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CHAPTER
XIV.

Protest of in

in protesting, provided the bill be protested within a reasonable time after the cause of the delay ceases to operate, or the delay be not attributable to the holder's default (). Hence protest of a foreign bill is excused, if the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honoured (k); or, if the drawer has admitted his liability, by promising to pay. "By the drawer's promise to pay,' observes Lord Ellenborough," he admits the existence of everything which is necessary to render him liable. When called upon for payment of the bill, he ought to have objected that there was no protest. Instead of that he promises to pay it. I must, therefore, presume he had due notice, and that a protest was regularly drawn up by a notary" (7).

And it is said, that where the drawer adds a request or direction, that in the event of the bill not being honoured by the drawee, it shall be returned without protest, by writing the words "retour sans protêt," or sans frais," a protest as against the drawer, and perhaps as against the indorsers (m), is unnecessary.

66

Protest of an inland bill is optional and but rarely land bills and resorted to (n). notes,

of a lost bill.

The loss or destruction, or wrongful detention of a bill, is no excuse for the absence of protest; but where a bill is either lost or destroyed or wrongfully detained from the true holder, protest may be made on a copy or written particulars thereof (0).

(i) Sect. 51 (9). See post, Chapter on Notice of Dishonour.

(k) Legge v. Thorpe, 12 East, 171; 2 Camp. 310; post, p. 248.

(1) Gibbon v. Coggon, 2 Camp. 188: 11 R. R. 692: Patterson v. Beecher, 6 Moore, 319; Greenway v. Hindley, 4 Camp. 52.

(m) 1 Pardessus, 540; Chitty, 10th ed. 114. The drawer may, as we have scen, qualify his contract in writing on the bill by waiving as against himself any of the holder's duties, s. 16. Quare, whether this would bind an indorser unless he expressly waived too.

(n) Unless an acceptance for honour be desired. Code, ss. 51

(1) and (5); 65 (1). Formerly a protest was held necessary in order to recover interest. Harris v. Bensom, 2 Stra. 910; overruled by Windle v. Andrews, 2 B. & Ald. 696; 2 Stark. 425. Protest of an inland bill or note is, it is conceived, unknown to the common law, though those payable after date might be protested under the 9 & 10 Will. 3, c. 17 (now repealed), or the 2 & 3 Will. 4, c. 98 (also repealed), and as notes were put on the same footing as bills by the 3 & 4 Ann. c. 9 (repealed), presumably they also fell within the above acts.

(0) Poth. 145; Code, s. 51 (8).

XIV.

In an action against the drawer of a foreign bill, protest CHAPTER must formerly have been averred (p) as well as proved; and it has been held that, if protest of an inland bill be set Pleading. forth in pleading, it must be proved (q). But this decision proceeded on the ground that an allegation of protest of an inland bill involved a consequential claim for interest and costs; whereas it has been since decided, that such a claim may be made without protest (r).

In an action on a foreign bill, presented abroad, the dis- Evidence. honour of the bill will be proved by producing the protest, purporting to be attested by a notary public; or, if there is not any notary near the place, purporting to have been made by an inhabitant, in the presence of two witnesses (s). But a protest made in England is not evidence of the presentment here (†).

A promise to pay is good prima facie evidence of Effect of a protest (u), and of notice thereof (r).

(p) But the absence of the allegation of protest is a defect of form only. Solomons v. Stavely, 3 Doug. 298; Gale v. Walsh, 5 T. R. 239; 2 R. R. 580; Armani v. Castrique, 13 M. & W. 443.

(q) Boulager v. Talleyrand, 2 Esp. 550.

(r) Windle v. Andrews, 2 B. & Ald. 696; 2 Stark. 425.

(*) Anon., 12 Mod. 345; Rep.

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SUBJECT to the other provisions of the Code when a bill of exchange is dishonoured by non-acceptance, or a bill of exchange or a promissory note is dishonoured by non-payment, notice of dishonour must be given to the drawer and indorsers of the bill, or the indorsers of the note, and any drawer or indorser, to whom such notice is not given, is discharged (a).

Where a bill has been dishonoured by non-acceptance, and notice of dishonour is not given, a subsequent holder in due course is not prejudiced.

Where a bill has been dishonoured by non-acceptance, and due notice has been given, notice of a subsequent dishonour by non-payment is not required unless the bill have been accepted in the meantime. The requisites of notice and the consequences of neglect being much the same in both cases, under the general head of notice of dishonour, will be considered notice of non-acceptance and notice of non-payment.

CHAPTER

XV.

SUBJECT.

