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parties; it is no objection in such case that there was no notice immediately from the plaintiff to the defendant. (78)

[A notice from a notary public to whom a bill or note has been handed for the purpose of having him present it and give notice is sufficient; so from any person having a parol authority, or the mere possession of the bill or note. (a) (b)]

To give this notice, in the case of a foreign bill, effect, it is (79) necessary that a minute of the non-acceptance or

(78) See note (76).

[Stanton v. Blossom, 14 Mass. R. 116. Putnam J. delivered the opinion of the court. "Lord Ellenborough held that notice from any person who was a party to the bill was sufficient. But the drawee who refuses to accept, is not a party: and notice from him is in no degree better than notice from a stranger." "The holder himself, or some one authorized, must give the notice. Now the endorser who has been notified by the holder, of the dishonor of the bill, may, by reason of his liability, be considered as authorized to notify the drawer for the benefit of the holder as well as himself; both having an interest in the matter."]

[(a) Bank of Utica v. Smith, 18 Johns. R. 230; Hartford Bank v. Stedman, 2 Conn. R. 489; and see other cases cited p. 141 note, (a).` In Hartford Bank v. Barry, 17 Mass. R. 94, the court held that the cashier of a bank, might by his endorsement on a note belonging to the bank, authorize a third person to make a demand and give notice; it being part of his official duty to see that the proper steps were taken to charge the parties to notes. But the court appeared to entertain no doubt that any person to whom the note was sent for the purpose, would be sufficiently authorized to make a demand and give notice, without any endorsement by the cashier.]

[(b) It is the custom of the banks in New York where a note is left with them for collection, to have a demand made on the maker, and notice given to the endorser. If where a note is left for collection, the bank neglects to give the notice, in consequence of which the owner of the note is damnified, he may maintain an assumpsit against the bank for a breach of the implied promise to give notice.

But if the bank employs a competent and faithful agent for the purpose of notifying the parties to the note, the bank is not answerable for his default or neglect. And it seems that a notary being a public officer, and usually employed to protest notes and notify endorsers, is a competent agent. But if the bank gives the note to an agent who is not competent, it will be liable for his default. Smedes v. Utica Bank. 20 Johns. R. 372. Utica Bank v. Smedes, S. C. 3 Cowen, 662.]

(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, 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, 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

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-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

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. [It was formerly held in several cases in the United States, that in an action on the protest for non-payment of a foreign bill, it was not necessary to aver in the declaration, or produce at the trial, a protest for non-acceptance. Morris v. Foreman, 1 Dall. 193. in 1787; Brown v. Barry, 3 Dall 365, in 1797; Clark v. Russell, 3 Dall. 415, in 1799.]

(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, entituled, “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 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."

is expressed therein to have been received, or (81) after an acceptance written on such a bill, for its non-payment.

But (82) if a man draw or endorse a bill on this country abroad, and afterwards comes here, a notice to him here need not be accompanied by the protest, or any memorial of it.

At least he cannot object to such notice, unless he applied for the protest on receiving the notice.

(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 5l. 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, 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 rotary 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 usual place of abode of the said

day of

at the have demanded payment of

the bill, of the which the above is the copy, which the said did not pay, wherefore I the said

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day of

do hereby protest the said

(82) Cromwell v. Hynson, Esp. N. P. C. 511. Endorsee against the endorser of a foreign bill. When the endorsement 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, dishonored, 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 a verdict.

Robins v. Gibson, 3 Camp. 334. 1 Maule, 288. Endorsee of bill drawn at Buenos Ayres, against drawer; before the bill became due

And a (83) protest cannot properly be made on any other inland bills.

And a protest upon an inland bill is never necessary where (84) the bill is for the payment of less than £20; and on such as are for the payment of more, though the 3d and 4th Ann. c. 9. s. 5. contain words which primâ facie import that a neglect to (85) procure it would preclude the holder from

defendant returned to this country: the bill was dishonored, and notice thereof left at his house, but no notice given of its being protested: Lord Ellenborough held the notice sufficient; and on motion for new trial, the court agreed with him: Lord Ellenborough said, it did not appear that defendant requested to have the protest; he had notice of the bill's dishonor, and as circumstances alter, the rule respecting notice changes; if the party is abroad he cannot know of the protest but by having it being here, he might have inquired to ascertain that fact. Rule refused.

