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5thly. To whom

notice must be given.

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and notice should in general be given to a person who has guaranteed the payment of the bill. When the party entitled to notice is abroad at the time of the dishonour, if he have a place of residence in England, it will be sufficient to leave notice of non-acceptance at that place, and a demand of acceptance or payment from his wife, or servant, would in such case be regular'.

It was once thought, that notice of non-acceptance must in all cases be given to the drawer of the bill, and demand of payment made of him, or that in default thereof the indorser would be discharged, notwithstanding they had regular notice. This opinion, however, so far as it related to foreign bills, was over-ruled in the case of Bromley v. Frazier 3; and in its relation to inland bills, in the case of Heylin and others against Adamson*, and as to cheques on bankers in Richford v. Ridge, on the principle, that to require a demand of the drawer, would be laying such a clog upón bills, as would deter every person from taking them, since the drawer may perhaps live abroad; besides the acceptor is primarily liable, and as the act of indorsing a bill is equivalent to making a new bill, the indorser thereby undertakes as well as the drawer, that the drawee shall honour the bill, and the holder may consequently immediately resort to him, without calling on any of the other parties.

With respect to inland bills protested for non-acceptance, the 3 & 4 Anne, c. 9, directs the protest or no

Ante, 264, 5.-Bayl. 138, 9. When notice need not be given of a substituted bill, see 3 M. & S. 362. 7 Taunt. 312.

Cromwell v. Hynson, 2 Esp. Rep. 511, 512.-Walwyn v. St. Quintin, 1 Bos. & Pul. 652; but see 5 Esp. Rep. 175.

3 Bromley v. Frazier, 1 Stra. 441.-Selw. N. P. 4th ed. 324. Heylin v. Adamson, 2 Burr. 669.-Pardo v. Fuller, Com. Rep. 579.-Bromley v. Frazier, 1 Stra. 441. Selw. N. P. 4th ed. 324.

52 Campb. 539, per Lord Ellenborough. The holder of a cheque is not bound to give notice of its dishonour to the drawer for the purpose of charging the person from whom he received it. He does enough if he presents it with due diligence to the banker on whom it is drawn, and gives due notice of its dishonour to those only against whom he seeks his remedy.

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notice must be

tice thereof to be given to the person from whom the 5thly. To whom bill was received'. The preceding observation relative given, to notice from the holder enuring to the benefit of the antecedent parties here applies. Notice to one of several partners, joint indorsers, is notice to all, and if one of several drawers be also the acceptor, and there be no fraud in the transaction, no notice in fact is necessary to the other drawers 3. Nor is it necessary to give notice to a party who has by his conduct dispensed with it, as by engaging to call on the holder, and ascertain whether the acceptor has paid the bill.

Et vide Heylin v. Adamson, Burr. 674.

2 Ante, 293, 4.

3 Porthouse V. Parker and others, 1 Campb. 82.—Alderson v. Pope, Id. 404; and see Jacand v. French, 12 East. 317. 322, 3. and per Lord Ellenborough, in Bignold v. Waterhouse, 1 M. & S. 259.— Bayl. 142.

Porthouse v. Parker and others, 1 Campb. 82. This was an action against the drawees of a bill of exchange for £461. 3s. at the suit of the payce. The bill purported to be drawn by one Wood, as the agent of George James and John Parker. There was no proof that Wood had authority from the defendants to draw the bill, but a witness swore that he, as the agent of John Parker, the drawee, and one of the defendants, had accepted it on his account. Lord Ellenborough held, that the bill having been accepted by order of one of the defendants, this was sufficient evidence of its having been regularly drawn; and further that the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove that the defendants had received express notice of the dishonour of the bill, as this must necessarily have been known to one of them, and the knowledge of the one was the knowledge of all. Verdict for the plaintiff.

In Bignold v. Waterhouse, 1 M. & S. 259. Lord Ellenborough said, "It is a general rule indeed, that where several are concerned together in partnership, notice to one is equivalent to notice to all, but that rule presumes that the transaction is bonâ fide. Here, however, the case is different, the agreement is made with one of the defendants for his individual benefit alone, and the others are not parties concerned, not being made privy to the agreement. It was incumbent, therefore, on the plaintiffs, to show that notice was given to the other partners.'

Phipson v. Kneller, 4 Campb. 285. This was an action against the drawer of a bill of exchange, and the question was, whether the plaintiff was excused for not having given him notice of the dishonour of the bill. It was proved that a few days before the bill became due, the defendant called at the counting-house of the plaintiff, whom he knew to be the holder; and being asked the place of his residence, he said he had no regular residence; he was living among his friends, and he would call and see if the bill was paid by the acceptor. Per Lord Ellenborough, this dispensed with notice, and threw upon the defendant himself the duty of enquiring if the bill was paid. Verdict for the plaintiff.

6thly. Of the liability of the parties to a bill on non-acceptance.

The liability of the various parties to a bill, on the dishonour of it by the drawee, may be collected from the previous pages. If the drawee on presentment for acceptance, dishonour the bill, either wholly or partially, the holder may insist on immediate payment by the parties liable to him, as well of the drawer', as of the prior indorsers, or in default thereof, may instantly commence actions against each of them; and though the instrument may be somewhat like a note, yet if it also resemble a bill, and acceptance be refused, an action is immediately sustainable. On the same principle it was decided, that if a man draw a bill and commit an act of bankruptcy, and afterwards the bill be returned for non-acceptance, the debt is contracted before the act of bankruptcy, and may be proved under the commission, which could not have been the case, if the time when notice of non-acceptance was given had been considered as the period when the debt was contracted. So where the defendant, having been arrested, gave the plaintiff a draft for part of the money due, on which he was discharged out of custody, but the draft having been dishonoured, he was re

.1

Ante, 138.-Bayl. 149, 150.-Bright v. Purrier, Bul. N. P. 269, ante, 138.-Mitford v. Mayor, Dougl. 55, ante, 138. But Pothier considers the drawer as merely liable to indemnify the holder against the probable non-payment at maturity, Traite du Contrat de Change, part 1, ch. 4, num. 70.

