bill. It was argued, that if notice had been given to each successive indorser in the regular course, the defendant would not have received it at an earlier period; but the court held, that the plaintiff had been discharged by the laches of Bennett, and that he could not, by paying the bill, place the prior indorsers in a worse situation than that in which they would otherwise have been. Turner v. Leech, 4 B. & A. 451. If a party receives notice on a Sunday, Christmas-day, or Good Friday, he is in the same situation as if he did not receive it till the following day, and where the notice ought in due course to have been given on one of these days, it is sufficient to give notice on the day following, as was the law before the passing of the statute 7 & 8 Geo. 4. c. 15. See Tassell v. Lewis, 1 Ld. Raym. 743. Wright v. Shawcross, ante, p. 209. Scott v. Lifford, ante, p. 210. Bayley, 220. And now by the 1st sec. of the above statute, it is enacted, that from and after the 10th day of April, 1827, in all cases where bills of exchange or promissory notes shall be payable, either under or by virtue of the said recited act, (39 & 40 Geo. 3. c. 42. ante, p. 159), or otherwise, on the day preceding any Good Friday, or on the day preceding any Christmas-day, it shall not be necessary for the holder or holders of such bills of exchange, or promissory notes, to give notice of the dishonor thereof, until the day next after such Good Friday or Christmas-day, and that whenever Christmas-day shall fall on a Monday, it shall not be necessary for the holder or holders of such bills of exchange, or promissory notes, as shall be payable on the preceding Saturday, to give notice of the dishonor thereof until the Tuesday next after such Christmas-day, and that any such notice given as aforesaid, shall be valid and effectual to all intents and purposes; and by section 2, (see ante, p 159.), a similar provision is made with regard to bills falling due on a fast or thanksgiving day. So, a Jew is not obliged to forward notice on the day of a great Jewish festival, during which it is unlawful for all persons of that persuasion to attend to any sort of business. Per Lord Ellenborough, "The law required him to give notice with reasonable diligence, and I think he did so, if he sent off the letter as soon as he could after the termination of the festival, during which he was absolutely forbid to attend to secular affairs. The law-merchant respects the religion of different people. For this reason we are not obliged to give notice of the dishonor of a bill on our Sunday." Lindo v. Unsworth, 2 Campb. 602. Within what hours.] The notice, if to a banker, should be delivered within banking hours; if to a merchant, or other person, within seasonable hours. Thus, where notice of the dishonor of a bill had been delivered between eight and nine o'clock at night, it was objected, that the notice must be given within the hours of business, in the same manner as a bill must be presented for payment within these hours, but the court of C. P. held, that that rule prevailed only, if a bill was accepted, payable at a banker's, in which case it must be presented for payment within the hours of business. Jameson v. Swinton, Taunt. 224. and see Bancroft v. Hall, Holt, 476. ante, p. 207. Protest of foreign bills.] Where a foreign bill is dishonored, it is not only necessary to give notice of the dishonor, but a protest must be made by a notary public, or if there be no such notary in or near the place where the bill is payable, by an inhabitant, in the presence of two witnesses, and in some cases a copy, or some other memorial of it, should accompany the notice. Bayley, 210. Thus, in an action against the drawer of a foreign bill of exchange, the question was, whether it was necessary to prove a protest for non-acceptance, and the court thought the matter clear, on the ground of the protest being part of the custom of merchants in the case of a foreign bill. Gale v. Walsh, 5 T. R. 239. See also Brough v. Parkings, 2 Ld. Raym. 993. Rogers v. Stephens, 2 T. R. 717. A protest made abroad proves itself, vide post, Chap. XII. In the same manner foreign courts give credit to a notarial protest. Molloy, b. 2. c. 10. s. 25. Dacosta v. Cole, Skinner, 272. If the bill is lost, a protest may be made on a copy. Dehers v. Harriott, 1 Show. 163. Where a person, who ought to receive notice of the dishonor of a foreign bill, is resident in this country, it is sufficient to give him notice of the dishonor of the bill, without sending at the same time the protest, or a copy. The defendant drew a bill at