Bills of

Exchange.

necessity of presenting for payment as well as of notice of dishonour, Terry v. Parker, 6 Ad. & Ell. 507; S. C. 1 Nev. & Per. 752. 143. Where a bill is accepted payable at a particular place, it is Notice to acnot necessary, in an action against the acceptor, to prove notice of ceptor not nedishonour to him, Treacher v. Hinton, 4 B. & A. 413.

cessary.

144. If the holder of a bill looks to the indorser for payment, it is Notice to inincumbent on him to give notice of the dishonour of the bill, other- dorser necessary. wise the indorser will not be liable, Blezard v. Hirst, 5 Burr. 2672;

sers.

and if notice of the dishonour regularly circulate back to a distant Where there are indorser or to the drawer, he is liable either to his indorser or to the several indorholder; thus, where the holder on the day of dishonour gave notice to the fifth indorser, and the fifth on the following day to the fourth, he on the day after to the third, the third on the next day to the second, and the second on the following day to the first, held, in an action by the second against the first, that due notice had been given, Hilton v. Shepherd, 6 East, 14, n.; so if the drawer of a bill receives due notice of its dishonour from any person who is a party to it, he is liable upon it to a subsequent indorser, although he had received no notice from him, Jameson v. Swinton, 2 Campb. 373; S. C. 2 Taunt. 373. Want of effects in the hands of the drawee does not in the case of an indorser, as in the case of the drawer, render notice of dishonour to the latter unnecessary, Goodall v. Dolley, 1 T. R. 712; S. P. Wilkes v. Jacks, 1 Peake, 202, 209; but this rule is applicable only to the case of fair transactions; therefore, where the indorser knows that the acceptor is insolvent at the time that he gives the indorsement, he is not intitled to notice, De Berdt v. Atkinson, 2 H. Bl. 336; but see Smith v. Beckett, 13 East, 187.

6. Consequence of Neglect to give Notice.

drawer &c.

145. Want of due notice of dishonour discharges the drawer and Discharge of indorser from all liability, whether on the bill or on the consideration for which the bill was paid, Bridges v. Berry, 3 Taunt. 130; and the want of notice is a complete defence to the action; and evidence tending to shew that the defendant was not prejudiced thereby, is inadmissible, except in an action against the drawer who had no effects in the hands of the drawee, Dennis v. Morrice, 3 Esp. 158; S. P. Hill v. Heap, D. & R. N. P. C. 59. Where there are several indorsers to a bill, and one of them is guilty of laches, that discharges all antecedent parties, Marsh v. Maxwell, 2 Camp. 210, n.

7. Excuse and Waiver of Notice.

146. Death, or any dangerous accident rendering notice impossible, Excusing notice.

will excuse it, Turner v. Leech, Chitt. 213; so notice need not be given, if the bill is on an insufficient stamp, Cundy v. Marriott, 1 B. & Ad. 699; but destruction of the bill will be no excuse for neglect of notice, Thackray v. Blackett, 3 Campb. 164; nor the insolvency of the acceptor, ib.; Dennis v. Morrice, 3 Esp. 158; nor the fact of his having told the drawer that he would not pay the bill, Baker v. Birch, 3 Campb. 107; nor an agreement between the parties that the instrument shall not be payable till after a certain event, Free v. Hawkins, 8 Taunt. 92; S. C. 1 J. B. Moore, 535; S. C. Holt's N. P. C. 550. As to drawers not having effects in the drawee's hands, see ante, sect. 141.

147. A subsequent promise by the indorser to pay is not a waiver of the objection for want of notice, if made in ignorance that he has been discharged by such neglect, Blezard v. Hirst, 5 Burr. 2670, recognized in Goodall v. Dolley, 1 T. R. 712; Pickin v. Graham, 1 Cr. & M. 728; sed secus, where a party has full knowledge of the circumstances, Lundie v. Robertson, 7 East, 231, recognized in Jones v. Morgan; and since the new rules, which do not affect the question, in Croxon v. Morgan, 5 M. & W. 5; and as to what is evidence of waiver of the objection, see Hopley v. Dufresne, 15 East, 275; but where an eleventh indorser, discharged by the laches of the holder, paid the bill in his own wrong, held, that he could not recover from the defendant an eighth indorser, or any of the prior parties, who were also discharged, Turner v. Leach, 4 B. & A. 451.

