is not, in an action against the maker, to | turned into a special verdict; I Law be considered as part of the contract. Journal, 315, K. B. E. T. 1803. Which Price v. Mitchell, 4 Campb. 200. Gibbs, never came before the court, Selw. C. J. 1815.

327.

177. A bill protested for non-acceptspecial ance, need not be protested for non-payTreco- ment. Price v. Dardell, Chitty on Bills, Treco-ment. Ellen-314. Kenyon, C. J. 1794, and De la Torre v. Barclay, 1 Stark. 7. Ellen

169. But where the place of payment is printed at the foot of the note, presentment must be proved. thick v. Edwin, 1 Stark. 468. borough, C. J. 1816.

170. If a country banker's note pur-borough, C. J. 1814.

port to be payable in the country and in Contra, Pothier, Traité du Contrat de town, a country holder, residing in the Change, num. 138. And see Orr v. neighbourhood, is not guilty of laches, Magianis, 7 East, 359, 361.

if he present it for payment in town only. Beeching and others v. Gower, Holt, 313. Gibbs, C. J. 1816.

171. The indorser of a bill payable after sight, is not discharged by the circumstance of the bill remaining a long time in circulation, before it is presented for acceptance. Goupy and others v. Harden and others, Holt, 342. Gibbs, C. J. 1816.

178. To entitle the holder of an inland

bill to interest and cosis, a protest must be proved. Boulager v. Talleyrand, 2 Esp. 550. Kenyon, C. J. 1797.

S. P. Harris v. Benson, 2 Stra. 910. 179. S. P. Contra, Windle v. Andrews, 2 Stark. 425. Abbott, C. J. 1818.

180. But the want of such a protest does not affect the right to recover the principal. Ibid.

172. Where the place of payment is S. P. Brough v. Parkings, 2 Lord stated in the body of the note, such Raymond, 992. S. C. 1 Salk. 131. statement is material, and the omission S. C. 6 Mod. 80. Cont. as to Coal of it in the declaration is not cured by Notes, 3 Geo. 2. cap. 26. s. 7. an averment that the note was duly presented. Roche v. Campbell, 3 Campb. 247. Ellenborough, C. J. 1812.

F. PROTEST.

181. An express promise of payment by the drawer of a foreign bill, which has been dishonoured, is equivalent to an admission that a protest has been regularly made, in an action against the sheriff for not arresting the drawer on mesne process sued out by the holder. Gibbon v. Coggon, sheriff of Essex, 2 Campb. 188. Ellenborough. C. J.

173. It is not necessary to send a copy of the protest with the notice of non-payment. Cromwell et alt. v. Hynson, 2 Esp. 511. Kenyon, C. J. 1796.1809. Acc. Pothier, Traité du Contrat de Change, part 1. chap. 5. s. 150.

Cont. Goostrey v. Mead, Gilb. Evid. 79. S. C. B. N. P. 271, 2.

174. Or to give notice that a protest has been made. Robins v. Gibson, 3 Campb. 334. Ellenborough, C. J. 1813.

And the court of K. B. refused a rule for a new trial. Ibid and 1 M. and S. 288. Ibid. Ellenborough, C. J.

And see Selw. N. P. 325, n. 175. And semble, that the protest may be drawn up at any time before the trial, provided the bill be noted on the day it is dishonoured. Chaters v. Bell et alt. 4 Esp. 49. Kenyon, C. J. 1801. 176. S. P. upon a second trial before Ellenborough, C. J. Ibid.

But a case reserved on this point was, after argument, directed to be

182. And such a promise will support an allegation of due presentment to the drawees, protest, and notice to the defendants. Greenway and others, v. Hindley, sued with Gregorie, outlawed. Campb. 52. Ellenborough, C. J. 1814.