2

Ballingalls. Gloster, 3 East. 481.-4 Esp. Rep. 268. S. C.Bishop v. Young, 2 Bos. & Pul. 83. n. a.

John Gloster drew a

Ballingalls v. Gloster, 3 East. Rep. 481. bill on Jackson payable to Anthony Gloster's order, and the latter indorsed it to the plaintiffs. Jackson refused acceptance, on which the plaintiffs immediately sued Anthony Gloster without waiting till the bill, which was drawn at ninety days sight, would have been due. The plaintiffs had a verdict, with liberty to the defendant to move for a nonsuit. On a rule nisi accordingly it was urged, that an indorser stood in a situation different from that of a drawer, and that although a drawer might be sued immediately on non-acceptance, an indorser could not, until the expiration of the time limited for the payment of the bill. But the court was clear that the case of an indorser was not distinguishable from that of a drawer, and that every indorser was a new drawer. Rule discharged.

3 Allen v. Mawras, 4 Campb. 115, ante, 28.

Macarty v. Barrow, 2 Stra. 949.-7 East. 437. S. C.-Chilton г. Whiffin, 3 Wils. 16.

bility of the par

ties to a bill on

non-acceptance.

taken upon the same writ, it was decided that the pro- 6thly. Of the liaceedings were regular and justifiable; and Lord Kenyon said, that in cases of this kind, if the bill which is given in payment do not turn out to be productive, it is not that which it purported to be, and that which the party receiving it expected, and therefore he may consider it as a nullity, and act as if no such bill had been given': and in a recent case where a bill given in payment for goods sold was refused acceptance, it was held that the payee having declared against the drawer on the bill, and joined counts for goods sold, may treat the bill as a nullity, and recover his demand on the latter counts, although the credit on the bill be not expired, and that it is sufficient in such an action to prove a presentment to the drawee for acceptance, without shewing that the bill was protested for nonacceptance, or that the drawer had notice of the dishonour2.

It seems, however, that the drawer and indorser have a reasonable time allowed them to pay the bill, after notice of the dishonour, and that the circumstance of their not paying the amount immediately they received such notice, will not preclude them from pleading a tender, provided they offer to pay the amount on the same day, and before a writ has been issued, though the acceptor must pay the bill on presentment, and cannot plead a subsequent tender 3.

2

'Puckford v. Maxwell, 6 T. R. 52. ante, 124, 5.

Hickley v. Hardy, 1 Moore Rep. 61; but quære as to the latter point.

3 Walker v. Barnes, 1 Marsh. 36.—5 Taunt. 240, S. C.-Hume v. Peploe, 8 East. 168.

Walker v. Barnes, 1 Marsh. 36. The drawer of a bill is only bound to pay within reasonable time after receiving notice of its being dishonoured, therefore where he received notice the day after the bill became due, a tender on the following day was held to be in time. Per. Mansfield, C. J. This is an action by the indorsee of a bill of exchange against the drawer, whose undertaking is to pay the holder on failure by the acceptor. When the bill is dishonoured the drawer cannot find out by inspiration who is the holder, and therefore cannot pay it till he has notice of the dishonour. When he has received notice, he is bound to pay within reasonable time, and if he do not will be answerable

6thly. Of the lia

bility of the parties to a bill on

When due notice of the non-acceptance has been given to the drawer and indorsers, it is not necessary mon-acceptance. afterwards to present the bill for payment, or if such presentment be made to give notice of the dishonour'.

With respect to the amount of the sum which the drawer and indorsers are bound to pay, they are liable, where a bill has been protested, not only to the payment of the principal sum, but to damages, interest, &c.2 Where A. deposited a sum of money at the banking-house of B. in Paris, for which B. gave him his note "payable in Paris;" "or at the choice of the "bearer, at the Union Bank, in Dover, or at B.'s usual "residence in London, according to the course of ex

change upon Paris;" and after this note was given, the direct course of exchange between London and Paris ceased altogether, having been, previously to its total cessation, extremely low; the note was at a subsequent period presented for acceptance and payment at the residence of B. in London, at which time there was a circuitous course of exchange upon Paris by way of Hamburgh, and it was holden, that A. was entitled to recover upon the note according to such circuitous course of exchange upon Paris, at the time when the note was presented 3. Where, however, acceptance or payment have been rendered illegal by an act of this country, the drawer, &c. may not be liable to be sued on the bill; and we have already seen, that if a person

for damages. The bill became due on the 11th, on the 12th he received a note from the plaintiff's attorney, informing him of the dishonour, and on the 13th he tenders. Is not this a reasonable compliance with his undertaking? No jury could give even a farthing damages.-Rule discharged.

Price v. Dardell, Sittings at Guildhall, London, 11th Dec. 1794, cor. Lord Kenyon, his Lordship said, it is in no case necessary to give notice when it is a second dishonour; and in De La Torre v. Barclay and another, 1 Stark. C. N. P. 7, Lord Ellenborough said, that as the bill had been protested for non-acceptance, a second protest was perfectly gratuitous and unnecessary. See also Forster v. Jurdison, 16 East. 105.

28 & 9 Wm. 3. and 3 & 4 Anne, c. 9. et post, of the verdict and damages.

3 Pollard v. Herries, 3 Bos. & Pul. 335.
Pollard v. Herries, 3 Bos. & Pul. 340.

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