Buenos Ayres, and, before it became due, he returned to this country. The bill was dishonored, and protested, and notice of the dishonor, but not of the bill having been protested, was left at the defendant's house. It was held by the court of K. B. that the notice alone was sufficient to charge the defendant. Per Lord Ellenborough, "It did not appear that the defendant requested to have the protest, and it would be hazarding too much to leave it without some request. He had due notice of the fact of dishonor of the bill; and as the circumstances of parties alter, the rule respecting notice also changes according to the convenience of the case. If the party is abroad he cannot know of the fact of the bill having been protested, except by having notice of the protest himself, but if he be at home, it is easy for him, by making inquiry, to ascertain that fact." Robins v. Gibson, 1 M. & S. 288. 3 Campb. 334. S. C. A foreign bill, payable to the defendant, was indorsed by him to the plaintiff. When the bill was drawn, the defendant was in Jamaica, but had a house at Stepney, in this country, where his family lived. The bill being dishonored, was pro tested, and notice left at the defendant's house, but without any copy of the protest. This was objected to, but Lord Kenyon overruled the objection, and the plaintiff recovered. Cromwell v. Hynson, 2 Esp. 511. (Note 49.) Protest of foreign bills · within what time.] With regard to foreign bills all the books agree that the protest must be made on the last day of grace. Per Buller, J. Leftly v. Mills, 4 T. R. 174. Whether it be sufficient to note the bill on that day, and to draw up the protest afterwards, does not appear to be expressly decided. (Note 50.) The use of noting, it is said, is, that it should be done the very day of refusal, and the protest may be drawn any day after by the notary, and be dated the day the noting was made. B. N. P. 272. A bill became due on the 24th April, it was then presented and dishonored, and noted, and on the 12th May the notary who had noted it protested it in form; in an action against the indorser who was resident in England, it being objected that the plaintiff could not recover on account of the want of a protest drawn up and dated of the same day with the refusal, Lord Kenyon said, he was of opinion that if the bill was regularly presented and noted at the time, the protest might be made at any future period. It was certainly necessary to have the protest for the purpose of litigation, as, in declaring upon the bill, if it was a foreign one, the case cited (Gale v. Walsh, 5T. R. 239.) had decided that the protest must be stated and proved; but that case went no further, and was silent as to the time when the protest should necessarily be made; but though not made at the time of the refusal, if regular notice of non-payment had been given, he thought the want of an actual protest afforded no justifiable ground in law to the indorser to refuse payment of the bill. On the application of the defendant's counsel, the point was reserved and the case came on afterwards to be argued, but a venire de novo was awarded. On the second trial before Lord Ellenborough, his lordship expressed himself of the same opinion as Lord Kenyon. Chaters v. Bell, 4 Esp. 48. It is stated by Mr. Selwyn, that the court, after the argument of the above case, conceiving the question to be of great importance directed it to be turned into a special verdict; but that the sum in dispute being small and the parties unwilling to incur the expense of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again. Selw. N. P. 345. 4th ed. In a late case where a bill was noted on its being dishonored, and a third party then paid it as supra protest, and the protest was afterwards drawn up purporting to have been made before the payment, Lord Tenterden ruled that the payment thus made was irregular, the custom being that a formal protest must be made before payment is made for the honor of any party to the bill. Vandewall v. Tyrell, 1 M. & M. 87. Though where the party to whom notice of the dishonor of a foreign bill is to be given resides in this country, a copy of the protest need not be sent with the notice, yet the bill must be protested. See Chaters v. Bell, 4 Esp. 48. (see unte, p. 112.) A bill drawn in Ireland is a foreign bill, and requires a protest. Ibid. If the drawer has no effects in the hands of the drawee, a protest is not necessary to charge the drawer. Orr v. Maginnis, 7 East, 359. Legge v. Thorp, 12 East, 177. 2 Campb. 310. S. C. post. And a subsequent promise will also excuse the want of a protest. Gibbon v. Coggon, 2 Campb. 