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it is given is considered liable, and that payment from him is expected.
It has indeed been held, that notice from the acceptor to the drawer that he had not been able to pay it, and that it was then in plaintiff's hands, was sufficient; but that might, perhaps, have been on the ground that the acceptor wrote for the plaintiff, and as his agent. (75)
A notice from the holder or any other party will enure to the benefit of every other party who stands between the person giving the notice and the person to whom it is given. (76)
law, what notice is reasonable; as to giving time, the holder does it at his peril, and that is enough to decide the case; the purpose of giving notice is to let the party know that he is looked to for payment, that he may have his remedy over by an early application; if it shews that the holder has given time, it discharges the party: it ought to purport that the holder looks to him for payment, and a notice from another person cannot be sufficient; it must come from the holder." Upon the second trial there was contradictory evidence whether the notice from the maker was on the sixth or the seventh, and the jury found again for the plaintiff; but the court said it was a verdict against law, and granted another new trial.
(75) Rosher v. Kieran, 4 Campb. 87. Indorsees of bill against drawer, and the question was, whether defendant had had due notice of the bill's dishonour? It was proved, that, on the day the bill became due, the acceptor wrote to defendant that he had not been able to pay the bill, and that it was in plaintiff's hands: Lord Ellenborough held this sufficient, and verdict for plaintiff. See Stewart v. Kennet, 2 Campb. 177.
(76) Wilson v. Swabey, 1 Stark. 34. In an action by indorsee of a bill against the drawer, it appeared that notice was communicated to Lewis, an indorser, the day after the bill became due, and that Lewis gave defendant notice the next day: it was
Therefore a notice from the last indorsee to the drawer, will operate as a notice from each indorser.
It is nevertheless prudent in each party who receives a notice, to give immediate notice to those parties against whom he may have right to claim; for the holder may have omitted notice to some of them, and that will be no protection (77); or there may be difficulties in proving such notice.
Though a holder, or any other party, gives no notice but to the person of whom he took the bill, yet if notice is communicated without laches to the prior parties, he may avail himself of such communication, and sue any of such prior parties; it is no objection in such case that there was no notice immediately from the plaintiff to the defendant. (78)
To give this notice, in the case of a foreign bill, effect, it is (79) necessary that a minute of the
objected, that plaintiff had not given defendant notice: but Lord Ellenborough said, notice from any person who was party to the bill was sufficient, and plaintiff had a verdict.
(77) Edwards v. Dick, 4 Barnew. 212. In an action by indorsee against drawer, it appeared that the acceptor made the bill payable at a particular place, and it did not appear that plaintiff had given the acceptor notice of its dishonour: but on motion for nonsuit on that ground, the court held it sufficient in order to warrant a suit against defendant, that notice was given to him; he could not object that a third person had not had notice: if he was entitled to a remedy over against the acceptor, he should have given him notice. Rule refused. (78) See note (76).
(79) Rogers v. Stephens, 2 Term Rep. 713. In an action against the drawer of a foreign bill, it appeared that the bill had been noted for non-acceptance, but there was no protest,
non-acceptance or non-payment, and a solemn declaration on the part of the holder against any loss to be sustained thereby, (which minute and declaration is called a protest) should be made out 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.
Such protest may also be made on the (80) non
and this was pressed as a ground for a nonsuit. Lord Kenyon admitted the objection, but upon the other circumstances thought this a case in which a protest was not necessary. See post, p. 234. note (117).
Gale v. Walsh, 5 Term Rep. 239. In an action against the drawer of a foreign bill, it was reserved as a point whether it was necessary to prove a protest; and the court thought it so clear upon the motion to enter a nonsuit, that they suggested to the plaintiff's counsel the expediency of making the rule absolute in the first instance; and upon their acquiescence it was accordingly done; they afterwards however wished to have it opened, upon an idea that the drawer had no effects in the hands of the drawee, but it appearing upon the report that that idea was not founded, the rule stood. And in Brough v. Parkins, Lord Raym. 993. 6 Mod. 80. Salk. 131. Holt C. J. says, "A protest on a foreign bill is part of the custom." See also Orr. v. Maginnis, post.
(80) By 3 & 4 Anne, c.9. § 4. Whereas by an act of parliament in the 9th year of the reign of his late majesty King William the Third, intituled, "An act for the better payment of inland bills of exchange," it is, among other things, enacted, "that 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
acceptance of an inland bill, if such bill is for the payment of 51., or upwards, within a limited time after date, and the value is expressed therein to have been received, or (81) after an acceptance written on such a bill, for its non-payment.
made payable, his servant, agent or assigns, may, and shall cause the same bill or bills to be protested in manner as in the said act is enacted; and whereas 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 first 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.
(81) By 9 & 10 W. 3. c. 17. § 1. "Whereas 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 trading city or town, or any other 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
But (82) if a man draw or indorse a bill on this country abroad, and afterwards comes here, a
is and shall be drawn payable at a certain number of days, weeks or months after date thereof, that 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 at the usual place of abode of the said have demanded payment of the bill, of the which the above is the copy, which the said did not pay, wherefore I the said do hereby protest the said bill. Dated this
(82) Cromwell v. Hynson, 2 Esp. N. P. C.511. Indorsee against the indorser of a foreign bill. When the indorsement was made, Hynson (a master of a ship) was in Jamaica where the bill was drawn, but his residence was at Stepney. The bill was presented for acceptance, dishonoured and protested; and then sent to Hynson's house for payment, with notice of non-acceptance. Hynson was not then in England, but the bill was shewn to his wife, and the circumstances stated to her. It was urged, 1st, that notice should have been sent to Jamaica. 2dly, that the demand on the wife was not sufficient; and, 3dly, that a copy of the protest should have been sent with the notice; but Lord Kenyon overruled all the objections, and the plaintiff had
Robins v. Gibson, 3 Campb. 334. 1 Maule, 288. Indorsee of bill drawn at Buenos Ayres against drawer; before the