
    * Francis Stanton and Another versus Benjamin Blossom and Another.
    Where the drawer of a bill of exchange had effects in the hands of the drawee, but after the bill was drawn, and before it was presented for acceptance, the effects were attached in the hands of the drawee, the drawer was still held entitled to notice of the non-acceptance, b’uch notice is sufficient, if given within a reasonable time, although the holder commences his action against the drawer, on the non-acceptance of the bill, before forwarding the notice.
    fjut the notice must come from the holder of the bill, or from one authorized by him, or from one liable as endorser. Notice by the drawee, who has refused acceptance, is not sufficient.
    Assumpsit on a bill of exchange, drawn by the defendants, merchants at New York, for value received, in favor of E. D. Corn-stock, also of New York, on White Andrews, merchants of Boston, for 700 dollars, payable at thirty days’ sight, dated at New York, May 13, 1810, and endorsed by Comstock to the plaintiffs.
    Trial was had on the general issue, at the last November term before the Chief Justice.
    
    The bill was presented in the morning of the 16th of May, the day of its arrival by mail, and was refused acceptance; the drawees stating that they had been served with a foreign attachment in favor of Howland &f Burns, who were creditors of the defendants to a greater amount than the funds in their hands.
    On the same morning, and within an hour after the opening of the mail from New York, the plaintiffs commenced the present suit, and attached property.
    
      White f Andrews, the drawees, wrote to the defendants, by the mail of that day, informing them that they had refused to accept their bill in favor of Comstock, and stating the reasons for their refusal.
    It was admitted, at the trial, that no notice was ever given by the plaintiffs themselves to the defendants themselves,- of the nonacceptance of the bill, or of the plaintiffs’ intentions to resort to them for payment. The only evidence on this point was contained in the deposition of one Rogers, testifying to a conversation between the defendant Blossom and Comstock, the payee of the b'll, in July, 1816. Comstock inquired if Blossom had not received due notice of the non-acceptance * of the draft on White &f Andrews; to which Blossom answered, that it was so long since the transaction, that he could not recollect, but he presumed he had; that his letter-book would show; but that he had received information from Comstock and others. Being asked whether he had funds in the hands of White 8f Andrews, to the amount of the draft, Blossom answered, that he had in property, but not realized.
    No evidence was offered that the drawees acted as the agents of the plaintiffs in giving notice, nor that Comstock, if he gave any such notice, acted as such agent.
    The drawees, at the time of the presentment of the bill to them, had property of the drawers in their hands on consignment, to a greater amount than 700 dollars ; but a short time before the presentment, and on the same morning, they had been summoned as the trustees of the drawers in the manner above mentioned.
    The defendants objected to any evidence of notice from the drawees, or from the payee of the bill; and contended that it was incumbent on the plaintiffs to prove notice from themselves, as the holders of the bill, to the defendants ; that the testimony of Rogers was not sufficient to prove legal notice from the payee ; and that the notice proved must be prior to the bringing of the action.
    
      The Chief Justice
    
    overruled these objections, and directed a verdict for the plaintiffs ; which was to be set aside;, and a new trial granted, if the objections were well founded.
    
      Gallison, for the defendants.
    Notice to the drawer of the nonacceptance of his bill is necessary in every case, except where he has no effects or funds in the hands of the drawee.
    This notice, to avail the holder, must be given by him, that the drawer may know that the holder looks to him. 
    
    The notice in this case, such as it was, was not seasonable. It was not until after the commencement of * the action, and the plaintiffs can avail themselves of nothing after action commenced, which is necessary to give them a right of action. Notice is a condition precedent, on which the right of action depends. It is a necessary part of the title to the action.  Nothing can supply the defect of it but the single fact that the drawee has no funds of the drawer in his hands.  Should it be said that this rule has no application in the case at bar, because, in fact, the drawee had no funds at the time, it is answered, that the rule extends to every case where the drawer has a reasonable expectation that he has funds in the hands of his drawee. Notice is dispensed with only on the ground of fraud and imposition on the part of the drawer.  It has often been regretted, by English judges, that this solitary exception was ever admitted.
    
      Savage, for the plaintiffs,
    contended that, if neglect to give notice be excusable in any case, it must be so here. It has been holden that the plaintiff' might take the burden of showing that no damage happened to the drawer from want of notice, and of rebutting the presumption that he had funds in the hands of the drawee. Both these things the. plaintiffs have done in this case. No injury could, by any possibility, have arisen to the defendants from the want of notice, since all their funds in the hands of the drawees were previously arrested by process of law.
    - But notice was, in fact, given in this case, and that in the best mode, if regard be had to the reason of the rule. The reason uniformly given for the necessity of notice is, that the drawer may have an opportunity to secure his funds. In this case, the notice not only informed the defendants of the dishonor of their bill, but that the funds relied on had been by the law appropriated to the _>enefit of other creditors, from whence they would immediately see .t to be their duty to take up the bill; and by the commencement of this action, it was put beyond all doubt with them that the plaintiffs looked to them.
    It seems to be settled that notice from any one, who * is a party to the bill, is notice from all, and shall avail all according to their respective rights.  Put the case of a bill, with several endorsers, left in a bank for collection. The bank is agent for the holder only. On the bill’s being dishonored by the acceptor, notice is given to the drawer and the several endorsers. The holder receives payment from the last endorser, who thereupon calls on the drawer: it could not surely lie in his mouth to object that this endorser had not given him notice, although some one else had.
    
