the drawer has no effects in the hands of the drawee, no notice of dishonor is necessary.(g) The reason given for this decision by one of the judges (h) is, that the drawing under such circumstances is a fraud on the part of the drawer, and deprives him of the usual right to notice. The reason given by another judge (i) is, that the drawer cannot possibly be injured by want of notice, and that he has no right to draw or to expect payment.

(g) Bickerdike v. Bollman, 1 T. R. 405. The drawer was indebted to the drawee, in this case, to a large amount. The bill was due Oct. 18th, and presented on that day for payment, and no notice of the refusal was given. The bill does not appear to have been accepted. This case is affirmed and recognized in Goodall v. Dolley, 1 T. R. 712, and Rogers v. Stevens, 2 id. 713. The question was raised in Gale v. Walsh, 5 id. 239.

(h) Bickerdike v. Bollman, 1 T. R. 405, Ashhurst, J., who said: "As to the general rule, it has never been disputed that the want of notice to the drawer, after the dishonor of a bill, is tantamount to payment by him; but that rule is not without exceptions, and particularly in the case mentioned by the plaintiff's counsel, that notice is not necessary to be given where the drawer has no effects in the hands of the drawee, for it is a fraud in itself, and if that can be proved, the notice may be dispensed with." Fraud was also said to be the reason of the rule laid down in Bickerdike v. Bollman, by Lord Alvanley, C. J.; Chambre and Heath, JJ., in Clegg v. Cotton, 3 Bos. & P. 239; Hosmer, J., Buck v. Cotton, 2 Conn. 126; Sharkey, C. J., Cook v. Martin, 5 Smedes & M. 379; Swan, J., Miser v. Trovinger, 7 Ohio State, 281. Mr. Wallace, in his note in 2 Smith L C. 22, says that fraud is the “reason and limit of the exception." He also says that all the cases in which demand and notice are not requisite to charge the drawer or indorser are cases of fraud. But this is clearly incorrect, for we shall have occasion to mention excuses which have nothing whatever to do with fraud.

(i) Bickerdike v. Bollman, 1 T. R. 405, Buller, J., who said: "On the second trial of the cause of Tindal v. Brown, 1 T. R. 167, before me at Guildhall, the jury told me they found their verdict for the plaintiff, on the ground that it had not appeared from the evidence that any injury had arisen to the party from want of notice. In consequence of which, upon the subsequent trial, I told the jury that, where a bill was accepted, it was prima facie evidence that there were effects of the drawer in the hands of the acceptor. The mistake of the jury on the former occasion had arisen from their taking it for granted that the drawer had not been injured by the want of notice, because he had not proved it, whereas that proof lay on the plaintiff to produce. And upon my mentioning this matter to the court, they thought that, if there were no effects in the hands of the acceptor, that would vary the question very much, as the drawer could not be hurt. The law requires notice to be given for this reason, because it is presumed that the bill is drawn on account of the drawee's having effects of the drawer in his hands; and if the latter has notice that the bill is not accepted, or not paid. he may withdraw them immediately. But if he has no effects in the other's hands, then he cannot be injured for want of notice. Soon after I sat on this bench, I tried a cause at Guildhall, on a bill of exchange, which was either drawn or accepted by a person residing in Holland; and a full special jury, under my direction, found a verdict for the plaintiff, notwithstanding no notice had been given to the drawer of the bill's having been dishonored; because he had no effects in the hands of the person on whom the bill was drawn. That verdict never was objected to; and if it be proved on

It has been the subject of frequent regret on the part of many eminent English judges,(j) that the rule requiring strict notice in all cases was ever infringed upon; and while recognizing the authority of the original case, they have declared that it is not to be extended.(k)

In fact, it has been remarked, that in their desire to confine the operation of the exception within the smallest practicable limit,

the part of the plaintiff, that, from the time the bill was drawn till the time it became due, the drawee never had any effects of the drawer in his hands, I think notice to the drawer is not necessary; for he must know whether he had effects in the hands of the drawee or not; and if he had none, he had no right to draw upon him, and to accept payment from him; nor can he be injured by the non-payment of the bill, or the want of notice that it has been dishonored." Absence of the possibility of injury is given as the reason for the exception by Buller, J., in Goodall v. Dolley, 1 T. R. 712, 714; Lord Ellenborough, C. J., Legge v. Thorpe, 2 Camp. 310; Blackhan v. Doren, 2 id. 503; Lord Denman, C. J., Terry v. Parker, 6 A. & E. 502; Thompson, J., Hoffman v. Smith, 1 Caines, 157; Boyle, C. J., Ralston v. Bullitts, 3 Bibb, 261, 263; Dorsey, J., Eichelberger v. Finley, 7 Harris & J. 381, infra, p. 535, note l.

