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Mode in which notice may be given.
payment from the person sought to be charged, should be made within a reasonable time. In order to charge the indorser of a dishonored hundi, the holder must give reasonable notice of such dishonor to the indorser he seeks to charge, and the demand of a petti (duplicate), cannot be deemed equivalent to a notice of dishonor.2
94. Notice of dishonor may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonored, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonor, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.
If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.
Duly Authorized Agent.-We have considered who may be an agent to make, draw, accept and indorse negotiable instruments under Sec. 26, and though the same words are used in this section, the English cases show that, notice to a clerk at a counting house3 is good, or to the wife or servant where the principal is not a merchant, and where the instrument has been signed by an agent, then notice to him is good; but the fact of an
Gopinath v. Abbas Hoossein, 7 Beng. L. R., p. 434, note.
Megraj Fagganath v. Gokaldas Mathura Doss, 7 Bom. H. C. R., O. C. J., 137.
3 Allen v. Edmundson, 2 Exch, 719; S. C. 17 L. J. (Ex.) 293.
Housego v. Cowne, 2 M. & W. 348.
5 Firth v. Thrush, 8 B. & C. 387; S. C. Man. and Ry. 259; see Leeds Banking Co. in re, L. R, I Eq. 1; S. C. 35 L. J. (Ch.) 33.
indorsement being made payable 'in need' at a particular bank, was held not to constitute the Bankers notified, the agents of the indorsers to receive notice of dishonor. 1
To legal representative.-Both Chitty and Byles say that there have been no actual cases in England, where this has been decided, but that since 18493 it has been taken for granted that such is the law.
To his Assignee.-This may only be done after adjudication and from the expression used in the Act that it is after he has been declared an insolvent to his assignee, it would seem that it only refers to insolvency under the Insolvent Act 11 & 12 Vict. c. 21 and not under the Civil Procedure Code, Chap. XX. Under English law although a person is bankrupt and a trustee of his property appointed, the notice may be given to the bankrupt.*
May be oral or written.―This is the same as the English law. May if written be sent by post."-This does not make it compulsory to send the notice where the party is at a distance by the post, but from the concluding clause of the section it is evidently desirable so to do. The English rule is the same but it has been held that if instead of transmitting the notice by post, it be sent by a special messenger, it must be communicated by the day it would have reached by the post. 6
May be in any form.-This was laid down by Lord Tenterden." "There is no precise form of words necessary to be used in giving notice of the dishonor of a bill of exchange, but the language used, must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor."
It must inform the party by express terms or reasonable intendment, &c.-Reasonable intendment, this expression has been adopted from a Judgment of Parke, B. where he said, it was the more correct expression, than necessary implication, which
' Leeds Banking Co. in re, L. R. 1 Eq. 1; S. C. 35 L. J. (Ch.)
3 Caunt v. Thompson, 7 C. B. 400; S. C. 18 L. J. (C. P.) 125.
• Ex parte Baker, 4 Ch. D. 795; S. C. 46 L. J. (Bkcy.) 60.
5 Esdaile v. Sowerby, 11 East, 114. Darbishire v. Parker, 6 East, 3.
Hartley v. Case, 4 B. & C. 339; S. C. 6 Dowl. & R. 505.
Hedger v. Steavenson, 2 M. & W. 799; S. C. 5 Dowl. 77.
in a previous case had been held to be a requisite of the notice.' By the section it is necessary in addition to the information that the instrument has been dishonored and how, that the notice should contain information, that the addressee will be held liable. This is a reversion to the old English rule, and is different to the rule now prevailing in England, for Lord Denman said, after a conference with the Judges, "That it is not necessary in express terms to inform the party whom it is intended to charge, that he will be looked to for payment, and that the sending notice of dishonor is, in itself, sufficient for that purpose "3 and again, the Lords Justices expressed an opinion that a notice simply stating that the bill had been duly presented and dishonored was sufficient.4
Must be given within a reasonable time, &c., see Chap. X.
At the place of business or residence.-A counting house has been held to be a place of business. Lord Ellenborough said, “The "counting house is a place, where all appointments respecting the "business and all notices should be addressed; and it is the duty "of the merchant to take care that a proper person be in attend
ance. It has however been argued, that notice left at the "counting house, or put into the post was necessary, but the law "does not require it and with whom was it to be left. Putting a "letter into the post is only one mode of giving notice, but where "both parties are residing in the same town, sending a clerk is a ،، more regular and less exceptionable mode;" and so a message sent to a counting house within the usual hours of business, though no one was in attendance was held sufficient.