188. post. But as the English rule of law on this subject may not be adopted in foreign courts, it is advisable to protest a foreign bill in all cases where it may be necessary to enforce it in the courts of other countries. See Legge v. Thorpe, 12 East, 177. Protest of inland bills.] The protesting of inland bills is regulated by the statutes 8 & 9 W. 3. c. 17. s. 1. and 3 & 4 Ann. c. 9. s. 4. By 9 & 10 W. 3. c. 17. s. 1. reciting that great damages and other inconveniences do frequently happen in the course of trade and commerce, by reason of delays of payment, and other neglects on inland bills of exchange in this kingdom, it is enacted that from and after the 24th day of June, 1698, all and every bill or bills of exchange, drawn in, or dated at and from any place in the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, of the sum of 51. sterling or upwards, upon any person or persons of or in London, or any other trading city, town, or any other place (in which said bill or bills of exchange shall be acknowledged and expressed the said value to be received,) and is, and shall be drawn payable at a certain number of days, weeks or months after date thereof, and from and after presentation and acceptance of the said bill or bills of exchange, (which acceptance shall be by the underwriting the same under the party's hand so accepting), and after the expiration of three days after the said bill or bills shall become due, the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may, and shall cause the said bill or bills to be protested by a notary public, and in default of such notary public, by any other substantial person of the city, town or place, in the presence of two or more credible witnesses, refusal or neglect being first made of due payment of the same, which protest shall be made and written under a fair written copy of the said 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 which the above is the copy, which the did not pay; wherefore I, the said said day of do And by stat. 3 & 4 Ann. c. 9. s. 4. reciting the act of 9 W. 3. (supra) and reciting that by there being no provision made therein for protesting such bill or bills, in case the party on whom the same are or shall be drawn refuse to accept the same by underwriting the same under his hand, all merchants and others do refuse to underwrite such bill or bills, or make any other than a promissory acceptance, by which means the effect and good intent of the said act in that behalf is wholly evaded, and no bill or bills can be protested before, or for want of such acceptance by underwriting the same as aforesaid; "it is enacted, that from and after the 1st day of May, 1705, in case, upon presenting of any such bill or bills of exchange, the party or parties, on whom the same shall be drawn, shall refuse to accept the same, by underwriting the same as aforesaid; the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested for non-acceptance, as in case of foreign bills of exchange, for which protest there shall be paid two shillings, and no more.' Notwithstanding these statutes, the protesting of an inland bill is in no case necessary, for not only may the holder recover the principal money due upon the bill without such protest; Brough v. Parking's, 2 Ld. Raym. 992. 6 Mod. 80. S. C. Boulager v. Talleyrand, 2 Esp. 550; but also the interest. Windle v. Andrews, 2 B. & A. 696. By the terms of the statute an inland bill must not be protested till after the expiration of the day on which it is payable. These statutes do not authorise the protesting of inland bills payable after sight. Leftly v. Mills, 4 T. R. 170. Protest for better security.] The custom of merchants is said to be, that if the drawee of a bill absconds before the day of payment, the person to whom it is payable may protest it to have better security for the payment, and to give notice to the drawer of the absconding of the drawee. 1 Ld. Raym. 743. Beawes, pl. 22, 23, 24, 26, 27, 29. The neglect to make this protest, or to give notice of the absconding of the drawee, will not (unless the bill has been presented for acceptance and refused, of which notice must be given) prejudice the rights of the holder against the drawers and indorsers. Beawes, pl. 25. There does not appear to be any mode at law of enforcing the giving of better security, and the practice of protesting for better security can, therefore, only be regarded as a prudent precaution for the purpose enabling the drawer to provide for the bill, or for the purpose of enabling some third person |