4

183. A protest for non-acceptance and non-payment of a foreign bill of exchange, is not necessary to charge the drawer, where it is proved by the drawee, that there were no effects in hand; though it appear from a claim which the drawer would have had upon the drawee as executor, if the latter had possessed assets, that the former was not altogether unwarranted in expecting that the bill would be accepted. Legge v. Thorpe, 2 Campb. 310. Ellenbo rough, C. J. 1810.

And the court of K. B. discharged a

rule for a new trial. Ibid. and 12 East, 171.

And see 12 East, 177.

G. NOTICE OF DISHONOR.

G. (a) How given.

191. But if the porter is called, and swears he has put in all letters which he found from time to time on the table, it is sufficient. Ibid.

192. Or if a letter of the defendant's is produced, wherein he acknowledges the receipt of a letter from the plaintiff, of the same date, though without referring to the contents. Ibid.

193. Where a bill is drawn in Ja

184. Notice of the dishonor of a bill may be given by letter. Langdon v.maica, in favour of A., who remains there Hulls, 5 Esp. 157. Ellenborough. C. J.

1804.

185. But in such case a copy of the letter cannot be given in evidence, without notice to produce the original. Ibid.

after the bill is dishonoured, notice left at A.'s residence in England is sufficient. Cromwell et alt. v. Hynson, 2 Esp. 511. Kenyon, C. J. 1796.

194. To give notice of the dishonor of a foreign bill, it is sufficient to put a 186. Parol evidence of the contents letter of advice in the post-office here, of a letter announcing the dishonor of a notwithstanding the irregularity of the bill, is not admissible without notice to foreign post. Kufh and others v. Weston produce the letter. Shaw and others v. and others, 3 Esp. 54. Kenyon, C. J. Markham, clerk, Peake, 165. Kenyon, 1799. C. 1792.

187. But it has since been held, that notice need not be given to produce the letter containing notice of dishonor. Roberts v. Bradshaw, 1 Stark. 28. Ellenborough, C. J. 1815.

And see Saunderson v. Judge, 2 H. Bla. 509, 11; Darbishire v. Parker, 6 East, 3, 9. S. C. 2 Smith, 195; Parker v. Gordon, 7 East, 385. S. C. 3 Smith, 358.

1, § 4.

But see Pearson v. Crallan, 2 Smith, And see ante, ATTORNEY, B. (a) 17.404; Pothier, Traité du Contrat de 188. Proof that duplicate notices Change, part 1, chap. 5, sect. 2, art. were written, and also, that a letter was sent to the defendant on the same day, 195. A bill was presented for payment will, upon the non-production of the on the 4th, by a notary, on behalf of the letter after notice, be evidence of notice payee's bankers. The notary brought of dishonor, without shewing the con- the bill back to the bankers dishonored, tents of the letter, or otherwise connect-on the morning of the 5th. On the same ing it with the notices. Ibid. day it was returned to the payees, who, And the court refused a rule for a new in the course of the sixth, sent a letter to trial. Ibid.

189. Proof that a letter containing notice, was delivered to a person at the house in which the defendant lodged, and that the same letter was, on the next morning, thrown into the plaintiff's house, is presumptive evidence of notice to the defendant. Stedman v. Gooch, 1 Esp. 4, 5. Kenyon, C. J. 1793.

the drawer by the twopenny post; all the parties residing within the delivery. Held, that this was sufficient notice. Scott and others v. Lifford, 1 Campb. 246. Ellenborough, Č. J. 1808.

Rule nisi for a new trial, on the ground that the notice was too late, and that it was sent by an improper conveyance, refused in K. B. Ibid. and 9 East, 347.

190. It is not sufficient to shew that it was written by a merchant in his 196. In the last case, it did not appear counting-house, and put down upon a in evidence at what hour of the day the table for the purpose of being carried letter was put into the office; but it has from thence to the post-office, and that, since been held, that a party being bound by the course of business in the count-to give notice of the dishonor of a bill on ing-house, all letters deposited on this table are carried to the post-office by a porter. Hetherington v. Kemp, 4 Campb. 193. Ellenborough, C. J. 1815.

the day after that on which it reaches him, it is not sufficient to put a letter into the twopenny post after five in the afternoon; as, by the course of the post,

such letters will not be delivered tilling-house between 6 and 7 in the eventhe next morning. Smith v. Mullett, ing. Ibid. 2 Campb. 208. Ellenborough, C. J.