(j) Lord Ellenborough, C. J., Blackhan v. Doren, 2 Camp. 503; Legge v. Thorpe, id. 310; Orr v. Maginnis, 7 East, 359, where he said that it had been regretted by "a very learned person who was counsel for the plaintiff in that case." This was said to refer to Chambre, J., in 7 East, 362, note a, and to Lord Eldon, in 12 id. 173, note d. Chambre was counsel for the plaintiffs, as appears by the report of the case, 1 T. R. 406. Le Blanc, J., Claridge v. Dalton, 4 Maule & S. 226; Abbott, C. J, Cory v. Scott, 3 B. & Ald. 619; Lord Alvanley, C. J., Clegg v. Cotton, Bos. & P. 239; Bosanquet, J., Lafitte v. Slatter, 6 Bing. 623; Lord Tindal, C. J., id., who said it was " an excepted case"; Parke, B., Carter v. Flower, 16 M. & W. 743, 748. So also Lewis, C. J., Case v. Morris, 31 Penn. State, 100, 104. In Ex parte Heath, 2 Ves. & B. 240, Lord Eldon said: "I have often lamented the consequences of the distinction, introduced in modern times, as to the necessity of giving notice of the non-payment or non-acceptance of a bill of exchange, whether the acceptor had or had not effects; and I have the satisfaction of finding that my opinion has been adopted by the courts of law. According to the old rule, a bill of exchange, purporting upon the face of it to be for value received, the implication of law from the acceptance was, that the acceptor had effects. Then they came to this general doctrine, that it is not necessary for the holder to give notice, if he can show that the acceptor had no effects. The first objection is, who is to decide whether there are effects or not? In the simple case, where there is nothing but that particular bill, and no other dealing between them, there is no difficulty; but if there are complicated engagements, and various accommodation transactions, no one can say whether there are effects or not."

(k) Lord Ellenborough, C. J., in Thackray v. Blackett, 3 Camp. 164, said: "Judges of great authority have doubted the propriety of the rule laid down in Bickerdike v. Bollman, and I certainly will not give it any extension." So in Orr v. Maginnis, 7 East, 359, the same judge said: "I shall anxiously resist the further extension of the exception." And in Rucker v. Hiller, 16 East, 43: "I know the opinion of my Lord Chancellor Eldon to be, that the doctrine of that case ought not to be pushed further." So Parke, B., Carter v. Flower, 16 M. & W. 743, 748; Lewis, C. J., Case v. Morris. 31 Penn. State, 100, 104.

they have frittered it away until there is but little of it left; and the reasons upon which they rest in their decisions are so various and unsatisfactory, that it is a task of no inconsiderable difficulty to extract from them any certain rule of law by which this class of cases may be readily distinguished.()

The true test, in our opinion, in each case, is this: Had the drawer, under the circumstances of the case, a right to draw? This depends upon the fact whether he had a reasonable ground to expect that the bill would be honored, or not. If he had such reason to expect it to be honored, he is entitled to a regular présentment, and notice of refusal to accept to pay; and if not so entitled, he cannot complain either for negligence in

