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the bill, together with all interests and charges from the day such bill 2dly. Form was protested; for which protest shall be paid a sum not exceeding the sum of sixpence; and in default or neglect of such protest, or due notice given, the party forfeits his right of action.

Some observations have already been made on this statute. It has been decided, that the holder of a bill payable after sight, is not entitled to the accumulative remedy given to this statute, and that a bill within the meaning of the act, cannot be noted or protested until the day after the last day of grace. It has also been decided, that as the directions of the statute are positive that no sum exceeding sixpence shall be taken for the protest, no larger sum can legally be demanded, notwithstanding it is customary to charge more. It is doubtful, whether the clerk of a notary can, under this statute, make the demand of payment." The act only gives an additional remedy, and does not take away the common law one, and therefore it is not necessary to protest, it being in all cases sufficient to give notice of non-payment, and the holder is entitled to claim interest from the drawer, although there is no protest. A protest must also be made on the non-payment of coal notes given pursuant to 3 Geo. 2. c. 26.

s. 187.*

y

ing and giv

ing notice.

The remaining points relative to the form and mode of protesting and [313] giving notice, will be found, ante 215 to 222.

protest

must be

A protest for the non-payment of a foreign bill, or at least the minute 3dly. The of it, must be made on the day of refusal ; and it seems not to be settled time when whether it suffice that a foreign bill be noted by a notary on the day of payment, and the protest drawn up at any time afterwards. Notice of made and the dishonour should be sent to the parties, to whom the holder means notice gito resort, by the earliest ordinary conveyance; but it is not necessary ven. to send a copy of the protest.

In the case of an inland bill, no protest for non-payment can be made until the day after it is due. If a bill be payable at a banker's, and the

Ante, 218, 219. Leftley v. Mills, protest of bills are "after the expiration of 4 T. R. 170.

Id. ibid. post, 313, note.

'Id. ibid. post, 313, note.

three days," and see Leftley v. Mills, 4 T.
R. 170. An inland bill for 207. 78. payable
fourteen days after sight, became due the

Id. ibid. See the list of notary's fees 24th of April, 1790. A banker's clerk in the Appendix.

"Ante, 216, 17.

* Brough v. Parking, 2 Ld. Raym. 992. Harrison v. Benson, 2 Stra. 910. ante, 218, 19. 3 & 4 Ante, c, 9. s. 5. 2 Bla. Com. 469.

y Windle v. Andrew, 2 Bar. & Ald. 696. 2 Stark. 425, S. C. and, 218.

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* Smith v. Wilson, Andr. 187. see post. Leftley v. Mills, 4 T. R. 170. Tassel . Lewis, Ld. Raym. 743. ante, 228, note. Ante, 217, 18. 223. Chaters v. Bell, 4 Fsp. Rep. 49. ante, 223. Bayl, 122, 3. Selw. 4th ed. 345, 6.

* Ante, 224. Darbishire v. Parker, 6 East, 7.

4 Ante, 217. Robins v. Gibson, 1 M. & S. 289. 3 Campb. 334. S. C.

The words of the statute 9 & 10 Will. 3. c. 17. s. 1. which enable holders to make

called with it for payment in the morning,
and the acceptor not being at home, left
word where it lay. After six, another of
the clerks, who was a notary, noted it,
and between seven and eight the first
clerk went with it again; the acceptor ten-
dered him the amount of the bill and six-
pence over, but he insisted on 2s. 6d. for
the noting, and that sum not being paid, an
action was brought against the acceptor,
who pleaded the tender. Lord Kenyon
thought the tender of the amount of the
bill at any time of the day it was payable
was sufficient, upon which the jury found
a verdict for the defendant. A rule to
show cause why there should not be a new
trial was afterwards granted, and upon
cause shown, Lord Kenyon thought the
acceptor had till the last minute of the day
of grace to pay the bill, and that it could

3dly. The notary do not present it there, until after five o'clock, he will not be a time when competent witness to prove the non-payment of the bill, which should protest have been presented before that hour."

must
made and

notice gi

ven.

