It is no excuse for not giving notice to the drawer that he had in fact no funds in the hands of the drawee if he had made a provision to have such funds there, and might reasonably expect they were there. (123)

As if he drew upon a cargo he shipped for this kingdom, and such cargo was in the hands of a broker, who was to pay the proceeds to the drawee. (123)

the drawer might have been prejudiced by want of notice, and the rule refused.

(122) Corey v. Scott, 3 Barnew. 619. Endorsee against drawer, on bill drawn by defendant on Gordon, and accepted by him, payable to defendant, endorsed by him to Lough, and by Lough to plaintiff; no evidence of notice to defendant; excuse that defendant had no effects in Gordon's hands; answer, that Lough was to provide for the payment, and that Gordon, and defendant Scott both lent their names to accommodate him. Abbott C. J. thought this rebutted the excuse from want of effects; and nonsuit: and on rule nisi to enter verdict for plaintiff, and cause shewn, the court was clear defendant was entitled to notice, for had he taken up the bill he might certainly have sued Lough, if not Gordon: he was, therefore, in a situation in which want of notice might have hurt him, and if so he was entitled to notice; and rule discharged.

(123) Robins v. Gibson, 3 Campb. 334. To excuse want of notice to the drawer of a foreign bill, the drawee proved that he had in fact no funds of the drawer in his hands from the time the bill was given till its becoming due: but he said the bill was drawn on a cargo shipped by the drawer for England, that the cargo was in the hands of a broker for sale, and when it was sold, the proceeds were to be paid to him to answer the bill: and Lord Ellenborough held, that under these circumstances, as the bill was drawn on expected funds, the drawer was entitled to notice: plaintiff then proved notice, and had a verdict.

And see 1 Bos. and Pull. 655; and 12 East, 175.

[In an action against the drawers of a bill protested for non-acceptance, it was proved that the drawees had no funds in their hands when this bill was presented, having accepted bills previously drawn by the defendants to a greater amount than the funds in their hands; and that the want of funds arose from a fall in the price of cotton shipped by the drawers to the drawees. It was held that the action could not be maintained without proving seasonable presentment and sufficient notice of the dishonor to the drawers. Spencer C. J. delivered the opinion of the court. "It has repeatedly been decided, that where there are any funds in the hands of the drawee, so that the drawer has a right to expect the bill will be paid, or where there are not any funds, yet, if the bill was drawn under such circumstances as induced the drawer to entertain a reasonable expectation that the bill would be accepted and paid, the person so drawing it is entitled to notice; and a fortiori he is entitled to have the bill duly presented." But judgment was given for the plaintiff in this case, because the court thought that there had been no laches. Robinson v. Ames, 20 Johns. R. 146.

See also French v. Bank of Columbia, 4 Cranch, 141.

Where the drawer had funds in the hands of the drawee at the time of drawing the bill, but those funds were attached in the hands of the

If the drawer had effects in the hands of the drawee at the time when the bill was drawn, it has been held he (124) is entitled to notice of non-acceptance; although at the time when the bill was presented for acceptance, and from thence until presentment for payment, he had not any.

So if he had effects in the hands of the drawee, when the bill was presented for acceptance, it has been held he will be entitled to notice of non-acceptance (125), although he was indebted to the drawee greatly beyond the amount of such effects.

Notice to the drawer is not necessary, though he had supplied the drawee with goods, if those goods were supplied

drawee by the trustee process of Massachusetts, before the bill was presented for acceptance, it was held that the drawer could not be charged without due notice of the non-acceptance being proved. Stanton v. Blossom, 14 Mass. R. 116.]