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(1) Dorsey, J., Eichelberger v. Finley, 7 Harris & J. 381, who, after referring to the discrepancy in the reasons as given by the English judges, and stating that the cases of Legge . Thorpe, 12 East, 171, 2 Camp. 310, and Claridge v. Dalton, 4 Maule & S. 226, are inconsistent with the reason of fraud, as the conduct of the defendants, in those cases, is free from the slightest imputation of fraud," continues : The true rationale of the rule introduced in Bickerdike v. Bollman is that given by Buller, J., ' that the drawer could not be injured by the want of notice.' Why not injured by the want of notice? Because the object of notice is to let the drawer know that his bill has been dishonored, and this he already knew from the nature of the circumstances connected with it. To require a party to be notified of a fact of which he has already a perfect knowledge does appear to be a solecism not at all in harmony with the beautiful system of reasoning and good sense which pervades every branch of legal science. The many distinguished judges who have disapproved of this rule, in expressing their regrets at its introduction, correctly state it to be the substitution of knowledge for notice'; and yet, when called upon to apply the principle to the facts in each particular case, such has been the anxiety to limit the extent of its application, such the desire to ingraft upon it restrictions and discriminations by which future cases may evade its operation, that in subtilties and refinements the essence and meaning of the rule has been almost wholly lost sight of. Of this, the case of Orr v. Maginnis, 7 East, 359, is a memorable illustration." We doubt whether the true reason is here stated. The drawer cannot certainly know that the bill may be dishonored, for some one might accept for his honor, or for that of the drawee. This is as good a reason as that given for not considering the holder excused from making a due presentment where the indorser was aware when he put his name upon a note that the maker was hopelessly insolvent; which is, as we have already seen, that some of his friends may provide him with the means to take up the note. Also, because it is well settled, as will appear hereafter, that knowledge of dishonor not obtained by a party who has a right to give notice is not equivalent to notice. It is also doubtful whether the absence of any possibility of injury is the proper reason. Because, according to what would seem to be the opinions of some judges, even if a drawer, without funds, who has no reason nor right to expect that the bill will be honored, can prove actual injury, he may be discharged by neglect in making demand and in giving notice; which could not be true unless there was still some possibility of injury. But what we consider to be the reason for objecting to the doctrine laid down here is, that we doubt, as will presently appear, whether the fact that the drawer has been injured, under such circumstances, would avail him.

presenting and in forwarding notice, or for an entire neglect to do either.(m)

The "reasonable grounds" required by law are not such as would excite an idle hope, a wild expectation, or a remote probability,

(m) In French v. Bank of Columbia, 4 Cranch, 141, Marshall, C. J. said: "Notice must immediately be given to the drawer that his bill is dishonored by the drawee, because he is presumed to have effects in the hands of the drawee, in consequence of which the drawee ought to pay the bill, and that he may sustain an injury by acting on the presumption that the bill is actually paid. The law requires this notice, not merely as an indemnity against actual injury, but as a security against a possible injury, which may result from the laches of the holder of the bill. To this security, then, it would seem the drawer ought to remain entitled, unless his case be such as to take him out of the reason of the rule. A drawer who has no effects in the hands of the drawee is said to be without the reason of the rule, and therefore to form an exception to it. This has been laid down in the books as a positive qualification of the rule, but has seldom been so laid down, except in cases where, in point of fact, the drawer had no right to expect that his bill would be honored, and could sustain no injury by the neglect of the holder to give notice of its being dishonored. In reason, it would seem that in such cases only can the exception be admitted, and that the necessity of notice ought to be dispensed with only in those cases where notice must be unnecessary or immaterial to the drawer. The reasoning of the judges in most of the cases which have been cited would seem to warrant this restriction of the exception. The case of Bickerdike v. Bollman, 1 T. R. 405, was a bill drawn by a debtor on his creditor, without a single accompanying circumstance which could raise an expectation that the bill would be accepted or paid. Notice in this case was declared to be unnecessary. Justice Ashhurst gives as a reason for this opinion, that the drawing was in itself a fraud. This reason must be considered as additional to the general ground on which the case was placed in the argument, which was, that the want of notice could not possibly affect the drawer. The particular reason given by Justice Ashhurst for his opinion is clearly inapplicable to any case in which the drawer was justified in drawing. In the opinion of Justice Buller, some general reasoning is introduced, from which it is fairly deducible that he considered the drawer as having no right to expect that the bill would be paid, and as being liable to no injury from the want of notice, and that these were the true grounds of the exception" After reviewing the cases of Goodall v. Dolley, 1 T. R. 712, and Rogers v. Stevens, 2 id. 713, and stating that the reason given by Lord Kenyon in the latter was “because the drawer must know that he had no right to draw on the drawee," the learned judge continues : It would seem to be the fair construction of these cases, that a person having a right to draw in consequence of engagements between himself and the drawee, or in consequence of consignments made to the drawee, or from any other cause, ought to be considered as drawing upon funds in the hands of the drawee, and therefore as not coming within the exception to the gen eral rule. The transaction cannot be denominated a fraud, for in such case it is a fair commercial transaction. Neither can it be truly said that he had no right to expect his bill would be paid, for a person authorized to draw must expect his draft will be honored. Neither can it be said that he has virtual notice of the protest, and that actual notice is useless, and the want of it can do him no injury; for this is only true when at the time of drawing the drawer has no reason to expect that his bil will be paid. A person having a right to draw, and a fair right to expect that I is bili

.

that the bill might be honored; but such as create a full expec tation, and a strong probability, of its payment; such, indeed, as would induce a merchant of common prudence, and ordinary