With respect to the time when the notice of non-payment must be given, and the mode of giving such notice, it might suffice here to refer to that part of the work in which the giving notice of non[314 acceptance has been considered. But as the rules upon this point are of such practical importance, we will again consider them in their more immediate application to this part of our subject, at the same time requesting the attention of the reader to the preceding observations. 5

It is incumbent on the holder to prove that notice of the non-payment was given in due time to the party he sues, and it cannot be left to inference without positive proof, and therefore this is one of the most important branches of the law respecting bills."

It has been doubted, whether in the case of an inland bill, payable after date or sight, or on a particular event, the drawee has not the whole of the day when the bill is due to pay it in, without reference to banking-hours, and consequently, whether notice of non-payment can be given until after that day. But we have seen, that according to the more recent decision, notice of non-payment may be given on the last day of grace. The usual practice is, to present such a bill for payment in the course of the morning, and if refused in London, for a notary to present it again in the evening, and if payment be then also refused, the notary notes it, and it should be returned to the party from whom the holder received it, if resident in the same place, early in the next morning, (usually by ten o'clock, but depending on distance) and if residing elsewhere, by the post of that day; and this course is certainly regular; as it is in no case necessary to give notice

not be noted or protested till the following
day. Buller, J. thought they were payable
at any time of the last day of grace upon
demand, so as such demand was made
within reasonable hours, and that they
might be protested on that day. Grose, J.
declined giving any opinion upon these
points, but the whole court concurred that
the bill in question could not be noted be-
cause it was payable within a limited time
after sight, and the statute authorizes the no-
ting of such inland bills only as are payable
after date. Lord Kenyon also thought the
sixpence tendered was sufficient for the
noting, and the rule was discharged.

Parker v. Gordon, 7 East, 385. 3 Smith
Rep. 358. S. C. ante, 277, note. Sed vide
ante, 277, notes.

& See the observations, ante, 223 to 225. 1 Lawson and another, assignees of Schiffner v. Sherwood, 1 Stark. 314. In an action by the indorsee against an indorser of a bill, a witness states that either two or three days after the dishonour of the bill, notice was given by letter to the defendant, notice in two days being in time, but notice on the third too late, it cannot be left as a question for the jury whether

notice was given in time, although the defendant has had notice to produce the letter which would ascertain the time. Per Lord Ellenborough. The witness says two or three days, but the third day would be too late. It lies upon the plaintiff to show that notice was given in due time, and I cannot go upon probable evidence without positive proof of the fact, nor can I infer due notice from the non-production of the letter, the only consequence is, that you may give parol evidence of it. The onus probandi lies upon the plaintiff, and since he has not proved due notice he must be called. Plaintiffs nonsuited.

Leftley v. Mills, 4 T. R. 170, ante, 285. Haynes v. Birks, 3 Bos. & Pul. 602. Colket v. Freeman, 2 T. R. 59.

* Id. ibid.

Ante, 285.

m But it is in no case necessary to have an inland bill presented for payment by a notary Leftley v. Mills, 4 T. R. 170. unless to subject the drawer and indorsers to payment of interest, damages, &c. Bou lager v. Talleyrand, 2 Esp. Rep. 550. ante, 219.

must be

ven.

1

non-payment of an inland bill on the day of refusal."(401) On the 3dly. The day after that on which the bill becomes due, and when it was pre- time when sented for payment and refused, the then holder must give notice of the protest non-payment to the next preceding party; and it seems now to be es- made and tablished, that where the parties live in London, or in an adjacent notice givillage within the limits of the two-penny post, each party has an entire day, after that on which he was informed of the dishonour, to give notice to the immediate indorser, and that the notice may be given by letter put into the post-office, however near the residence of the different parties may be, sufficiently early to be received on the day on which he is entitled to notice ; and where the parties do not reside in London, it will be sufficient if the party gives notice to his immediate indorser by the next practical post after he has himself received notice ; or he may send notice by a private hand, provided it be delivered on the same day that it would have arrived by the post. And with reference to the principles of the decisions on the first branch of this rule, and for the sake of certainty, it may be considered in all cases sufficient, whether the parties reside in London," or elsewhere, if each forward notice on the day after that on which he received" information of the dishonour of the bill. If a party receive notice by a letter delivered on a Sunday he need not open it till Monday, and then it suffices for him to send off notice to the preceding party on Tuesday.' The following recent decisions will establish these

rules.