(83) Leftley v. Mills, 4 Term Rep. 170. An inland bill for £20 78. payable 14 days after sight, became due 24th April, 1790. A banker's clerk called with it for payment in the morning, and the acceptor not being at home, left word where it lay; after six, another of the clerks, who was a notary, noted it, and between seven and eight the first clerk went with it again. The acceptor tendered him the amount of the bill, and sixpence over; but he insisted on 2s. 6d. for the noting, and that sum not being paid, an action was brought against the acceptor, who pleaded the tender. Lord Kenyon thought a tender of the amount of the bill at any time of the day it was payable, was sufficient; upon which the jury found a verdict for the defendant. A rule to show cause why there should not be a new trial, was afterwards granted; and upon cause shewn, Lord Kenyon thought the acceptor had till the last minute of the day of grace to pay the bill, and that it could not be noted or protested till the following day. Buller J. thought they were payable any time of the last day of grace upon demand, so as such demand was made within reasonable hours; and that they might be protested on that day. Grose J. declined giving any opinion on these points; but the whole court concurred, that the bill in question could not be noted, because it was payable within a limited time after sight, and the statute authorizes the noting of such inland bills only as are payable after date. Lord Kenyon also thought that the sixpence tendered was sufficient for the noting, and the rule was discharged.

(84) By 3 & 4 Anne, c. 9. § 6. it is provided, that no such protest shall be necessary, either for non-acceptance or non-payment of any inland bill of exchange, unless the value be acknowledged and expressed in such bill to be received, and unless such bill be drawn for the payment of £20 sterling or upwards; and that the protest hereby required for non-acceptance shall be made by such persons as are appointed by the act of 9 & 10 W. 3. c. 17. to protest inland bills of exchange for nonpayment thereof.

(85) Brough y. Parkins, Tr. 2 Anne, Lord Raym. 992. 6 Mod. 80. Salk. 131. In an action against the drawer of an inland bill, it was insisted upon for error, that it did not appear by the declaration, that the bill had been protested; sed per Holt C. J. ❝on an inland bill no

recovering against the persons entitled to notice any special damages or costs occasioned by the non-acceptance or nonpayment and interest, yet it hath not generally that effect. (86).

protest was necessary by the common law, and the statute does not destroy or take away the party's action where there is no protest; nor is the want of a protest any bar of the action; but the act seems only to take away from the plaintiff his interest and damages where he has not made a protest, or to give the drawers a remedy against him by way of action for their costs and damages"—and the judgment was affirmed.

Harris v. Benson, Tr. 5 G. 2. Str. 910. In an action against the drawer of an inland bill after an acceptance, Raymond C. J. ruled, that for want of a protest according to 9 & 10 W. 3. c. 17. the drawer could not be charged with interest. In Lumley v. Palmer, Ann. 77. Lord Hardwicke says, "At common law there was no way to charge the drawer of an inland bill with interest and costs after a protest; and therefore the first act was made, that after acceptance by underwriting, these bills might be protested for non-payment, and that thereupon interest and charges should be paid by the drawer from the time of the protest, the statute does not say the original sum, for that is recoverable without protest, but interest and charges."

Windle v. Andrews, B. R. Trin. 59 G. 3. 2 Barnew. 696. In an action against the drawer of an inland bill, in which the requisites specified in 3 & 4 Ann. c. 9. § 6. occurred, rule nisi to strike out the interest from the verdict, on the ground that there had been no protest; but on cause shewn, the court held the want of a protest no ground for disallowing interest where notice of the dishonor of the bill had been dulý given; that the object of 9 & 10 W. 3. and 3 & 4 Ann. c. 9. § 4. was to give interest, damages, and costs in cases in which it was supposed they were not recoverable at common law, not to deprive a plaintiff of them in any case in which the common law would give them; that the 5th section, which contained the words of deprivation, was by way of proviso only, to qualify the additional benefit that statute and the statute of William were supposed for the first time to give; that the proviso in the 8th section contained words to secure to a plaintiff all his common law rights, and that the right to damages was a common law right; that it was upon this principle only that the constant allowance of interest where there was no protest could be explained; that the 5th section contained words to annul parol acceptances; and in Rex v. Meggott, Hil. 7 Geo. 2. ante, p. 97. Eyre C. J. of K. B. held that they had that effect; that this notion was corrected in Lumley v. Palmer, ante, p. 97. in Mich. Term, 8 Geo. 2. upon the principle now adopted by the court, that the 5th section of 3 & 4 Ann. c. 9. deprived a party of no remedy he had at common law; that that case must be considered as having virtually overruled Harris v. Benson, which was in Tr. 5 Geo. 2., and that from that time, for any thing which appeared to the contrary, parol acceptances had been held binding, and interest had been allowed against the drawers and endorsers of all inland bills, though no instance could be shewn in which any such bill had been protested.

(26) By 3 & 4 Anne, c. 9. § 5. it is provided, that if such (see § 4. ante, p. 165.) bill be not accepted by such underwriting, or endorsement in writing, no drawer of any such inland bill shall be liable to pay any costs,

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