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See Adams v. Darby, 28 Misso.

will be honored, would not come within the reason of the exception, and therefore, it may well be contended, ought not to be brought within the exception itself." The following cases, as to presentment, support the view that want of funds and absence of reasonable grounds to expect the honor of the bill constitute an excuse. Terry v. Parker, 6 A. & E. 502, 1 Nev. & P. 752, where the drawer was held, though presentment was not made to the drawee till two days after maturity. The bill was payable six months from date, and the presentment for acceptance and payment had probably become merged. Parsons, C. J., Bond v. Farnham, 5 Mass 171; Kinsley v. Robinson, 21 Pick. 327, where the bill had been accepted, and a presentment ten days after maturity was excused; Cowen, J., Harker v. Anderson, 21 Wend. 372. See Franklin v. Vanderpool, 1 Hall, 78 In Dollfus v. Frosch, 1 Denio, 367, presentment for payment was made three days before maturity, and the drawer was held. The bill was 'non-acceptable." In Mobley v. Clark, 28 Barb. 390, the drawer of a bill which had been duly presented for acceptance and accepted was held, although there was no presentment for payment. See Wood v. Gibbs, 35 Miss. 559, where a neglect to present a sight bill within a reasonable time was excused. The evidence of want of funds in this case was an admission of the fact by the drawer 162 But Radcliff, J., in Cruger v. Armstrong, 3 Johns. Cas. 5, said: "The want of funds may excuse the want of notice of the non-payment, but it cannot be a reason to dispense with the presentment, or demand of payment. The drawee without funds might have paid it for the honor of the drawer." The same was held in English . Wall, 12 Rob. La. 132, where the bill was protested prematurely, and the drawer was discharged. In the following cases the same rule was applied as regards notice of non-acceptance, there being no difference between the case of laches in giving notice, and that where no notice is given. Dickins v. Beal, 10 Pet. 572; Baker v. Gallagher, 1 Wash. C. C. 461; Read v. Wilkinson, 2 id. 514; Warder v. Tucker, 7 Mass 449. See Stanton v. Blossom, 14 id. 116; Van Wart . Smith, 1 Wend. 219; Cowen, J., Commercial Bank v. Hughes, 17 id. 94, 97; Wollenweber v. Ketterlinus, 17 Penn. State, 389; Cathell v. Goodwin, 1 Harris & G. 468; Eichelberger v. Finley, 7 Harris & J 381; Oliver v. Bank of Tennessee, 11 Humph. 74; Porter, J., Hill v. Martin, 12 Mart. La. 177; Benoist v. Creditors, 18 La. 522; Anderson . Folger, 11 La. Ann. 269; Whaley v. Houston, 12 id. 585; Ralston v. Bullitts, 3 Bibb, 261; Farmers' Bank v. Vanmeter, 4 Rand. Va. 553; Hubble v. Fogartie, 3 Rich. 413; Durrum Hendrick, 4 Texas, 495. In the following cases the rule was applied with respect to notice of non-payment. Rhett v. Poe, 2 How. 457; Hopkirk v. Page, 2 Brock. 20; Valk v. Simmons. 4 Mason, 113; Allen v. King, 4 McLean, 128. See Savage v. Merle, 5 Pick. 83; Hoffman v. Smith, 1 Caines, 157; Radcliff, J., Cruger v. Armstrong, 3 Johns. Cas. 5; Cowen, J., Commercial Bank v. Hughes, 17 Wend. 94; Dollfus v. Frosch, 1 Denio, 367; Mobley v. Clark, 28 Barb. 390; Case v. Morris, 31 Penn. State, 100; Archer, J, Clopper v. Union Bank, 7 Harris & J. 92, 102; Bloodgood v. Hawthorn, 9 La. 124; Benoist v. Creditors, 18 id. 522; Williams v. Brashear, 19 id. 370, 16 id. 77; English v. Wall, 12 Rob. La. 132; Gillespie v. Cammack, 3 La. Ann. 248; Whaley v. Houston, 12 id. 585; Blankenship v. Rogers, 10 Ind. 333; Miser v. Trovinger, 7 Ohio State, 281; Oliver v. Bank of Tennes see, 11 Humph. 74; Spear v. Atkinson, 1 Ired. 262; Cook v. Martin, 5 Smedes & M. ✔79; Armstrong v Gay, 1 Stew. Ala. 175; Yongue v. Ruff, 3 Strob. L. 311; Boulager