of payment, 5thly. Of And it appears to have been considered, that if the holder of a check, the effect immediately after the death of the drawer, and before the banker is apand of pay prized of it, receive the amount, he will not be liable to refund, though ment by in general the death of the drawer of the check is a countermand of the mistake. banker's authority to pay."(591) [ 307 ] If bankers pay a cancelled check, drawn by a customer, under circumstances which ought to have excited their suspicion, and induced them to make inquiries before paying it, or if they pay a check after notice from their customer not to do so, they cannot take credit for the amount in their accounts. Where an action having been brought against the acceptor of a bill of exchange, it was agreed between the parties that the defendant should pay the costs, renew the bill, and give a warrant of attorney to secure the debt, and the defendant gave the warrant of attorney and renewed the bill, but did not pay the costs, it was held that the plaintiff might bring a fresh action on the first bill while the second was outstanding in the hands of an indorsee." Though a bequest by a debtor to his creditor of a legacy greater than the amount of the debt, will in general be deemed a satisfaction for such debt, it has been held, that a negotiable bill of exchange or note is not satisfied by a legacy ;' (392) but in another case it was held, that a debt on a note was discharged by an entry in the testator's hand, that the debtor should pay no interest, nor should he, the testator, take the principal, unless greatly distressed, it being proved that the testator died in affluent circumstances.* Tate v. Hilbert, 2 Ves. jun. 118. f Scholey v. Ramsbottom, 2 Campb. 485. Et Pothier Traite du Contrat de Change, part 1. c. 4. s. 99. et seq. Scholey v. Ramsbottom and others, 2 Campb. 485. The defendants were bankers, with whom the plaintiff kept cash. This was an action to recover the balance of his account, and the only question was, whether they were entitled to take credit for a sum of 3661. On Wednesday, the 20th September, 1809, the plaintiff being indebted to Messrs. Miller and Co. drew a check in their favour, in the following form: "London, Sept. 20, 1809. "ROBERT SCHOLEY.” But finding that the sum was incorrect, he tore the check into four pieces, which he threw from him, and drew another in the same form for 3601. The latter was It has been recently de presented for payment, and paid by the defendants the same day. On Monday, the 25th of September, the first check was likewise presented for payment by a person unknown. The four pieces into which it had been torn, were then neatly pasted together upon another slip of paper, but the rents were quite visible, and the face of the check was soiled and dirty. The defendants' clerk paid it however without making any inquiries. Lord Ellenborough was of opinion, that, under these circumstances, bankers were not justified in paying a check, and the jury found a verdict for the plaintiff for 3661. 8 Ante, 148, 9, 281. h Norris v. Aylett, 2 Campb. 329. i Carr v. Eastabrook, 3 Ves. 561. k Aston and others, executors, v. Pye, Common Pleas, Easter Term, 28 Geo. 8. cited in Eldon v. Smyth, 5 Ves. 350. Judgment for defendant, action for 3002., upon a note of hand given by defendant to his uncle, payable twelve months after date. The cause (391) See as to this point, Cutts v. Perkins, 12 Mass. Rep. 206. (392) See on this point Strong v. Williams, 12 Mass. Rep. 391, where it was held, that prima facie as a legacy is to be deemed a bounty, and not a payment of a debt due; though this presumption might be rebutted by circumstances. the effect by cided, that in an action for money had and received by the holder of 5thly. Of a bill of exchange against a person who has received a sum of money of payment, from the acceptor to satisfy it, any defence may be set up which would and of payhave been available if the action had been brought against the acceptor ment himself. In trover for bank-notes, to prove that they belonged to mistake. plaintiff, the evidence was, that they had been delivered out by a banker's clerk (to what person he could not tell) in payment of a check which was payable to the plaintiff or bearer, and this was held to be prima facie evidence of property." If upon a bill becoming due, the party to it requests another to pay the amount out of a particular fund, and the latter agrees to comply with that request, in consequence of which the holder gives up the bill, he will be entitled to seek for payment out of the fund in pursuance of the agreement." the con In general, if on presentment for payment, the drawee of the bill Sect. 3. Of refuse to pay the amount, it is incumbent on the holder to protest it, if the bill be foreign, and whether foreign or inland, to give notice of duct which the dishonour to those parties to whom he means to resort for payment, should puror they will be discharged from their respective obligations. "(393) The conduct which the holder of the bill should pursue on non-payment, is so very similar to that which is to be adopted on