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But a person not party to a bill or note, cannot complain of laches or want of notice, unless he can shew it has done him prejudice. (114)

Therefore he cannot complain if the person who ought to have paid the bill or note were insolvent when it should have been paid. (114)

the necessary steps not having been taken to obtain payment from the parties who were liable upon the bill, and solvent, the guarantee must be discharged, and therefore they made the rule absolute.

(114) Warrington and another v. Furbor and another, 8 East. Rep. 242. The plaintiffs guarantied the payment of the price, to the extent of 1000l., of goods to be sold by one Martin to the defendants, at six months' credit. The goods were furnished, and the defendants accepted a bill at six months, for the value. This bill became due on the 3d of December, 1801; but on the preceding 21st of November the defendants became bankrupts. The plaintiffs were therefore obliged to pay the 1000l. and now brought this action to recover the same. It was objected that the plaintiffs had not proved a presentment of the bill to the defendants for payment, without which, it was urged, that Martin could not have recovered against the plaintiffs, and therefore that the latter had paid the money in their own wrong. Lord Ellenborough held the proof unnecessary; this not being an action on the bill, and the defendants having been recently stripped of all their property; and the plaintiffs had a verdict; and on rule nisi to set it aside, and cause shewn, the court held the verdict right: and Lawrence J. said, the guarantees were not prevented from shewing that they ought not to have been called upon at all, for that the principal debtors could have paid the bill if demanded of them. Rule discharged.

Swinyard v. Bowes, 5 Maule, 62. Action for goods sold. Defence, that plaintiff had drawn on Chesner, a debtor of defendant, for the amount, and had given defendant no notice of the dishonour of that bill; Chesner was bankrupt the week after the bill became due, and was not in a condition in the


And in an action on a bond from the drawer or indorser of a bill, conditioned to pay it in a limited time after it becomes due, if the acceptor does not, it is no defence that the bill was not duly presented for payment. (115)

Or that due notice of its dishonour was not given to the defendant. (115)

Payment of (116) part, or (117) a promise to

interim to pay it. Bayley J. thought the defendant not within the custom of merchants, because he was not party to the bill; and as he did not appear to have been prejudiced by the want of notice, the not giving it him furnished no ground of defence; and on motion for new trial, the court thought him right, and rule refused.

(115) Murray v. King, 5 Barnew. 165. In an action against the payee of a bill, on a bond from him and the drawer to pay the bill in a month after it became due, if the acceptor did not, defendant pleaded that the bill was not duly presented for payment, and secondly, that defendant had not due notice of its dishonour. Plaintiff replied, that the acceptance was a forgery; and defendant rejoined, that he did not know it when the bill became due. Plaintiff demurred, and on argument the court held the pleas bad, for the condition was silent as to the presentment and notice; and had it been intended that a neglect as to presentment or notice should have avoided the bond, the obligors should have taken care to have had words to express that intention.

(116) Vaughan v. Fuller, Str. 1246. Was an action against the indorser of a note, and it being proved that the defendant had paid part, Lee C. J. held, that that made the proof of a demand upon the maker unnecessary. See Lundie v. Robertson, Horford v. Wilson, Gibbon v. Coggon, and Potter v. Rayworth, post.

(117) Rogers v. Stephens, 2 Term Rep. 713. In an action against the drawer of a foreign bill, an objection was taken that there was no protest; but it appearing that the defendant had

pay after full notice of the default, sufficiently evinces that the party could not have sued on


no effects in the hands of the drawees when the bill was drawn, or afterwards, and that on being pressed for payment by the plaintiff's agent after the bill was dishonoured, he had said, it must be paid; Lord Kenyon thought a protest or notice unnecessary, and directed the jury to find for the plaintiff, which they did a rule was afterwards granted, to shew cause why there should not be a new trial, and it was stated then, and upon the shewing cause that the defendant had really been prejudiced by the want of notice to the amount of the bill, that he had advanced money to one Calvert to the amount before the bill was drawn, that Calvert desired him to draw on the drawees as Calvert's agents, that he did so on a supposition that Calvert had effects in their hands; that he afterwards settled with Calvert, and upon a reliance that the bill was paid, delivered him up effects to more than the value of the bill, and that Calvert was since insolvent; that the defendant was prepared with evidence to this effect, but that Lord Kenyon delivered it as his opinion, that it did not make a protest or notice necessary; Lord Kenyon did not recollect that this evidence was offered, but he and all the court thought it answered by the defendant's admission that the bill must be paid, because that was an admission that the plaintiff had a right to resort to him upon the bill, and that he had received no damage by the want of notice, and was a promise to pay. The rule was discharged.