1811.

And see Bayley, 125.

207. If the drawer or indorser of bill, receive due notice of dishonour from his immediate indorsee, he is liable to a

197. To entitle a person to avail him- subsequent indorsee from whom he had self of the twopenny post in sending no-no direct notice. Jameson and others v. tice, it is not necessary that the parties Swinton, 2 Campb. 373. Lawrence, J. should reside at remote points within the delivery. Hilton v. Fairclough, 2 Campb. 633. Lawrence, C. J. 1811.

1809.

S. C. not S. P. 2 Taunt. 224. S. P. acc. Shaw v. Croft, Chitty, 239. S. P. 198. It is sufficient if the letter be put cont. ex parte Barclay, 7 Ves. 598. into the office early enough to reach its 208. A remote indorsee of a disho-, destination on the evening of the day noured cheque, is not bound to apply following that on which the bill was for payment to the drawer, or to give dishonored, though the parties reside him notice of the dishonour; for the within a short distance from each other. purpose of charging an intermediate Ibid.

199. Notice of dishonor must be given by or on the behalf of the holder; it is not sufficient that the defendant has been informed of the non-payment of the bill by an unauthorized stranger. Stewart v. Kennett, 2 Campb. 177. Ellenborough, C. J. 1809.

But see INSURANCE, O. (a) 1. 200. But notice from any person who is a party to the bill is sufficient. Wilson v. Swabey, 1 Stark. 34. Ellenborough, C. J. 1815.

party, it is sufficient to give notice to such party. Rickford and others v. Ridge, 2 Campb. 537. Ellenborough, C. J. 1810.

Vide post G. (c) 239, note.

209. Notice of the dishonour of a bill, is sent to an indorsee of the Jewish persuasion on the 8th of October, the greatest Jewish festival in the year. Notice from him to the indorser, by letter put into the general post office on the 9th, was sufficient. Lindo v. Unsworth, 2 Campb. 602. Ellenborough, C. J. 1811.

to him.

201. Notice from the acceptor is sufficient. Rosher and another v. Kieran, 210. Absence from home, occasioned 4 Campb. 87. Ellenborough, C. J. by the dangerous illness of the party's 1814. wife, was ruled to be no excuse for not 202. It is not sufficient that the party forwarding a notice which had been sent sought to be charged, has received notice of the dishonor of a bill as many days as there are subsequent indorsees, unless it be shewn that each gave notice within a day after he received it. Marsh v. Maxwell, 2 Campb. 210. Ellenborough,

C. J. 1811.

203. S. P. contra. Cutler and another v. Boddy, Chitty on Bills, 406. Ellenborough, C. J. 1814.

204. A special case appears to have been afterwards reserved on this point. Turner v. Leach. Ibid.

Turner v. Leach, Chitty on Bills, 275. Ellenborough, C. J. 1818. Vide tamen, Hilton v. Shepherd, 6 East, 15.

211. Notice of dishonour may be given immediately, upon the refusal of the payment, by the maker of a note, without waiting to see whether it will be taken up in the course of the day. Burbridge v. Manners, 3 Campb. 193. Ellenborough, C. J. 1812.

212. The notice need not state the liability of the party to whom it is And see M'Queen v. Farquhar, 11 given. Shaw v. Croft, Chitty on Bills, Kenyon, C. J. 1798.

Ves. 478.

284.