      
       1 Chitty, 180.— Bull. N. P. 277. — 1 D. & E. 170, Tindall vs. Brown.—Kyde. 126. —7 Ves. Jun. 597.—Bayley, 71.
    
    
      
      
        Doug. 683. — 2 W. Black. 747. —6 Mass. Rep. 388, Blakely vs. Grant. —Lawes's Pleadings in Assumpsit, 282.
    
    
      
       3 Esp. Rep. [58, Dennis vs. Morris. — 1 Esp. Rep. 332, Staples vs. Okinez. — 2 B. & P. 279, Whitfeld vs. Savage. — 3 B. & P. 239, Clegg vs. Cotton.
      
    
    
      
       1 D. E. 408, Bickendike vs. Bollman. — 7 East, 359, Orr vs. Maginnis. — 35 East, 220. —16 East, 43, Rucker vs. Hiller. — 1 B. P. 655, Walwyn vs. St. Quintín
      
    
    
      
       1 Starkie's N. P. Rev. 34, Wilson vs. Swabey.
      
    
   Putnam, J.,

delivered the opinion of the Court. The first question which presents itself in this case is, whether the plaintiffs were bound to give notice to the drawers of the non-acceptance of this bill by the drawees.

It is settled that, where the drawee has no effects of the drawer, no notice of non-acceptance is necessary; and this for the reason, that the drawer had no right to draw upon one who owed him nothing.

But in the case at bar, the defendants had effects in the hands of the drawees, when they made their bill; and they had a reasonable expectation that it would be paid. We are satisfied that this is a case where the drawers were entitled to notice, notwithstanding . the effects were attached after the bill was drawn, and before it was presented for acceptance.

It seems, therefore, necessary to consider whether the notice, which was given by the drawees in this case to the defendants, was within a reasonable time; and if so, whether it can avail in this action, as if it had been given by the plaintiffs.

The plaintiffs commenced their suit before the letter was put into the post-office, containing information of the dishonor of the bill. But the letter was in season to go by the first mail. Now, all that is required of the holder, in case of the dishonor of a bill, is to use due diligence to give notice to all who may be affected, and to whom he intends to resort. No notice may be, in fact, received for months. The party to be notified may be in a foreign country. No opportunity * of writing may occur soon. And after all reasonable care and endeavors, the notice may never arrive in season to be of any advantage. The ship or the mail which carries the letter may be destroyed. But the party, who has used due diligence, is not to suffer by such events. He is not bound to wait until notice has been received, before he is per mitted by law to take measures for his security. In the case at bar, therefore, the notice seems to have been given in a reasonable time,

But the point of the most difficulty remains. Shall the information communicated by the drawees avail in this action, as if it had peen given by the plaintiffs themselves ? It has been argued that the defendants have not been prejudiced at all; that their funds, although not appropriated according to their desire, have yet been applied to the payment of their debts; that the information, coming from the drawees, must have been as useful and authentic as could nave been given. It is said, also, that the drawees are a party to the bill; and that notice from a party to a bill enures for the benefit of all. In support of this point, the case of Wilson vs. Swabey was cited and relied on. That was assumpsit by the endorsee against the drawer. The bill became due on Thursday; Lewis, an endorser, was notified on Friday, and he notified the defendant on Saturday. The objection was, that there was no notice from the plaintiff; but Lord Elle7iborough held that notice from any person, who was a party to the bill, was sufficient.

But the drawee who refuses to accept is not a party, or charge able in virtue of a bill; and notice from him is in no degree better than from any other stranger.

More than twenty years ago, it was decided, in the case of Tindall vs. Brown, which was cited in the argument for the plaintiffs, that notice must come from the holder; and many later decisions have corroborated the rule. In a late case, in' Campbell’s Reports, this point is directly decided. The holder himself, or some one authorized, must give the notice. Now, the *endorser, who has been notified by the holder of the dishonor of the bill, may, by reason of his liability, be considered as authorized to notify the drawer for the benefit of the holder as well as himself, both having an interest in the matter. They can and ought to inform the drawer whether he must pay the bill; and that is a material fact to be communicated to him, and which no stranger is presumed to know. The bill may not be duly honored; and the holder may be willing to accept an equivalent, or may give credit to the drawee. In such case, the drawer would be discharged. There is good sense in the rule which requires the notice to come from a party liable to be charged upon the bill, on having an interest in it; and the drawer is not to be affected by information from any other quarter.

New trial ordered. 
      
       [Shed vs. Brett, 1 Pick. 401. — New England Bank vs. Lewis, 2 Pick. 123 — Ed.]
     
      
       2 Campb. 177, Stewart vs. Kennet.
      
     