According to the cases collected in Darbishire v. Parker," the notice of non-payment must be given within a reasonable time, which is a

" Id. ibid. Darbishire v. Parker, 6 East, 8, 9, 10. Tindall v. Brown, 1 T. R. 168, 9. Russell v. Langstaffe, Dougl. 515. Muilman v. D'Eguino, 2 Hen. Bla. 565. Burbridge v. Manners, 3 Campb. 193. ante, 285, 6.

• Scott v. Lifford, 9 East 347. 1 Campb. 249. S. C. Smith v. Mullet, 2 Campb. 208. March v. Maxwell, 2 Campb. 210. Jameson v. Swinton, 2 Campb 374. Kilton v. Fairclough, 2 Campb. 533. Haynes v. Birks, 3 Bos. & Pul. 599. Williams v. Smith, 2 Barn & Ald. 500.

P Darbishire v. Parker, 6 East, 3. ante, 219 to 221, as to the insufficiency of notice by the post.

9 Bancroft v. Hall, 1 Holt, C. N. P.
476. ante, 220, 1.

Jameson v. Swinton, 2 Campb. 374, 2
Taunt. 224. S. C.

Per Abbott, C. J. The time within
which notice of the dishonour of a bill
must be given I have always understood
to be the departure of the post on the day
following that in which the party receives
the intelligence of the dishonour. See
Williams v. Smith, 2 Barn. & Ald. 500.
and Bray v. Hadwen, 5 Maule & Sel 68.
Wright v. Showcross, 2 Barn. & Ald.
501, note a.

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"6 East, 3 & 9 to 12.

But see

And it is

(401) But it has been held in Massachusetts that where the indorser lives in the same town with the promissor, he ought to have notice on the same day on which there is a demand and refusal of payment. Woodbright v. Brigham, 12 Mass. Rep. 403. Langdale v. Trimmer, 15 East, 291. Bennet v. Raugh, 2 Taunt. Rep. 387. certain that if default be made in the payment of a note the day on which it becomes due, a notice to, and demand on, the indorser afterwards on the same day is not too early. Widgery v. Munroe, 6 Mass. Rep. 449. Corp v. McComb, 1 John. Ca. 328.

Where a dishonoured note was left with the indorser, who was an attorney, to collect the same, this was held not to be a sufficient notice to charge him as indorser. Agan v. M.Manus, 11 John. Rep. 180.

The holder of an inland bill or note is not obliged to send notice of non-payment until the next day after its dishonour. Hartford Bank v. Stedman, 3 Conn. Rep. 489.; but if demand has been made on the maker of a note on the third day of grace, notice to the indorser may be given on that day, and is sufficient. Lindenberger v. Beall, 6

Wheat. 104.

must be

ven.

3dly. The question of law depending nevertheless upon the circumstances of time when each case. In this case Mr. Justice Lawrence said, "The general protest "rule, as collected from the cases, seems to be with respect to permade and "sons living in the same town, that the notice shall be given by the notice gi-"next day ; and with regard to such as live at different places, that it "should be sent by the next post. But, if any particular place, [316] the post should go out so early after the receipt of the intelligence, "as that it would be inconvenient to require a strict adherence to the "general rule, then with respect to a case so circumstanced, it would "not be reasonable to require the notice to be sent tilf the second "post."

Where notice of the dishonour of a bill of exchange by the acceptor, in London, was sent by the post to the holder in Manchester, where the letter was delivered out between eight and nine o'clock in the morning, and the post went out for Liverpool, where the drawer lived, between twelve at noon and one, and the holder did not send notice to the drawer by the post either of the same day or the next, but sent it in a letter by a private person on the latter day, who did not deliver it to the drawer till two hours after the post delivery, and only about one hour before the post left Liverpool for London, whereby the drawer was so agitated that he could not write in time for that day's post to London; it was holden, that at all events the holder had made the bill his own by his laches; for whether reasonable notice be a question of law, or of fact, or whether the general rule of law require notice of the dishonour of a bill to be sent to a party living at another place by the next post after it is received, by which must be understood the next practicable post in point of time and distance, and whether four hours between the coming in and going out of the post be a sufficient interval in point of practical convenience to receive the notice, and to prepare a letter of advice to the drawer; at all events the holder ought to have written by the post of the next day after notice received by him, and ought not to have delayed the receipt of notice by the drawer until after the arrival of the next post, by sending the letter by a private hand."