G. (b) When necessary.

205. Notice sent by a private hand on the 25th, being the day after it reached the party, is sufficient, although the mail set out early in the morning of 213. The payee of a note, who has no the 25th. Bancroft v. Hall, Holt, 476. effects in the hands of the maker, is not Bayley, J. Lancaster, 1816. entitled to notice. Corney v. Mendez da 206, Notice may be given at a count-Costa, 1 Esp. 302. Buller, J. 1795.

221. If the drawer had effects in the hands of the drawee, want of notice is not excused by shewing that he was not damnified. Dennis v. Morrice, 3 Esp. 158. Kenyon, C. J. 1800.

Sed vide Pothier, Traité du Contrat de Change, part 1. chap. 5. num. 157, 8. 222. Where one of three drawers of a bill is likewise the acceptor, notice of dishonour is unnecessary. Porthouse v. Parker and others, 1 Campb. 82. Ellenborough, C. J. 1807.

And see Jacaud v. French, 12 East,

N. And in France, the proof of assets lay, and lies, upon the drawer; Pothier, Traité du Contrat de Change, part 1.317. chap. 5. num. 157. Code de Comm. 223. The holder of a bill is excused 1. 1. tit. 8. §. 2. num. 117. from giving notice of non-payment to 216. But the indorser of a bill is, in the party intended to be charged, of all cases, intitled to notice, though the whose place of abode he is ignorant; drawer have no effects in the hands of provided he use reasonable diligence in the drawee. Wilkes and others v. Jacks, finding it out. Bateman v, Joseph, 2 Peake, 202. Kenyon, C. J. 1793. Campb. 461. Ellenborough, C. 3. Acc. Brown v. Maffey, 15 East, 216. S. C. Bayley, 137.

217. S. P. contra Sisson v. Thomlinson, Selw. N. P. 324, n. Ellenborough, C. J. 1805.

1810.

224. Whether such inquiry has been conducted with due diligence, is a question, not of law but of fact. Ibid.

And the court refused a rule for a And see Pothier, Traité du Contrat de new trial. Ibid. and 12 East, 433. Change, part 1, chap. 5. num. 157, 8. Contra Sturges v. Derrick, Wightw. 76. 218. Where the acceptor is indebted 225. An inquiry for the residence of to the drawer, an agreement between an indorser, made at the place at them that the latter shall take up the which the bill purported to be payable, bill, will not dispense with notice. Sta- is not sufficient. Beveridge v. Burgis, ples v. Okines, 1 Esp. 333. Kenyon, 3 Campb. 262. Ellenborough, C. J. C. J. 1795.

Acc. Nicholson v. Gouthit, 2 H. Bla. 607. Esdaile v. Sowerby, 11 East, 114. Brown v. Maffey, 15 East, 216. S. C. Bayley, 137.

219. Where A. had deposited deeds with B. an attorney, for the purpose of raising money, and B. had accepted a draft on account of the intended mortgage, the jury found, that these deeds were the effects of A. in the hands of B., though no money had been raised. Walwyn and others v. St. Quintin, 2 Esp. 514. Eyre, C. J. 1796.

220. And where, for the accommodation of A., the owner of the deeds, C. drew upon B. in favour of A., it was ruled, that C. was intitled to notice. Ibid.

But upon a motion for a new trial, the court of C. P. decided, that notice was not necessary; 1 Bos. and Pul. 651.

And see VENDOR and PURCHaser,

F. post.

1812.

226. Where, upon inquiry, it appears that the person entitled to notice has left the kingdom, no laches is imputable to the holder, unless it can be shewn that he knew where the party might have been found. Harrison v. Fitzhenry, 3 Esp. 240. Le Blanc, J. 1800.

227. Notice is not necessary, where it appears that the defendant, the drawer, had no effects in the hands of the drawee, though he had some reason to expect that the bill would be accepted on account of a claim which he had against the drawee's testator. Legge v. Thorpe, 2 Campb. 310. Ellenborough, C. J.. 1810.

And the court of K. B. discharged a rule for a new trial. Ibid. and 12 East, 171.