Anson v. Bailey, Bull. Nisi Prius, 276. The indorsee of a note presented it for payment, but the maker pretended that the payee had promised not to indorse it over without acquainting him, and so put off the indorsee from time to time for three weeks; at the end of that period the indorsee wrote twice to the payee, stating what he had done, and the maker's excuse; the payee answered, that when he came to town he would set the matter right; and upon an action by the indorsee against the payee, the jury found for the plaintiff, though the maker became bankrupt before the second letter was written, and though he continued solvent for three weeks after the note was

paying the bill or note, and consequently that he cannot insist on want of notice, or of a neglect to present; a payment or promise without notice of the default does (118) not.

Wilkes v. Jacks, Peake, 202. In an action against Jacks as indorser of a bill drawn by Vaughan on Eustace and Holland, it appeared that notice had not been given to the defendant, upon which the plaintiff offered to shew that Vaughan had no effects in the hands of Eustace and Holland; sed per Lord Kenyon, "That circumstance will not avail plaintiff; the rule extends only to actions brought against the drawer; the indorser is in all cases entitled to notice, for he has no concern with the accounts between the drawer and the drawee." The plaintiff then proved a letter from the defendant acknowledging the debt, and promising to pay, and upon that he had a verdict.

(118) Blesard v. Hirst and another, Burr. 2670. The defendants indorsed a bill to the plaintiff, and he indorsed it over; his indorsee presented it for acceptance a month before it was due, and acceptance was refused; it was afterwards presented for payment, and payment was refused, of which notice was given to the defendants, but they had no notice of the refusal to accept. The drawer was a bankrupt before the bill was due, but he continued in credit three weeks after the presentment for acceptance. Three days after the notice, one of the defendants called on the plaintiff at Bradford, on his way to Leeds, and said he would take up the bill as he returned; but on his return he said he was advised he was not bound to do it, upon which this action was brought; and on a case reserved the court held, that though the holder might not have been obliged to present the bill for acceptance, yet as he did he ought to have given notice of the refusal, and that by not doing so he had taken the risk upon himself, and notwithstanding the promise of one of them the defendants had judgment.

Goodall v. Dolley, 1 Term Rep. 712. A bill drawn in favour of the defendant, payable the 11th of January, 1787, was presented for acceptance by the plaintiffs the 8th of November,

Proof that the drawer had no effects nor any ground to expect any in the hands of the drawee from the time the bill was drawn until it became payable, and that he had no other valid foundation to expect payment by the drawee is (119)

1786, when acceptance was refused: they gave no notice to the defendant till the 6th of January, and then did not say when the bill was presented; upon which the defendant proposed paying by instalments, but the plaintiffs rejected that offer, and brought this action. Heath J. thought the defendant discharged for want of notice, and that his offer to pay being made under an ignorance of the circumstances was not binding, and the jury, under his direction, found a verdict for the defendant. Upon cause shewn against a rule for a new trial, the court thought the direction and verdict right, and discharged the rule.

See Lundie v. Robertson, Horford v. Wilson, Gibbon v. Coggon, and Potter v. Rayworth, post.

(119) Rogers v. Stephens, ante, p. 234. note (117).

Bickerdike and another, assignees of Reichard, v. Bollman, 1 Term Rep. 405. The only question upon a case reserved was, whether a bill the bankrupt had drawn in favour of the petitioning creditor, upon a man who then, and from that time till the bill became due, was one of the bankrupt's creditors, had discharged so much of the petitioning creditor's debt, no notice having been given of its dishonour to the bankrupt? and the court, after argument, were of opinion it had not, because the reason why notice is in general necessary, is that the drawer may without delay withdraw his effects from the drawee, and that no injury may happen to him from the want of notice; but where the drawer has no effects in the hands of the drawee he cannot be injured, and is not entitled to any notice.

Goodall v. Dolley, ante, p. 236. note (118). In this case upon the application for a new trial, the plaintiff's counsel offered an affidavit that the drawer had no effects in the hands of the drawee, but the court thought that made no difference, the action being brought against the payee, but by Buller J.

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