refusal to accept, that it is sufficient to refer to the preceding part of the work, and to point out in what respect the conduct, to be adopted on non-payment, differs from that in case of non-acceptance. We may remember that the points to be attended to by the holder, in case of non-acceptance, were arranged under the following heads : First, When notice of non-acceptance is necessary, and what circumstance will excuse the neglect to give it, or waive the consequence of such neglect. Ante, 196 to 215. the holder sue on non payment. Secondly, The mode in which the notice should be given. Ante, [309] 215 to 222. Thirdly, The time when a protest (when necessary) should be made, and when notice should be given. was tried at the Sittings after Trinity Term. Verdict for the plaintiff, subject to the opinion of the court. The case was, Thomas Pye, the uncle, made his will the 17th of August, 1785, and after his death the executors found the following entry: "Henry James Pye pays no interest, nor shall I ever take the principal unless greatly distressed;" which entry bears date subsequent to the will. Upon the case coming to be argued, the court advised a reference to the Ecclesiastical Court, who refused to prove the Ante, 223 to 225. same as a testamentary paper, whereupon 1 Redshaw v. Jackson, 1 Campb. 472. P Ante, 196 to 240. (393) If there be a slight mistake in the description of the note or bill it will not vitiate the notice, if the party would not be led into an error by it. As if in case of a note payable at a bank, where the indorser had no other note but the one described, the time when it became due should be wrongly stated. Smith v. Whiting, 12 Mass. Rep. 6.; or the sum should be mistaken. Reed v. Seixas, 2 John. Cas. 337. Sect. 3. Of the conduet which Fourtly, By whom notice should be given. Ante, 226 to 228. Fifthly, To whom the notice should be given. Ante, 228 to 230. the holder Sixthly, Of the liability of the parties to the bill on receiving notice. should pur- Ante, 230 to 233. sue on non Seventhly, How the consequences of a neglect to give notice may be payment. waived. Ante, 233 to 240. 1st. When non-pay cessary. We will concisely consider in the same order the applicability of the rules already mentioned to the case of non-payment. The necessity of giving notice of non-payment is governed by nearly notice of the same rules as prevail in the case of non-acceptance. Notice, we have seen, ought in general to be given; or the drawer and indorsers ment is ne- will be discharged from all liability. The want of effects of the drawer in the hands of the drawee, will, we have seen, in general excuse the neglect to give due notice to him ; but few other circumstances will have that effect." When the bill has been already protested for nonacceptance, and due notice thereof has been given, though usual it is not necessary to protest for non-payment, or to give notice thereof ;* and after a regular notice of non-payment to the drawer, the engagement of the holder to present the bill again, and his doing so, but omitting to give notice of the second dishonour, will not prejudice his remedy against the drawer on the bill. And persons who are bankers, both for the drawer and acceptor of a bill, and have received it from the drawer and given credit for it in an account between them, if, before it becomes due, they receive directions from the acceptor to stop the payment of it at the place of payment, and do so accordingly, are not bound to give notice of this circumstance to the drawer, the communication of the acceptor being confidential, and it sufficing to give a general notice of non-payment to the drawer. We have seen, that if a note be made payable at a bankers, it is not necessary to give the maker notice of non-payment; and it has been decided, that in an action against the [310 acceptor of a bill payable at a bankers, it is not necessary to prove that notice of the non-payment was given to the acceptor. But an agreement between all the parties to a bill or note, that it should not be put in suit till certain estates were sold, will constitute no excuse for the want of notice of non-payment, for as such an understanding could not have been given in evidence to prevent the holder from suing on the note, so it ought not to be received to excuse the want of due notice. © The other points respecting the necessity for notice of non-payment, and the excuses for the omission will be found, ante, 196 to 215, and 233 to 240. 