(124) Orr and others v. Maginnis, 7 East. Rep. 359. In an action by the payees against the drawer of a foreign bill, payable at ninety days after sight, the declaration averred presentment for acceptance and refusal, presentment for payment and refusal, and protest for nonpayment; it then averred, that at the time of making the bill, and from thence until presentment for payment, the defendant had no effects in the hands of the drawees. At the trial it appeared, that at the time of drawing the bill, the defendant had effects in the hands of the drawees, but to what amount did not appear: but that when the bill was presented for acceptance, and thence until presentment for payment, he had not any. The bill was only noted for non-acceptance, but was protested for non-payment: no notice of non-acceptance was given to the defendant. The plaintiffs had paid the amount of the bill to an endorsee. They were nonsuited for want of proving protest for, and notice of, non-acceptance. On motion to set aside the nonsuit, Bickerdike and Bollman, and other cases, were cited to shew that no notice, and therefore no protest, was necessary. But Lord Ellenborough said, that that case went on the ground that there were no effects in the hands of the drawee at the time when the bill was drawn; and the other cases followed on the same ground; but that no case had extended the exemption to cases where the drawee had effects of the drawer's in his hands at the time when the bill was drawn, though the balance might vary afterwards, and be turned into the opposite scale. Rule refused. (125) Blackhan v. Doren, 2 Campb. N. P. C. 503. This was an action against the drawer of a bill for £250 payable after sight; of which acceptance had been refused; and to excuse the want of notice of nonacceptance, it was proved that when the bill was presented, though the drawer had effects in the hands of the drawees to the amount of £1500, yet that he owed them £10,000 or £11,000. And that they had appropriated the effects to go in satisfaction of this debt. This appropriation, however, was without the defendant's privity. Lord Ellenborough held, that a notice was necessary, and nonsuited the plaintiff. [See also Robinson v. Ames, ante, p. 194.]

upon a credit which had not expired, and the drawer could entertain no reasonable expectation that the drawee would pay the bill; (126)

And could have no remedy againt him for not doing so. (126)

The drawer is entitled to notice, though he had no effects in the hands of the drawee at the time the bill was drawn, or at the time it was accepted, if he had before it became due. (127) (128)

And it has been held that the drawer is entitled to notice, if he has any effects in the hands of the drawee at the time the bill becomes due. (128)

Though such effects are not equal to the sum in the bill. (128)

And if there are several bills in the hands of the same owner becoming due on different days, the drawer is entitled to notice as to each, though the effects in the drawee's hands are not equal to any of the bills. (128)

And a neglect to give notice will discharge the drawer as to all. (128)

It is no excuse for not giving notice to the drawer that the bill, before it became due, had been accidentally destroyed, and that he had refused to give a new bill according to 9 & 10 W. 3. c. 17. (128)

The drawee's insolvency is no excuse for not giving notice. (128)

(126) Claridge v. Dalton, 4 Maule, 226. Defendant drew upon Pickford for £300, at two months after date: defendant had supplied Pickford with goods to the amount of £200, and between June and September he supplied him with £70 worth more; but, according to their course of dealing, the goods were to be paid for by acceptance at the end of the year. Defendant being sued by an endorsee, insisted upon want of notice but on point saved the court held, that under the circumstances, as he had no ground for expecting that Pickford would pay the bill, and as notice could have done him no service, he had no right to object to the want of it; and rule nisi for nonsuit discharged.

(127) Hammond v. Dufresne, 3 Campb. 145. Action against drawer on bill for £301: proof, that at the time the bill was drawn and accepted, defendant had no effects in the hands of the drawees; but it appearing, that before the bill became due he paid £400 for them, Lord Ellenborough held want of notice not excused; and nonsuit.

(128) Thackray v. Blackett, 3 Campb. 164. Plaintiff had two bills for £1833 each, drawn by defendant on Preston and Co., due the 13th

Though notice to the drawer may be dispensed with, where it is shewn he had no effects in the hands of the drawee, or any right to expect payment by him, yet evidence (129) cannot be received for the purpose of shewing that the drawer has not, from the insolvency of the drawee, or other causes, been prejudiced by the want of such notice.

