1853. ROWE v. TIPPER. the bill became due on Saturday, the 28th of May. The plaintiff living in Hatton Garden, and not knowing the address of the defendant, did not apply to Nicholson (his immediate indorser), who lived in Bow Street, Covent Garden, until half past eleven on Monday night, for the address of the defendant. Nicholson then told him that the defendant was a tailor in Henrietta Street, and the plaintiff sent a notice of the bill being dishonoured, to him, on the Tuesday morning, which reached him in the course of the same day. And Tindal, C. J., said: "I think the notice was too late: the plaintiff, if he meant to look to the defendant, and not to his own immediate indorser, ought to have made prompt efforts to ascertain where the defendant was to be found. Looking to the fact that all the parties reside in the same town, I think it was the duty of the plaintiff to have made his inquiries so as to admit of his giving the defendant notice on the Monday." In Smith v. Mullett, 2 Campb. 208, in an action by the fourth against the first indorser of a bill of exchange, all the parties to which resided in London, it appeared that the plaintiff received notice of the dishonour of the bill, from his indorsee, on the 20th of the month, and gave notice to his. immediate indorser, by a letter put into the two-penny post-office on the evening of the 21st, but so late that it was not delivered out till the morning of the 22nd: and it was held, that, by this laches, the plaintiff had discharged all the prior indorsers, although in the course of the 22nd, notice of the dishonour was given both to the second indorser and to the defendant. Lord Ellenborough said: "It is of great importance that there should be an established rule upon this subject; and I think there can be none more convenient than that, where the parties reside in London, each party should have a day to give notice. I have before said, the holder of a bill of exchange is not, omissis omnibus aliis negotiis, to devote himself to giving notice of its dishonour. It is enough if this be done with reasonable expedition. If you limit a man to the fractional part of a day, it will come to a question how swiftly the notice can be conveyed; a man and a horse must be employed, and you will have a race against time. But, here, a day has been lost. The plaintiff had notice himself on the Monday, and does not give notice to his indorser till the Wednesday. If a party has an entire day, he must send off his letter conveying the notice within post-time of that day. The plaintiff only wrote the letter to Aylett on the Tuesday. It might as well have continued in his writing-desk on the Tuesday night, as lie at the post-office. He has clearly been guilty of laches, by which the defendant is discharged." In Marsh v. Maxwell, 2 Campb. 210, n., the same learned judge ruled, that, upon the dishonour of a bill, it is not enough that the drawer or indorser receives notice in as many days as there are subsequent indorsees, unless it is shewn that each indorsee gave notice within a day after receiving it; as, if any one has been beyond the day, the drawer and prior indorsers are discharged. In Turner v. Leech, 4 B. & Ald. 451, the indorser of a bill of exchange which had been dishonoured, and which a subsequent indorser had made his own by laches, paid the bill, and immediately gave notice of dishonour to the defendant, a prior indorser; and it was held, that the plaintiff could not recover the amount, although it appeared that the defendant, in case successive notices had been given by all the parties on the bill, could not have received notice of dishonour at an earlier period. It is clear, therefore, that this notice was not in time. Then, there being no evidence to shew that Delane had authority to give notice of dishonour on behalf of the plaintiff, his notice cannot avail as a notice by a party to the bill. As was observed by Lord Ellenborough, in Stewart v. Kennett, 2 Campb. 177, "the notice must 1853. ROWE v. TIPPER. 1853. ROWE v. TIPPER. come from the person who can give the drawer or indorser his immediate remedy upon the bill; otherwise, it is merely an historical fact." [Jervis, C. J. The bill was left with Delane by the plaintiff for the purpose of receiving payment of it. It certainly did not appear that Delane had any express authority to give notice of dishonour to the defendant. But I do not think such strict proof of agency was necessary.] Hawkins, in support of his rule. The notice in this case would indisputably have been good, had it come from Abley to the defendant. [Cresswell, J. If the plaintiff meant to treat the defendant as his immediate indorser, he ought to have given him notice on the Monday.] Is the plaintiff to suffer from the laches of Abley? [Maule, J. Yes. It may be that Abley had no cause of action against his indorser on the bill, and therefore of course he would give no notice. Jervis, C. J. Suppose there were twelve indorsers, could the holder give a notice to each of them, from the last to the first, on twelve successive days?] It is submitted he might. [Jervis, C. J. All the authorities are opposed to that.] There is none that is precisely in point. [Jervis, C. J. Could Abley have brought an action against Tipper upon this notice?] Clearly he might: the holder might for that purpose be considered as his agent. [Maule, J. The holder is not the agent of his indorser: but the indorser is the agent of the holder; and the latter may avail himself of a notice given by the former, if given in time (a); but the indorser cannot avail himself of a notice irregularly given by the holder.] The defendant here had notice as soon as he was entitled to have it. [Maule, J. The rule is, that each has a day; not that the holder has a day for each indorser.] (a) See Lysaght v. Bryant, antè, Vol. IX, p. 46. In Wilson v. Swabey, 1 Stark. N. P. C. 34, Lord Ellenborough lays it down, without any qualification, that notice from any person who is a party to the bill, is sufficient. So, in Chapman v. Keane, 3 Ad. & E. 193, 4 N. & M. 607, it was held that the holder of a bill is entitled to avail himself of notice of dishonour given by any party to the bill: and therefore an indorsee, who has indorsed over, and is not the holder at the time of the maturity and dishonour, may give notice at such time to an earlier party, and, upon afterwards taking up the bill and suing such party, may avail himself of such notice. And, in Harrison v. Ruscoe, 15 M. & W. 231, a bill of exchange was drawn by H., and indorsed by him to B., and by B. to C., in whose hands it was dishonoured. C.'s attorney gave notice of dishonour in due time to A., but by mistake stated therein that he was directed by B. (from whom he had no authority) to apply for payment of the bill: and it was held, that the notice of dishonour was sufficient, notwithstanding this misrepresentation,—the only effect of which was, to give A. every defence against C. that he would have had if the notice had really been given by B. JERVIS, C. J. It seems to me that the rule laid down in Chitty and Hulme is the correct rule, and that, if the holder of a bill of exchange wishes to avail himself of a notice of dishonour given by him to a remote indorser, he must give it within the time within which he is by law required to give it to his immediate indorser: and he cannot avail himself of his laches, to gain another day. If he could, the consequence which has been pointed out would follow, viz. that, if there were twenty indorsers, he would have twenty days within which to give notice to the first of them. The rule is correctly laid down by Burrough, J., in Dobree v. Eastwood, that the holder has his day to give notice to any party he 1853. ROWE v. TIPPER. 1853. ROWE v. TIPPER. may seek to charge, and that each of the prior indorsers MAULE, J. I am of the same opinion. The cases cited are not distinguishable in principle from the case in hand. The rule is, that the party who is sought to be charged upon the bill, is entitled to prompt notice of its dishonour by the acceptor. Where the parties live in the same town, it has been said that the notice must be given in time to be received in the course of the day next after the dishonour of the bill, or after the party giving the notice had himself received notice of dishonour. There must be due diligence,-not that the party is bound to neglect all other business, and, the moment he |