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Thus on a bill or note payable ten days after date, dated the 1st of January, the time does not expire until the 11th.
Instead of an express limitation by years, months or days, we continually find the time on bills drawn or payable at Amsterdam, Rotterdam, Hamburg, Altona, Paris, or any place in France, Cadiz, Madrid, Bilboa, Leghorn, Genoa, or Venice, limited by the usance, that is, the usage between those places and this country; because, in the infancy of bills, all bills between this country and any of those places respectively were usually made payable after the same interval.
An usance between this kingdom and Amsterdam, Rotterdam, Hamburg, Altona, Paris, or any place in France, is one calendar month from the date of the bill; an usance between us and Cadiz, Madrid, or Bilboa, two; an usance between us and Leghorn, Genoa, or Venice, three.
A double usance is double the accustomed time ; an half usance, half.
Where it is necessary to divide a month upon an half usance, which is the case where the usance is either one month or three, the division, (66) not
after date, and dated the 21st July, as payable the 31st (not allowing, however, any days of grace); and in Coleman v. Sayer, 1 Barnard. B. R. 303., in an action upon a bill payable six days after sight, one question was, whether the day of sight was to be reckoned one of the six? and Raymond C. J. said it was not; and the modern practice is conformable to his opinion.
Want of excused. [Chap. VII. of-excused.
withstanding the difference in the length of months, contains fifteen days.
The bankruptcy or known insolvency of the drawee or maker is no (67) excuse for a neglect to make a presentment, or to give notice;
(67) In Russel v. Langstaffe, Dougl. 497. 515. Lee said, arguendo, that it had frequently been ruled by Lord Mansfield at Guildhall, that it is not an excuse for not making a demand on a note or bill, or for not giving notice of non-payment, that the drawer or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends, or otherwise; and Lord Mansfield, who was in court, did not deny the assertion this dictum was also referred to, arguendo, in Bickerdike v. Bollman, 1 Term Rep. 408.
Esdaile & al. v. Sowerby & al. 11 East. Rep. 114. In an action by the indorsees of a bill drawn by Cheetham on Hill in favour of the defendants, and by them indorsed to the plaintiffs, a verdict was found for the plaintiffs, and a case reserved. The bill, which was payable in London, became due on Saturday the 20th of February, when it was presented for payment, and dishonoured. By mistake, notice of non-payment was not given to the defendants, who resided at Liverpool, until the 27th of February, whereas it ought to have been given on the 24th, and they refused payment on the ground of this laches. Before the bill became due, the drawer had stopped payment and become bankrupt, and the acceptor was insolvent. The drawer had himself apprized the defendants of his situation at the time of his stopping payment, and that this bill would not be paid; and they knew that the acceptor had no funds but such as the drawer furnished him with: and on the 25th of February they admitted to the plaintiff's agent that they knew of the insolvency of the drawer and acceptor. It was contended that notice of the dishonour was unnecessary; but the court was clear that the insolvency of the drawer and acceptor, and the knowledge of it, did not dispense with the necessity of giving notice of the dishonour of the bill to the defendants. Postea to the defendants.
Brown v. Massey, post.
See also Smith v. Beckett, and
Nor is a general ceasing to pay. (68)
Sect. 2.Notice (69) must be given of a failure in the attempt to procure an acceptance, though the application for such acceptance might have been unnecessary; otherwise the person guilty of the neglect may lose his remedy upon the bill.
But such neglect will be no bar to a subsequent indorsee, if he took the bill before it became due, and gave value for it, and was ignorant that acceptance had been refused. (70)
(68) See Howe v. Bowes, ante, p. 176.