It is no excuse for not presenting a bill in due time, and giving notice to the drawer, that the acceptor had told the drawer he could not take up the bill and the drawer must, and that the acceptor had given the drawer part of the amount for that purpose. (130)

But the money so given may be recovered by the holder of the bill against the drawer as money had and received to the holder's use. (130)

and 20th of April, 1810; they were accepted, but before they became due they were, by mistake, destroyed by Preston and Co: plaintiff applied to defendant for new bills in their stead, according to 9 & 10 W. 3. c. 17. but defendant would not give them. Preston and Co. became insolvent before April, 1810, owing defendant £1000: the bills had been drawn for defendant's accommodation, but during their currency defendant came under engagement for Preston and Co., which created the debt from them of £1000. On the 13th and 20th of April, 1810, payment of each sum was demanded of Preston and Co. and refused, but no notice thereof was given to defendant. Lord Ellenborough thought defendant entitled to notice as to each sum, and discharged by want thereof as to each, and nonsuited plaintiff, and B. R. refused to set aside the nonsuit.

(129) Dennis v. Morrice, 3 Esp. N. P. C. 158. In an action on a bill, brought by an endorsee against the drawer, it appeared that no notice had been given to the defendant of non-payment by the acceptor: to excuse which the plaintiff offered to prove, that, in fact, the defendant had not been prejudiced by the want of such notice. But Lord Kenyon said, the only case in which notice is dispensed with, is where the drawer had no effects in the hands of the drawee. This would be extending the rule still further than ever has been done, and opening new sources of litigation, in investigating whether, in fact, the drawer did receive a prejudice from the want of notice or not. He rejected the evidence, and nonsuited the plaintiff.

(130) Baker v. Birch, 3 Campb. 107. In an action against the drawer of a bill for £23, it appeared, that before it became due the acceptor told defendant he could not pay it, but defendant must, and that he gave him five guineas towards it; but the bill was not presented for payment till some days after it became due, nor was proper notice given of its dishonor; and Lord Ellenborough held defendant discharged upon the bili for want of notice, but he thought plaintiff entitled to recover the five guineas as so much money received to his use; and verdict accord

It is (131) no excuse for not giving notice to the drawer, that on an apprehension that the bill would be dishonored, he lodged other money, which he had of the drawee's, in the hands of the endorser, on an undertaking by the endorser, that he would return it whenever it should appear that he was exonerated from the bill; for his having other money of the drawee's does not entitle him to apply it to the dishonored bill, unless he has due notice of the dishonor.

Nor (132) is it any excuse for not giving notice, &c. to the drawer of a bill, if he had effects in the hands of the drawee, that the drawee represented to the drawer when the bill was drawn, that he should not be able to provide for it, and that the drawer thereby understood that he should have to provide for it.

(131) Clegg v. Cotton, 3 Bos. and Pull. 239. Endorsees against the drawer of a bill. The bill was drawn in America on Cullen, of Liverpool, in favor of Miller and Robertson, and by them endorsed to Booth and Co., and it afterwards came to the plaintiff's hands. It was dated in 1794, and drawn at ninety days' sight. In 1800, the defendant having other effects of Cullen's in his hands, deposited them with Miller and Robertson and Booth and Co., on an undertaking from them that they would return these effects whenever it should appear that they were exonerated from this bill. Cullen afterwards became bankrupt: the defendant was arrested, and then said that he should apply to Cullen's assignees to bail him, for he had lodged property in America to answer the bill, and if he was discharged by want of notice, he should pay it over to them. Acceptance and payment were both refused, but no notice was ever given of it to the defendant. Chambre J. nonsuited the plaintiff on the ground that the defendant was discharged for want of notice and on rule nisi to set aside the nonsuit, and cause shewn, the court held, that the special circumstances did not excuse the want of notice; that there was no fraud in the defendant, which was the ground of the rule for dispensing with notice; and that when Miller and Robertson, and Booth and Co. were exonerated, which they also were by want of notice, the money deposited with them belonged to Cullen's assignees. Rule discharged.

:

N. It did not appear that the defendant had got back the property which he deposited, but that circumstance was not relied on.

(132) Staples v. Okines, Esp. 332. In an action against the drawer of a bill, the defence was want of notice; the plaintiff thereupon called the acceptor, who proved that when the bill was drawn he was indebted to the defendant in more than the amount of the bill, but that he then represented to the defendant that it would not be in his power to provide for the bill when it should become due, and that it was therefore then understood between them, that the defendant should provide for it, and it was contended that this superseded the necessity of giving the defendant notice; but Lord Kenyon held it did not, and nonsuited the plaintiff