Where a bill was accepted by the manager of a company at the company's office and indorsed there by the defendant a director of the company, and on the bill being dishonored by nonpayment, notice of dishonor was immediately given to the indorser, at the office of the company, though the had company ceased to carry on business, and the defendant did not receive it
1 Solarte v. Palmer, 7 Bing. 530; S. C. 5 Moo. & P. 475.
2 Tindal v. Brown, I T. R. 167; S. C. 2 T. R. 186; Hartley v. Case, 4 B. & C. 339; S. C. 6 Dowl. & R. 505; Solarte v. Palmer, 7 Bing., 530; East v. Smith, 16 L. J. (Q. B.) 292.
3 King v. Bickley, 2 Q. B. 421; Furze v. Sharwood, 2 Q. B. 388; Chard v. Fox, 14 Q. B. 200.
4 Lowenthal, ex parte, L. R. 9 Ch. 591; S. C. 34 L. J. (Bkcy.) 83. 5 Cross v. Smith, 1 M, &. S. 545.
till long afterwards, it was held, that the accepting and indorsing the bill at the company's office, might be said to be domiciling the bill there, and that the defendant might be taken to have held out, that he would be found there, so, as to entitle the plaintiff to treat the company's office, as the defendant's place of business, for the purposes of the bill, and that the notice of dishonor left there, was sufficient.'
Residence. This is apparently equivalent to dwelling houseand it was so held in England. If a party is absent from the country it has also been held that notice left at his place of residence is sufficient.
Nothing is said in the section about what will be good notice to a lunatic but it is submitted, that service on his committee would suffice.
Duly directed and sent by post.-To entitle a person giving notice to the benefit of this provision, the notice must not only be duly directed, but also duly posted, by which latter, is meant that it was posted at such a time, that if it had been delivered in the regular course, it would have been delivered in due time.3 In a case in which a witness proved that a letter containing notice of dishonor, was placed in the usual place for letters to be posted, Lord Ellenborough said, "You must go further than that,
some evidence must be given to show, that the letter was taken 'from such place and put into the post office. Had the porter
been called and he had said that, though he had no recollection "of the particular letter, he invariably took all letters from such "place to the post office, that might have done."4
Where a notice was addressed to an indorser "Mr Haynes, Bristol," the address was held insufficient, without proof of receipt by the addressee of the letter;5 but where a drawer dates his bill "E. G., generally, Manchester" or London," notice sent thus addressed is as against him, some proof, from which due notice may be inferred; but as by the section, the place of business or residence, are the places specified, at which the notice must
1 Berridge v. Fitzgerald, L. R. 4 Q. B. 639.
Housego v. Cowne, 2 M. & W. 348.
3 Fowler v. Hendon, 4 Tyrw.
Skilbeck v. Garbett, 14 L. J.
(Q. B.) 388; S. C. 7 Q. B. 846; Hetherington v. Kemp, 4 Camp. 194.
Walter v. Haynes, Ry. & M. 6 Mann v. Moors, Ry. & M.
Party receiving must transmit notice of dishonor.
Agent for presentment.
be given, it may be doubtful, whether an address of merely the post towns will be within in its terms.
The notice must be duly directed and unless the letter be addressed accurately, any delay caused by inaccuracy will deprive the holder of his remedy against the party to whom notice ought to have been given.1
Miscarriage in the post if duly directed and posted, does not render the notice invalid, if there is delay or even loss.
As to whether it is necessary to send copy of the protest of a foreign bill, see Sec. 135.
95. Any party receiving notice of dishonor must, in order to render any prior party liable to himself, give notice of dishonor to such party within a reasonable time, unless such party otherwise receives due notice as provided by section ninetythree.
This section, extends to persons receiving notice of dishonor the provisions of Sec. 93, and allows to such person, the same time for giving notice from the time he receives it, as the holder has from the time of dishonor (see Sec. 107). If however the holder give notice to more than one party, all parties receiving prior to the holder's immediate party will be liable to those subsequent to them. Thus notice given by the holder, or any other party, enures to the benefit, of all who stand between that party and the person receiving it; and a notice given by one party to another and communicated without laches by that other, renders them liable to him who gave the first notice.3
96. When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give notice to his principal as if he were the holder giving notice of dishonor, and the
Esdaile v. Sowerby, 11 East,
2 Woodcock v. Houldsworth, 16 M. & W. 124; S. C. 16 L. J. (Ex.) 49; Stocken v. Collin, 7 M.
& W. 515; S. C. 9 C. & P. 653 ; Renwick v. Tighe, 8 W. R. 391.
• Wilson v. Swabey, 1 Stark, 34; Chapman v. Keane, 3 A. & E. 193; S. C, 4 N. & M. 607; Horne v. Rouquette, 3 Q. B. D. 514.