appropriated to discharge their own debt; but that appropriation should appear by writing, and the defendant should be a party to it." Blackham v. Doren, 2 Campb. 504. Where the drawer had supplied the drawee with goods which were not to be paid for until after the bill became due, it was held that the drawer was not entitled to notice, as he could not have had any reasonable expectation of the bill being paid. Per Lord Ellenborough," As to funds, though there were goods of the defendant's in the drawee's hands at the time of the drawing, yet they were not such as could be properly set against the drawing; and as to any reasonable expectation that the bill would be paid, it was neither accepted, nor had the defendant any claim upon the drawee to have it honored, according to the due course of credit between them, till the end of the year." Per Le Blanc, J. "I perfectly agree that it is not necessary that the drawer should have effects in money in the hands of the drawee, either at the time when the bill is drawn or when it becomes due. For if the bill be drawn in the fair and reasonable expectation that in the ordinary course of mercantile transactions, it will be accepted or paid when due, the case does not range under that class of cases of which Bickerdike v. Bollman is the first. But here the defendant did not draw the bill with any reasonable expectation that it would be accepted or paid, but on the contrary, with a pretty clear assurance that it would be dishonored." Claridge v. Dalton, 4 M. & S. 226 The delivery of cross-acceptances by the drawer to the acceptor, will be equivalent to the having effects in the acceptor's hands. In an action against the drawer of a bill to whom no notice of dishonor had been given, it appeared that the acceptor had been introduced to the defendant for the purpose of borrowing money, and had received his acceptances to a large amount. Some of these the acceptor had negotiated, and had been obliged to take up when due. At the time the bill in question was accepted, two of the defendant's acceptances to a much larger amount than the bill in question, which the acceptor had negotiated and raised money upon, were outstanding, but no money passed in consideration of his acceptance of the bill in question. Per Best, C. J. "I am strongly of opinion that this is not a case in which the plaintiff is relieved from the necessity of proving a notice. The principle upon which notice is dispensed with, is that a fraud has been committed in draw. ing on a person with whom the drawer had no effects, and on whom he had no right to draw. That is not so here. The defendant was at the time liable on acceptances given to the acceptor, and on which the latter had raised money, and he had a right to draw on him to a greater extent than this bill." Spooner v. Gardener, R. & M. 84.

In the case of Ex parte Heath, 2 Ves. & B. 240, the Lord Chancellor made the following observations; 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 shew, 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; and there can be no stronger instance than that, in the case of Walwyn v. St. Quintin, 2 Esp. N.P.C. 515, Lord Chief Justice Eyre, a very good lawyer, left it to the jury to decide, without any solution of the question, whether title deeds are effects; but a rule, that securities cannot be effects in any case, would be quite destructive of all commercial dealing. Are not short bills, for instance, effects? Is it of no importance to the holder to have notice that he may withdraw them from the possession of the acceptor? The courts were obliged necessarily to decide, that if bills were accepted for the accommodation of the drawer, and that there was nothing but that paper between them, notice was not necessary; the drawer being, as between him and the acceptor, first liable; but, if bills were drawn for the accommodation of the acceptor, the transaction being for his benefit, there must be notice without effects, and if in the result of various dealings the surplus of accommodation is on the side of the acceptor, he is with regard to the drawer, exactly in the situation of an acceptor, having effects, and the failure to give notice may be equally detrimental."

Not excused, where though the drawer has no effects in the hands of the drawee, he would have a remedy over.] The rule laid down in Bickerdike v. Bollman (supra) does not apply to cases where, although the drawer has no effects in the hands of the drawee, he would yet have a remedy against some other party. In the case of Walwyn v. St. Quintin, 1 B. & P. 552, this distinction, indeed, does not appear to have been taken. There the bill was drawn to accommodate the indorser, who had placed securities on which he wished to raise money in the hands of the acceptor, but the drawer had no effects in his hands. It was held that want of notice did not discharge the drawer, since, as it was said, notice could be of no use to him, his situation being this, that if the acceptor did not pay, he must, and might then, and not till then, resort to the acceptor to be re-imbursed. The authority of this decision has however been overthrown by the following cases. Whitmarsh

drew on Neales, payable to Fiander or order, who indorsed to defendant, who indorsed to Cosier, who indorsed to Woods, who indorsed to the plaintiffs. All the parties previous to