2dly. Form With respect to the form of the notice of non-payment, and the mode and mode of giving it, the rules relating to non-acceptance here also in general of protest-prevail. In the case of a foreign bill, a protest for non-payment is as ing and giv ing notice. d of protest essential as a protest for non-acceptance, and can, in general, only be 2dly. Form dispensed with by the want of effects of the drawer, in the hands of and mode the drawee. And on non-payment, as well of a foreign as an inland ing and givbill, notice of non-payment must be given. (395) In case of an inland bill, the sending a verbal notice to a merchant's counting-house is sufficient, and if no person be there in the ordinary hours of business, it is not necessary to leave or send a written notice. The protest for non-payment of a foreign bill; which is made by a notary public, varies in point of form, according to the country in which it is made: in England the form of it is as follows: ON THIS DAY, the first of November, in the year of our Lord one thousand eight hundred and six, at the request of A. B. bearer of the original bill of exchange, whereof a true copy is on the other side written, I, Y. Z., of London, notary public, by royal authority duly admitted and sworn, did exhibit the said bill. [Here the presentment is stated, and to whom made, and the reason, if assigned, for non-payment.] Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do solemnly protest as well against the drawer, acceptor, and indorsers of the said bill of exchange, as against all others whom it may concern, for exchange, re-exchange, and all costs, charges, damages, and interest suffered, and to be suffered, for want of payment of the said original bill. Thus done and protested in London aforesaid, in the presence of E. F. [The expenses of noting and protest are then subscribed, for the amount of which, see the Appendix.] By the former regulation of the 44 Geo. 5. c. 98. Schedule A. a[ 311 ] stamp duty of five shillings was imposed on the protest without reference to the amount of the bill, but by the subsequent acts 48 Geo. 3. c. 149, and 55 Geo. 3. c. 184. Schedule A. part 1, title Protest, the duties are as follows: Protest of any bill of exchange or promissory note for any sum of (395) This is true only where there has been a previous acceptance of the bill; for if the bill has been dishonoured on presentment for acceptance, and due notice thereof given to the other parties, no presentment for payment, or notice and protest for non-payment, is in general necessary. CHITTY ON BILLS. 2dly. Form of protest The protest should not bear date before the bill is due,' but as it and mode must, in the case of a foreign bill, be made on the last day of grace,* ing and giv. it must bear date generally on that day; but an inland bill is not to be ing notice. protested till the day after the third day of grace. When an accepted bill is protested for non-payment, Marius recommends the protest to be sent to the drawer or indorser, and the accepted bill to be kept, unless express orders be given by those parties to the contrary, because the protest for non-payment, with the second accepted bill, will be sufficient proof against the drawer, though not against the acceptor." (397) But according to another writer," the drawer or indorser would not be obliged to pay without having the accepted bill delivered up to him, as he would otherwise perhaps have no evidence of the acceptance against the acceptor. Where payment of a non-accepted bill is refused, it is agreed on all hands that there is no risk in sending back the bill with the protest. Where only part of the money for which the bill is payable is tendered, that part may be taken, and the bill must be protested for non-payment of the residue." Previously to the statute 9 & 10 Will. 3. c. 17. no inland bill could be protested for non-payment; but by this statute it is enacted, that all bills of exchange drawn in, or dated at any place in England, for the sum of five pounds or upwards, upon any person in London, or elsewhere in England, in which bills of exchange shall be expressed value received, and payable at a certain number of days, weeks, or months after the date thereof, after presentation and written acceptance, and after the expiration of the days of grace, the holder, or his [312]agent, may cause the bill to be protested by a notary public, and in default of such notary public, by any other substantial person in the place, in the presence of two witnesses; refusal or neglect being first made of due payment of the same which protest shall be made and written under a copy of the bill of exchange, in the words or form following: "Know all men, that I, A. B., on the "the usual place of abode of the said day of at have demanded "payment of the bill, of the which the above is a copy, which the "said did not pay, wherefore I, the said A. B., do hereby "protest the said bill. Dated this day of The act directs that this protest shall, within fourteen days after it is made, be sent, or notice of it the bill was received, who is, upon given, to the party from whom producing such protest, to repay n m Mar. 120. 100. Beawes, pl. 220. Lovelass on Bills, • Mar. 121. P Mar. 68. 85, 86, 87. Walwyn v. St. Quintin, 1 Bos. & Pul. 652. (397) Where one of a set of exchange has been accepted, and protested for non-payment, presenting the protest of the accepted bill together with one of the set, which has neither been accepted nor protested, to the indorser, and a demand of payment will be a sufficient notice to charge him. Kenworth v. Hopkins, 1 John. Ca. 107. And in such case it is not necessary to produce the protested bill at the time of the notice and demand on the indorser. Ibid. And see Lenox v. Levret. 10 Mass. Rep. 1. |