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3dly. The time when protest

But in the recent case of Smith v. Mullet, which was an action by the fourth against the first indorsee, all the parties to which resided must be in London, it appeared, that the plaintiff received notice of the made and dishonour of the bill from his indorsee on the 20th of the month, notice giv- and gave notice to his immediate indorser, by a letter put into the

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two-penny post-office on the evening of the 21st, but so late that it was not delivered out till the morning of the 22d, it was held that by this neglect the plaintiff had discharged all the prior indorsers, although, in the course of the 22d, notice of the dishonour was given both to the second indorsee and to the defendant. And Lord Ellenborough in this case 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 give 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 66 you will have a race against time. But here a day has been lost. "The plaintiff had notice himself on Monday, and does not give "notice to his indorser till Wednesday. If a party has an entire day [319] 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 Tues"day; 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." And in Marsh v. Maxwell, Lord Ellenborough 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 indorsers, unless it is shown that each indorsee gave notice within a day after receiving it; and that if any one has been beyond the day the drawer and prior indorsers are discharged; and in a recent case this doctrine was confirmed.'(407)

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From the above-mentioned case of Smith v. Mullett, it appears, that though the holder is not bound to send a special messenger, and may give notice by the post, he must take care to put the letter in the

iSmith v. Mullett, 2 Campb. 208; and see id. 374.

* Marsh v. Maxwell, 2 Campb. 210.

Turner v. Leach, 4 Barn. & Ald. 451. The indorser of a bill 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 and 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. In action against drawer of a bill accepted, payable at a particular place, it is no defence that notice of the dishonour was not given to the acceptor. Edwards v. Dick, 4 Barn. & Ald. 212.

m See also Hilton . Fairclough, 2 Campb. 633.

(407) It is a settled rule that a notice is necessary from the last indorser to every prior indorser, whom he means to charge, immediately after he himself receives notice of the dishonour. Morgan v. Woodworth, 3 John. Ca. 89. And it is said that the last indorser ought in such case immediately to take up the note, and become himself the real holder. Ibid. And see Morgan v. Van Ingen, 2 John. Rep. 204. And notice to an indorser before a demand on the maker is a nullity. Griffin v. Goff, 12 John. Rep. 423. The first indorser in point of time is not of course, first responsible. Chalmers et al v. McMurdo, 5 Munf. 252.

post sufficiently early on the day after he has himself received notice, 3dly. The that the party to whom it is addressed, may receive the letter on that time when day.

protest must be made and

We have seen that the holder will be excused in the delay of giving notice ginotice to the usual time, by the day on which he should regularly have ven. given notice being a day on which he is strictly forbidden by his religion to attend to any secular affairs," or by the absconding of the drawer or indorser."

Where it may be necessary to give notice of non-payment to a banker, it may be proper to give it in the usual hours of business, but to other persons the particular hour of the day is not in general."

The remaining points relative to the time of giving notice, will be found, ante, 223 to 225.

The re

maining

In respect to the person by, and to whom, notice of non-payment should be given, and the liability of the different parties to the bill on notice of the non-payment, and how the consequences of the laches of points the holder may be waived, or otherwise done away, the rules already 320 ]

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stated, as to the conduct of the holder in the case of non-acceptance, are so applicable, that it would be repetition here to make any observation on these points; the reader is therefore referred to the preceding part of the work."

We have already considered the nature of the protest for better se- Sect. 4, Of curity, and of an acceptance supra protest. The nature of a payment payment supra protest remains to be considered.

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Payment of a bill, whether foreign or inland, being refused, any third person, not party to the bill, as he might have accepted, so he may after protest pay it, for the honour of the drawer, or any of the indorsers; which payment, as it is always made after protest, is called payment supra protest; but the acceptor, if he have previously made a simple acceptance, cannot pay in honour of an indorser, because, as acceptor, he is already bound in that capacity ; he may, however, when he has accepted a bill without having effects of the drawer in his hands, and no provision has been made by the drawer for payment, suffer the bill to be protested, and then pay supra protest; in which case he will have a remedy on the bill against the drawer. A party paying a bill supra protest, which has already been accepted by another, may sue such first acceptor; but if a person take up a bill for the honour of the drawer, he has no right of action

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supra protest.

Sect. 4. Of against the acceptor, if he accepted it for the accommodation of the payment drawer.

supra protest.

In general, no person should pay in honour of another, before the bill has been protested for non-payment; and it is said that he should not even then make such payment, before he has declared to a notary [321] public for whose honour he intends making it, of which declaration the

notary must give an account to the parties concerned, either in the protest itself, or in a separate instrument. If, however, the acceptor supra protest for the honour of the drawer or indorser, receive his approbation of the acceptance, he may pay the bill without any protest for nonpayment.