Woods were accommodation parties. The bill was drawn for the accommodation of Woods. The defendant knew that Cosier had received no value for his indorsement, but it was not proved that at the time the defendant indorsed the bill, he knew that the drawer had no effects in the hands of the drawees. The plaintiffs not having given notice of the dishonor to the defendant, Bayley, J. thinking such notice material to the defendant, with respect to his remedy over against Woods, directed a nonsuit, which the court of K. B. refused to set aside. Brown v. Maffey, 15 Eust, 216. So where the defendant drew a bill in his own favor for the accommodation of L. & Co. to whom he indorsed it, and by whom it was indorsed to the plaintiffs, it was held by the court of K. B., that the defendant was discharged by want of notice of dishonor. Per Abbott, C. J. "There is great difficulty in distinguishing this case from Walwyn v. St. Quintin, (supra.). but I must say that I cannot assent to the law there laid down; for if notice had in that case been given to the drawer, he might have had his remedy over against a third person." Per Bayley J. "Where the drawer has no effects in the hands of the acceptor, that is prima facie evidence that he will not be injured by the want of notice; but that prima facie presumption may be rebutted, and if the drawer can shew actual prejudice, it takes the case out of Bickerdike v. Bollman. One test is this: suppose the drawer to pay the bill, has he any remedy over against a a third person? In the case of Bickerdike v. Bollman, he had none; but here, if the defendant had paid the bill, he would clearly have had a remedy over against L. & C., because they impliedly undertook to indemnify him, and he would also, as it seems to me, have had a remedy over against the acceptor. The case of Walwyn v. St. Quintin (supra) is very similar to he present, and I am not sure that it can be distinguished from it: that case, however, is inconsistent with the decision in Brown v. Maffey." (supra.) Cory v. Scott, 3 B. & A. 619. Norton v. Pickering, 8 B. & C. 610. and see Clegg v. Cotton, 3 B. & P. 250. ante, p. 222.

Not excused, in an action against the indorser, because the drawer had no effects in the hands of the drawee.] It is no answer to the want of notice in an action against an indorsee, that the drawer had no effects in the hands of the drawee. Thus where in such an action, the plaintiff's counsel offered to show that the drawee had no effects of the drawer in his hands at the time, the court were of opinion that as between these parties it would make no difference. Goodall v. Delley, 1 T. R. 713. So where in an action against an indorser who had received no notice of dishonor, the plaintiff's counsel attempted to cure this negligence by shewing that the drawer had no effects in the hands of the drawees, Lord Kenyon was of opinion that this circumstance would not avail the plaintiffs. That rule only extended to ac

tions brought against the drawer; the indorser was at all times entitled to notice, for he had no concern with the accounts between the drawer and the acceptor. The plaintiffs then proved a letter of the defendant's, acknowledging the debt and promising to pay, on which evidence he recovered a verdict.

v. Jacks, Peake, 202 b.

Wilkes

But in Lisson v. Tomlinson, 1805. Selw. N. P. 324. 4th ed. Lord Ellenborough ruled, on the authority of De Bert v. Atkinson, 2 H. Bl. 336. see post, that where the indorser has not given any consideration for a bill, and knows at the time that the drawer has not any effects in the hands of the drawee, he (the indorser) is not entitled to notice as a bona fide holder for a valuable consideration would be. But where the indorser had no notice of the drawer having no effects in the hands of the drawee, he was held entitled to notice, as already stated. Brown v. Maffey, 25 East, 216. ante, p. 2and see 27, Leach v. Hewett, 4 Taunt. 731. ante, p. 196.