And see the observations of Le Blanc, J. 12 East, 177.

223. Secus, where the expectation is grounded upon the consignment of a

cargo actually shipped, although the may be recovered by the holder of the goods perish before they reach the bill, as money had and received to his drawee. Rucker and another v. Hiller, use. 3 Campb. 217. Ellenborough, C. J. 1812.

229. S. P. ruled in Robins v. Gibson, 3 Campb. 334. Ellenborough, C. J. 1813.

And see 12 East, 175; ex parte, Heath, 2 V. and B. 240.

230. It is not a sufficient ground to dispense with the proof of notice, that the balance of a fluctuating account between the drawer and the drawee is against the former. Blackhan v. Doren, 2 Campb. 503. Ellenborough, C. J. 1810.

Ibid.

236. The drawer of a bill, which is destroyed by accident, is intitled to notice of non-payment, though he has refused to give a new bill according to 9 and 10 Will. III. cap. 17. sect. 3. and though the drawee is bankrupt. Thackray v. Blackett, 3 Campb. 164. Ellenborough, C. J. 1812, and K. B. H. 1812.

237. So where two accommodation bills are drawn payable at different periods, and whilst both bills are running, the drawer contracts engagements on the account of the acceptor, to an amount 231. Or that, when the bill was pre-which is fully covered by the bill which sented, the drawer was largely indebted first becomes due, the drawer is intitled to the drawees, who had appropriated to notice of dishonour on both bills; as all the effects of the drawer in their the transaction cannot be separated by hands towards the liquidation of their setting the balance due from the acdebt; unless such appropriation were ceptor, against the first bill exclusively. made with the privity of the drawer. Ibid. Ibid.

238. The maker of a promissory note,

N. The state of the accounts, at the payable at a particular place, is not intime the bill was drawn, does not appear.titled to notice of dishonour. Pearce v. But in Orr v. Maginnis, 7 East, 359, Pemberthy and others, 3 Campb. 261. 61. 3 Smith, 328, it was held that Ellenborough, C. J. 1812.

this alone was material. Claridge v.

Dalton, 4 M. and S. 226.

G. (c) Consequences of neglect.

232. If the drawer has effects in the hands of the drawee at any time whilst the bill is running, he is intitled to no- 239. A bill indorsed by A., B., C., and tice of dishonour. Hammond and others D., successively, is refused acceptance; v. Dufrene, 3 Campb. 145. Ellen-D. neglects to give notice of the nonborough, C. J. 1811, and K. B. 1812.

233. After notice of non-acceptance, notice of non-payment need not be given. Price v. Dardell, Chitty on Bills, 300. Kenyon, C. J. 1794.

Contra, Pothier Traité du Contrat de Change, part 1, chap. 5, sect. 2, art. 1, §3, num. 138.

acceptance to C. but upon non-payment at maturity, he returns the bill to B. who takes it up without notice of the laches; A. having been once discharged, his liability is not revived by the act of B. in paying the bill under an ignorance of the facts. Roscow (Roscoe) v. Hardy, 2 Campb. 458. Ellenborough, C. J.

234. It is no excuse for not giving 1810. notice to the drawer of non-payment by And the court refused a rule to set the acceptor, that the latter had pre-aside nonsuit. Ibid. and 12 East, viously informed the drawer of his in-434. ability to fulfil his engagement, and has N. Where the holder of a dishonoured given the drawer part of the amount for bill contents himself with giving notice the purpose of enabling him to take up to his immediate indorser, he commits the bill, which he has engaged to do. his right to resort to prior parties to the Baker v. Birch, 3 Campb. 107. Ellen-chance of their receiving regular notice borough. C. J. 1811. through such last indorser. To secure Forster v. Jurdison, 16 East, 105. his remedy against any party, he must 235. But in such case the sum ad-give immediate notice to such party. vanced by the acceptor to the drawer, Vide Pothier, Traité du Contrat de