But we have seen, that provided the notice arrive on the proper day, the sending it by a private hand, by which a later delivery on that day was occasioned than if it had been sent by the post, will not prejudice.

Where a bill of exchange passed through the hands of five persons, all of whom lived in London, or the neighbourhood, and the bill when due being dishonoured, the holder gave notice on the same day to the fifth indorser, and he on the next day to the fourth, and he on the next day to the third, and he on the next day to the second, and he on the [317]same day to the first, the court were of opinion, on a case finding these facts, that due diligence had been used.

Where a bill, indorsed in blank, and deposited by the holder with his bankers, became due on Saturday, and was presented for payment

a Darbishire v. Parker, 6 East, 3.

y Id. Ibid.

* Id. Ibid. Bancroft v. Hall, 1 Holt, C. N. P. 476, ante, 221, note.

b Hilton v. Shepherd, 6 East, 14. Smith v. Mullett, 2 Campb. 208; and see Jameson v. Swinton, 2 Campb. 374. 2 Taunt 224, S. C.

protest

about two o'clock on that day, and payment being refused, the bill was 3dly. The noted, and again presented between nine and ten in the evening by a time when notary, and on Monday the bankers informed the holder that the bill must be was dishonoured, who, on Monday about noon, gave notice by the post made and to the indorser, and it appearing that the holder lived at Knightsbridge, notice giand the indorser in Tottenham-court-road, it was holden, that this no- ven. tice was sufficient to entitle the holder to recover against the indorser;" and Lord Alvanley, C. J. observed, that as soon as the banker is informed of the non-payment of a bill, it becomes his business to acquaint his principal of that circumstance; and that if a bill be returned to a banker, he is bound to give notice to his principal that very day, if he can do so by using ordinary diligence; but that in the last-mentioned case, it was impossible for the bankers on Saturday night to give notice to the plaintiff, since the bill was not presented by the notary till between nine and ten o'clock. On Sunday of course they were not bound to do so. And on Monday they did apprize the plaintiff of the non-payment; that it did not appear at what time of Monday the plaintiff received the notice. The plaintiff was not bound to be at home the whole of the day; and supposing him to have returned home late on that day, he was not bound to send a special messenger to the defendant; if he informed the defendant the course of the post it was insufficient. Certainly he was bound to write by the two-penny post on Monday, and supposing him to have done so, the defendant would only receive his letter on Tuesday. It appeared, that on Tuesday he did receive the notice. The court could not so nicely measure the minutes as to consider whether the precise time of the receipt corresponds with the time at which a letter sent by the post on Monday night, would arrive.

In Robson v. Bennett; it was held, that a person receiving a check on a banker, is equally authorized in lodging it with his own banker to obtain payment, as he would be in paying it away in the course of trade, although in consequence thereof, the notice of dishonour is postponed day, one day being allowed for notice from the payee to the drawer, af. 318 ] ter the day on which notice is given by the bankers to the payee, and the bankers are to be considered as distinct holders: and the same doctrine was established in Langdale v. Trimmer as to a town banker; and in Bray v. Hadwen, as to a country banker.

So in the case of Scott v. Lifford, where the indorser of a bill of exchange lodged it with his bankers, who presented it for payment on the fourth, when it was dishonoured, and on the fifth they returned it to the indorsee, who gave notice to the drawer of the dishonour on the sixth by the two-penny post, it was held, that such notice was reasonable. And Lord Ellenborough, C. J. said, "I cannot say that the "holder, on the return of the bill dishonoured to him, is bound, omissis " omnibus aliis negotiis, to post off immediately with notice; if reason"able diligence has been used it is sufficient."

< Haynes v. Birks, 3 Bos. & Pul. 599. d Not so now; a banker is considered as a distinct holder, though he is possessed of the bill, merely to receive for his customers. Robson v. Bennett, 2 Taunt. 388. Langdale v. Trimmer, 15 East, 291. Bray v. Hadwen, 5 M. & S. 68.

• Robson v. Bennett, 2 Taunt. 288.
Bayl. 126.

Langdale v. Trimmer, 15 East, 291.
Bayl. 126.

8 Bray v. Hadwen, 5 M. & S. 68.

h Scott v. Lifford, 9 East, 347. 4 Campb. 249. S. C.

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