, it is
true. But there is a like objection to the more strict one, which we state in our text
And if it should be necessary to choose between one or the other, we apprehend that it
would be more reasonable to adopt the former. But modem decisions, as we shall see,
take a middle ground between them.


which hold that a notice so sent is sufficient, which is undoubt-
edly true, else the court only intended to state the general rule
without the qualifications. It is obvious that, if there is no
mail the next day, the notice cannot be sent by such a mail ;
and if by this rule is meant that notice must be sent at any
rate by a mail of that day, we should say that it is incorrect.
So, if the only mail which leaves on the day after dishonor
should close at 2 A. M., and leave at half past three, our
opinion is that notice need not be sent by that mail, but may
be forwarded by that of the next day. The most recent au-
thorities in which it has been necessary to pass directly upon
this point have so decided, and the rule, and, as we think, the
correct one, is affirmed to be, that the holder is bound to for-
ward the notice as early as by a mail of the day after dishonor
which does not start at an unreasonably early hour;(/) and if
there is no mail which leaves on that day after a reasonably early

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