Not excused by the insolvency or bankruptcy of the drawee or other party.] The holder of a bill is not excused from giving notice of its dishonor, though the drawee or acceptor has become insolvent or bankrupt, and the other parties to the bill were aware of that fact. In an action againt the drawer of a bill, to whom no notice of dishonor had been given, the acceptor, being called as a witness, stated, that when the bill was drawn he was indebted to the drawer in more than the amount of the bill; but that he then represented to the drawer that it would not be in his power to provide for the bill, and that it was, therefore, understood between them that the drawer should provide for it: Lord Kenyon, notwithstanding, held, that notice was necessary. Staples v. Okines, 1 Esp. 332. So where B. for the accommodation of A., who was considerably indebted, indorsed a note made by A., and payable at D.'s, and shortly before it became due desired D. to send it to him, and said he would pay it; it was held, that B. was, notwithstanding, entitled to notice of the dishonor of the note. Per Eyre, C. J. "It sounds harsh, that a known bankruptcy should not be equivalent to a demand or notice; but the rule is too strong to be dispensed with." Nicholson v. Gouthit, 2 H. Bl. 609. So in Russell v. Langstaff, Dougl. 497.515, 4th ed. it was said, arguendo, that it had been frequently ruled at Guildhall, that it is not an excuse for not making a demand on a note or bill, or for not giving notice of non-payment, that the drawer or acceptor has become bankrupt, as many means may be resorted to of obtaining payment, by the assistance of friends or otherwise. See also Whitheld v. Savage, 2 B. & P. 277. Thackray v. Blackett, 3 Campb. 164. Ex parte Wilson, 11 Ves. 412. The indorsers of a bill, which was dishonored, had received no notice of its dishonor, but knew that the drawer and acceptor were insolvent. The court held, that they were

discharged by the want of notice. Per Lord Ellenborough, "It is too late now to contend, that the insolvency of the drawer or acceptor dispenses with the necessity of a demand of payment or of notice of dishonor; and as to knowledge of the dishonor by the person to be charged on the bill, being equivalent to due notice of it given to him by the holder, the case of Nicholson v. Gouthit (supra), is so decisive an authority against that doctrine, that we cannot enter again into the discussion of it." Esdaile v. Sowerby, 11 East, 114.

The bankruptcy of the drawer or indorser of a bill will not, as it seems, excuse the giving of notice to him. In the case of ex parte Moline, 19 Ves. 216, Lord Eldon held, that notice of dishonor to the drawer of a bill, who had become bankrupt, before the appointment of assignees, was sufficient; that the bankrupt represented his estate until assignees were chosen, and that all that was requisite, therefore, was done. So under the peculiar circumstances of the following case, the court of K. B. held, that notice to a bankrupt drawer was necessary. One Rain, the drawer of certain bills, due in June, 1818, left his dwelling-house in April and absconded. On the 28th April a commission of bankrupt issued against him, and the assignees were chosen. The bankrupt's house remained open in the possession of the messenger under the commission, for some time after the bills became due. The acceptor, Lacklan, became bankrupt on 23d April, and the bills were dishonored; but no notice of the dishonor was given to the drawer, or left at his house. The holders had notice of the appointment of the assignees of the drawer before the bill became due; but no notice was given to them. The court held, that by the want of notice the estate of the drawer was discharged. Per Cur. "When a bill is dishonored, it is the duty of the holder to use due diligence to give notice to such of the parties to the bill, as would be entitled to a remedy over upon it, if they took it up, and the holder makes the bill his own as against those parties, and loses his remedy upon the bill against them by neglecting to use such diligence. It is no excuse, that the chance of obtaining any thing upon the remedy over was hopeless, that the person or persons against whom that remedy would apply, were insolvent or bankrupts, or had absconded. Parties are entitled to have that chance offered to them; and if they are abridged of it, the law, which is founded upon the usage and custom of merchants, says they are discharged. The bankruptcy, therefore, of Lacklan is no excuse for the want of due diligence, if such want exist in this case; but the question must be answered as it would have been had Lacklan continued solvent. Had Lacklan been solvent, and Rain's assignees had been apprised of the dishonor, they might at all events have pressed Lacklan to pay; and had they thought fit to take up the bill, they might have sued him. Of these opportunities in this case, they have