(69) Vide Blesard v. Hirst, and Goodall v. Dolley, post. (70) O'Keefe v. Dunn, 6 Taunt. 305. (1815. Trin.) A bill at one month after date was drawn by defendants, payable to Sinclair, or order: Sinclair presented it for acceptance, and acceptance was refused, but no notice was given to defendants: Sinclair indorsed the bill to plaintiff for a valuable consideration, before the month from the date expired, but plaintiff had no notice of the prior refusal to accept: when the bill became due it was duly presented for payment, payment was refused, and notice thereof given to defendants. Action inde: defendants pleaded the presentment for acceptance by Sinclair, the refusal and want of notice thereof; plaintiff traversed the presentment and refusal, and after verdict thereon for defendants, rule nisi to enter judgment for plaintiff non obstante veredicto: after cause shewn, and time to consider, Gibbs C. J., Heath and Dallas, against Chambre J., were of opinion that plaintiff was entitled to judgment; that the bill did not necessarily require presentment for acceptance; that defendants therefore had not, by the nature of the instrument, stipulated for such presentment; but that, on the contrary, they had, by its form, agreed that it should be negotiable till the period for payment arrived; that an innocent in
So if the drawee offer a partial or conditional acceptance, or an acceptance at an extended period, or if any other person offer an absolute one, though the holder may be willing to acquiesce in such acceptance, he must (71) give notice.
In that case, however, if he wishes to have the power of availing himself of it, he should mention in his notice the acceptance offered; for a notice generally of non-acceptance shews (72) he did not acquiesce in such offer.
A neglect to give notice, upon the refusal of any thing more than a conditional acceptance, is done away by the completion of those conditions before the bill becomes payable; and a neglect, upon the refusal of any thing more than a partial acceptance, discharges the persons entitled to it only from their responsibility as to the payment of the residue.
The notice must come from the (73) holder, or
dorsee therefore might be deluded, and the negotiation of such bills defeated, if his remedy were to be destroyed by a fact of which he had no notice, and as to which there was nothing to raise a suspicion. Rule absolute. And on error, the judgment was affirmed in the king's bench. Ante, Dunn v. O'Keefe, p. 123. (71) Vide Mar. 4th ed. p. 21. Beawes, § 221. 2d ed. p. 445. (72) Vide Sproat v. Matthews, ante, p. 153. note (47). (73) Ex parte Barclay, 7 Ves. 597. Barclay was indorsee and holder of two bills drawn by Kemp upon Dearlow, and indorsed by Clay to Barclay. These bills were dishonoured, of which Clay gave notice to Kemp; and on petition by Barclay to be allowed to prove these bills under a commission of bankruptcy issued against Kemp, one question was, whether this notice from Clay, and not from Barclay the holder, were suf
some party entitled to call for payment or reimbursement; and though there is no prescribed form for it, ought to import that (74) the person to whom
ficient. And Lord Eldon C.J., after referring to Tindal v. Brown, held that the notice ought to have come from the holder, and dismissed the petition. See Jameson v. Swinton, post.
(74) Tindal v. Brown, 1 Term Rep. 167. 186. A note which became due on the 5th of October, was presented at ten in the morning, and the maker not being at home, word was left for him where it lay; the holder sent again on the 6th, when the maker promised to take it up within the banking hours, which were from nine to four; on the 7th, the holder sent again to the maker, and the note not being paid, gave notice to the defendant, who was an indorser, but the defendant said he had made it his own; the maker had told defendant on the 6th, that he could not pay it, and desired the defendant would: all the parties lived at Bristol. The jury found for the plaintiff; but upon a rule to shew cause why there should not be a new trial, and cause shewn, the court granted a new trial. Lord Mansfield said, "What is reasonable notice is a question partly of fact, and partly of law: it may depend in some measure on facts; such as the distance at which the parties live, the course of the post, &c.; but wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to for the sake of certainty." Per Willes J. "New credit was given to the maker, and I cannot consider notice from the maker equal to notice from the holder." Ashhurst J. "The reasonableness ought to be settled as a question of law; the next day at the most is as long as is necessary in a case like this; if the parties live at a small distance, this is a sufficient time; if at a greater, they should write by the next post. Notice means something more than knowledge, because it is competent to the holder to give credit to the maker: it is not enough to say that the maker does not intend to pay, but that the holder does not intend to give credit; the party ought to know whether the holder intends to give credit to the maker, or to resort to him." Per Buller J. "When the post goes out, is a matter of fact; when that is established, it is a matter of