XI. PROTEST.

148. A protest is a minute of the non-acceptance or non-payment of a bill of exchange, drawn up by a notary public, and accompanied by a solemn declaration on the part of the holder against any loss to be sustained thereby; which by the law merchant in the case of foreign bills is an essential part of their constitution, but in regard to inland bills of a certain description and amount, has been rendered necessary only by the 9 & 10 W. 3, c. 17; 3 & 4 Ann. c. 9, s. 4. These statutes do not apply to inland bills payable after sight, Leftley v. Mills, 4 T. R. 170; and the principal and interest are recoverable, although no protest has been made, even in the case of inland bills, to which the statutes apply, Windle v. Andrews, 2 B. & A. 696, recognizing Lumley v. Palmer, 2 Str. 1000; see further Dig. p. ii. tit. BILLS (EXCHange).

149. Foreign as well as inland bills of exchange are usually presented for acceptance to the drawee by the holder or his agent; and if not accepted or paid, foreign bills are sent to a notary public,

pre

Bills of Exchange.

who, on the same day, again presents the bill, or causes it to be
sented; and, in case of a second refusal, makes a minute, consisting
of his initials, the day, month and year, and the reason, if assigned,
for the refusal, which is termed noting, from which the notary may Noting.
afterwards draw up a formal protest at his leisure, Bull. N. P. 272.
The noting is, per se, of no legal effect, Rogers v. Stephens, 2 T. R.
713; but it is a necessary preliminary to protesting, Leftley v. Mills,
ub. sup.; Chaters v. Bell, 4 Esp. 48. It is said in Leftley v. Mills,
ub. sup. that presentment ought to be made by the notary himself
and not his clerk; but it seems to be otherwise in practice; and there
is no decision on the point, Brooke on the Office of Notary, cited
Selw. N. P. 338, n., 10th ed.

test.

150. If the drawer resided abroad, it was at one time thought that Notice of proa copy, or some memorial of the protest, ought to accompany the notice of dishonour, Goosbrey v. Mead, Gilb. Ev. p. 79; Bull. N. P. 272; but this case was overruled in Cromwell v. Hynson, 2 Esp. 511; and Robins v. Gibson, 3 Campb. 334; S. C. 1 M. & S. 288, both which cases are recognized in Goodman v. Harvey, 4 Ad. & Ell. 870; 6 Nev. & Man. 372.

better security.

151. Besides the protest for non-acceptance and non-payment, the Protest for holder may protest for better security; that is, where the acceptor becomes insolvent, or where his credit is openly impeached before the bill falls due, the holder causes a notary to demand better security; and, on refusal, gets the bill protested, and notice sent to an antecedent party; but he cannot bring any action until the bill falls due, Marius, 27; Anon. 1 Ld. Raym. 743.

is

honour.

152. Where a bill is either accepted or paid for honour, it must In case of acalways be preceded by a protest, or the party to whose use money ceptance for paid will not be liable to any action for its recovery, Vandewall v. Tyrrell, Mood. & Malk. 87; see further, ante, sect.

should be made.

153. A bill is usually protested for non-acceptance or non-payment Where protest in the place where the dishonour occurred, see Mitchell v. Baring, 10 B. & C. 4; and by the 2 & 3 W. 4, c. 98, where a bill is made payable at a place other than drawee's residence, and is not accepted on presentment, it may, without further presentment, be protested in the place where it has been made payable, see further, Dig. p. ii. tit. BILLS (EXCHANGE).

154. In an action against the drawer of a foreign bill payable after Proof of protest. sight, a protest must be proved, Gale v. Walsh, 5 T. R. 239. Proof of the noting alone is not sufficient, Rogers v. Stephens, ub. sup.; and it must be averred as well as proved; but if the drawer had no effects, or probability of effects, in the hands of the drawee, such proof

Bills of Exchange.

Stamp on pro

test.

Form of action.

Staying pro. ceeding.

Effect of the new rules.

as to variances.

is excused, Legge v. Thorp, 12 East, 17; S. C. 2 Campb. 300; so if the drawer has admitted his liability by promising to pay, Gibbon v. Coggan, 2 Campb. 188, recognized in Patterson v. Beecher, 6 J. B. Moore, 319. To intitle the indorsee of an inland bill to recover interest from the drawer, it is not necessary to prove protest for nonpayment, Windle v. Andrews, 2 B. & A. 696; but if protest be set out, it must be proved, Bonlager v. Talleyrand, 2 Esp. 550. In an action on a foreign bill, the dishonour will be proved by producing the notarial protest under seal; but such a protest is no evidence that a foreign bill has been presented for payment in England, Chesmer v. Noyes, 4 Campb. 129.