Although, with respect to other debts, a stranger, who has no interest in them, does not, by paying them, entitle himself to the rights of a creditor, unless he have the consent of the debtor to such payment, yet, with regard to bills of exchange, a stranger, who pays them in case of protest, acquires all the same rights that the holder of a bill had, although no regular transfer of the bill were made to him; and he may maintain an action against the person for whose honour he discharged the bill, either on the bill itself, or on a count for money paid to the defendant's use. And in an action upon a bill with several indorsements by a plaintiff, who had paid the bill under protest for the honour of one of the indorsers, it is sufficient even on a special demurrer to state that he paid the bill according to the usage and custom of merchants, without stating that he had paid it to the last indorsee." A person taking up a bill for the honour of the drawer has, however, no right against the acceptor without effects." The reason of the above exception to the general rule, precluding a party from constituting himself the creditor of another, without his concurrence, it has been observed, is, that it induces the friends of the drawer or indorsers to render them this service, it tends to prevent the great expense attending the return of a bill, and preserves the credit of the trader,° &c.

Ex parte Lambert, 13 Ves. 179.-Bayl. 146, 148.

Beawes, pl. 53. Mar. 128.

8 Beawes, pl. 48.

h Exall v.
Partridge, 8 T. R. 310. 1 Rol.
Ab. 11. Lampleigh v. Buthwait, Hob. 105.
Stokes v. Lewit, 1 T. R. 20. In Williams
v. Millington, 1 Hen. Bla. 83. Jenkins v.
Tucker, Id. 91.

Mertens v. Winnington, 1 Esp. Rep. 112. Poth. pl. 171. Ex parte Wackerbarth, 5 Ves. 574. Manning's Index, 70. Fairley v. Roch, Lutw. 891. See Manning's Index, 70.

Smith v. Nissen, 1T. R. 239.

m Cox v. Earle, 3 Barn. & Ald 430. Ex parte Lambert, 13 Ves. 179. Bayl. 148, but see 5 Ves. 574.

Beawes, pl. 54. Poth. pl. 171.

CHAPTER VII.

OF CHECKS ON BANKERS.

A CHECK, or draft, on a banker, is a written order or request, addressed to persons carrying on the business of bankers, and drawn upon them by a party having money in their hands, requesting them to pay, on presentment, to a person therein named, or to bearer, a named sum of money. The form of a check has already been given. It nearly resembles a bill of exchange, but it is uniformly made payable to bearer, and must be drawn upon a regular banker. On account of the daily and immediate use of checks, the legislature has exempted them from stamp duties, provided they be for the payment of money to the bearer on demand, and drawn upon a banker, or person acting as such, residing, or transacting the business of a banker, within ten miles of the place where such draft or order shall be issued, and provided also that such place be specified in such draft or order, and that the same bear date on or before the day the same shall be issued, and do not direct the payment to be made by bills or promissory notes." We have before considered the decisions upon this enactment. If these requisites be not strictly observed, an unstamped check cannot be read in evidence for any purpose.d

It was once thought, that a check or draft on a banker is not negotiable generally, but only so within the bills of mortality. But it is now settled, that they are as negotiable as bills of exchange, though, strictly speaking, they are not due before payment is demanded, in which respect they differ from bills of exchange or promissory notes, payable on a particular day. In practice, they are taken in payment as cash, and it has been decided, that a banker in London, receiving bills from his correspondent in the country, to whom they had been indorsed to present for payment, is not guilty of negligence in giving up such bills to the acceptor upon receiving a check on a banker for the amount, although it turn out that such check is dishonoured. (1) They [ 23 ] must however, be described as checks, and not as cash in an annuity transaction. And in action for usury, the forbearance should be laid from the time when the check was actually received, and not from the

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(1) If a person receives a check drawn by another, and passes it in payment, he stands in the situation of an indorser of a bill; and unless he knew that the drawer had not money in bank, is not liable, except on due notice and diligence. Humphries v. Bicknell, 2 Litt. 299.

time when it was given. It is said that checks are not protestable ;* and this doctrine seems to be correct, because checks are payable on presentment, and the statute 9 & 10 W. 3. c. 17, applies only to bills of exchange payable after the date.

In the ordinary course of business, a check cannot be circulated or negotiated so as to affect the drawer, who has funds in the hands of the bankers, after banking hours of the day after he first issues it. But where the drawers of a banker's check issued it nine months after it bore date, upon a consideration which afterwards failed, as between them and the persons to whom they delivered it, it was held that they could not be permitted to object to this circumstance in an action brought by a subsequent holder for a valuable consideration, and without notice, though by the general rule, any person receiving a negotiable instrument after it is due, is deemed to have taken it upon the credit of the person from whom he received it, and subject to the same equities as existed between him and the party sued on such instrument.

With respect to the time when checks should be presented for payment, the general rule seems to be, that it suffices to present it at any time during banking hours of the day after it was issued." If the banker on whom the check is drawn has reason to suspect that the drawer has committed an act of bankruptcy, he cannot safely pay the draft, because the payment of a check on a banker is not protected by the statute 19 Geo. 2. c. 32. s. 1. which mentions only bills of exchange and debts for goods sold. Most of the rules respecting bills of exchange affect checks on bankers, and therefore it may suffice to refer to the preceding part of the work, and to the Index, tit. Check.

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