155. Protest of any bill of exchange or promissory note for any sum of money not amounting to 20l., is, by 55 G. 3, c. 184, liable to a stamp duty of 2s.; amounting to 20l. and not to 100l., 3s.; amounting to 1007. and not to 5007., 5s.; amounting to 500l. or upwards,

10s.

XII. REMEDY BY ACTION ON BILLS.

156. Payment of a bill may be enforced by a special action of assumpsit, the usual remedy; although, where there is a privity be tween the parties, as between the drawer and the acceptor or the payee, it may be by action of debt, Priddy v. Henbrey, 1 B. & C. 674; S. C. 3 D. & R. 165. It may be brought by different parties at the same time; but the court, even in the case of an acceptor, will, by a late rule of court, stay proceedings on payment of the debt and costs, R. T. 1 Vict.

157. Formerly the declaration extended to a great length; but by the new rules concise forms are given on bills and notes, also as to pleading under the new rules, see Jervis's New Rules, 4th ed.; Wordsworth's New Rules, 2d ed.; Selwin's N. P. 10th ed.; so Of 9 G. 4, c. 15, before the 9 G. 4, c. 15 (see Dig. p. iii. tit. LIMITATIONS), nonsuits were very frequent, on the ground of variances between the instru ment as set forth in the declaration, and that produced in evidence, Of 3 & 4 W. 4, Selw. N. P.; so before the 3 & 4 W. 4, c. 42, s. 12, it was not sufficient to state merely the initials of the Christian name of a defendant, although the initials only appeared on the bill, Reynolds v. Hankin, 4 B. & A. 537, overruling Howell v. Colman, 2 B. & P. 466.

c. 41, as to

initials.

Defences to the action.

In case of bill

being lost &c.

158. Where a party thinks proper to resist payment of a bill, he may rest his defence on a variety of grounds, as in the case of a bill being lost, stolen or destroyed.

It is a good defence to an action on a bill that it was not produced or shewn to be lost or destroyed, though the party promised to pay

Bills of Exchange.

it, Powell v. Roach, 6 Esp. 76; and where the instrument is in such a state that it is transferable by delivery, and may therefore get into the hands of a bonâ fide holder, and for valuable consideration, the loser cannot, in that case, recover upon it, Pierson v. Hutchinson, 2 Campb. 211; Mayor v. Johnson, 3 Campb. 324; if, however, an In case of foracceptor pay one who derives his title through a forgery, that will gery. not discharge him, Esdaile v. Lanauze, 1 Y. & Coll. 394; Johnson v. Windle, 3 Bing. N. C. 225.

In an action against the acceptor by an indorsee, it is no defence In case of inthat the drawers, who were also the indorsers, were infants, Taylor fancy. v. Croker, 4 Esp. 187; or that the payee was an infant, Grey v. Cooper, 3 Dougl. 65.

satisfaction.

As a rule, payment cannot afford a defence, unless it be made to the Payment and holder and real proprietor of the bill; for payment to any other is no discharge to the acceptor, except in the case of a bona fide holder of a lost bill, Pierson v. Hutchinson, ub. sup.; see also further ante,

sect. 113. As to the defence on the ground of indulgence shewn to Indulgence, &c. parties, and want of notice, &c. see ante, sect. 17, 27, 145; also on

the ground of want of consideration, or of an illegal consideration, see Consideration. ante, sect. 70 et seq.

tations.

The Statute of Limitations is a good plea in equity as well as at Statute of Limnilaw (see Dig. p. iii. tit. LIMITATIONS), and the statute begins to run on a bill or note not from the time the bill is drawn, but from the time it falls due, Wittersheim v. Lady Carlisle, 1 H. Bl. 631; unless the bill be payable at or after sight, in which case the statute begins to run from the time presentment is made, Holmes v. Kerrison, 2 Taunt. 323; or it be payable on demand, in which case the statute runs from the date of the instrument, and not from the time of the demand, Christie v. Fonsick, Selw. N. P. 352, 10th ed.; sed aliter if payable at a certain time, as one month, after demand, Thorpe v. Coombe, Ry. & Mood. 388; see also Norton v. Ellam, 2 M. & W. 461. As to promises or part payments, or indorsements of payments, to take the case out of the statute under 9 G. 4, c. 14, see Dig. p. iii. tit. LIMITATIONS.