In considering this subject, let us inquire, first, what DIVISION form of notice is required; secondly, how notice is to be OF THE transmitted; thirdly, at what place it is to be given; fourthly, at what time; fifthly, by whom it must be given; sixthly, to whom; seventhly, what are the consequences of neglect; eighthly, how notice may be excused or waived; and lastly, how it may be proved.

WHAT FORM

First, as to the form of notice. Notice does not mean mere knowledge, but an actual notification. For a man who OF NOTICE IS

(a) Code, ss. 48 and 89. The other provisions seem to be those in sects. 49 (15) and 50, relating to delay in or excuse of notice. Bleasard v. Hirst, 5 Burr. 2672 ; Goodall v. Dooley, 1 T. R. 712: 1 R. R. 372. And the parties who are entitled to notice of nonacceptance are discharged for want of it, and are not liable for subsequent non-payment; Roscow v. Hardy, 12 East, 434; unless the bill come into the hands of a subsequent indorsee for value, who was not aware of the dishonour, s. 48 (1); O'Keefe v. Dunn, 6 Taunt. 305; 1 Marsh, 613; 16 R. R. 623; Dunn v. O'Keefe, 5 M. & S. 282; 17 R. R. 326; Whitehead v. Walker, 9 M. & W. 506. See Goodman v. Harvey, 4 Ad. & El. 870; 6 N. & B.B.E.

M. 372. Where a bill was re-
indorsed to a prior indorser, and
in the interval had been dis-
honoured by a refusal to accept,
of which refusal the drawer had
had no notice, it was held that the
plaintiff declaring as immediate
indorsee of the drawer, the defen-
dant might plead those facts
without averring that the plain-
tiff gave no value,or was not again
indorsee before the bill became
due, or had knowledge of the
facts; Bartlett v. Benson, 15
L. J., Exch. 23; 14 M. & W. 733;
3 D. & L. 274; and if notice of
non-acceptance be given,the right
to recover of the prior parties the
full amount of the bill imme-
diately, however distant its
maturity, is complete. White-
heid v. Walker, 9 M. & W. 506.
15

REQUIRED.

CHAPTER
XV.

can be clearly shown to have known beforehand that the bill would be dishonoured is nevertheless entitled to notice (b).

No particular form of notice is required. It may be either written or oral, or partly written and partly oral, and need not be signed; a simple return of the bill or note itself is sufficient (c). All that is now necessary seems to be to apprise the party liable of the dishonour of the bill or note by non-acceptance or non-payment in terms that sufficiently identify the instrument (d); the announcement of the dishonour (at least if it come from the holder) amounting to a sufficient intimation to the indorser, that he is held liable (e). But where a mere demand of payment was made, the Court observed, "There is no precise

(b) See Burgh v. Legge, 5 M. & W. 418; Caunt v. Thompson, 18 L. J., C. P. 127; 7 C. B. 400.

(c) Code, s. 49 (5) and (7). The mere return of the bill without more was a practice rarely resorted to except by bankers ; it is now expressly recognised. Sub-sect. (6); Maxwell v. Brain, 10 L. T., N. S. 381. The construction of a parol notice is for the jury, of a written notice for the Court, and therefore, perhaps, a parol notice may be good where the same words, if in writing, might be held insufficient. See Metcalfe v. Richardson, 11 C. B. 1011; and Phillips v. Gould, 8 C. & P. 355.

(d) Sub-sect. (5). Formerly it seems to have been considered that an intimation that the party would be looked to for payment was necessary in the notice if given by an indorser. East v. Smith, 16 L. J., Q. B. 292; 4 D. & L. 744. But the Code seems to make no distinction between notice from the holder, and that from an indorser. Neither does it apparently make an averment of due presentment necessary in a notice, or, where presentment is excused, an averment that the bill is overdue and unpaid. But unless the word "dishonoured be used, which probably would imply such, sect. 47, it would be safer to add such an averment.

(e) It was held in Furze v. Sharwood, 2 G. & D. 146 ; 2 Q. B.

388, that a notice of the dishonour of a bill of exchange sent by the holder, need not contain an announcement that the holder looks to the party to whom it is addressed for payment, but that if the notice do not come immediately from the holder, such an intimation may perhaps be necessary. See also East v. Smith, 16 L. J., Q. B. 292; 4 Dowd. & L. 744. The formal protest itself, for which the notice is substituted, contains no such announcement. And see Mires v. Brown, 11 M. & W. 372, where Mr. Baron Alderson says, "knowledge of dishonour, obtained by communication from the holder of the bill amounts to notice ;" and the observation of Cresswell, J., in Caunt v. Thompson, 18 L. J., C. P. 128; 7 C. B. 400. In King v. Bickley, 2 Q. B. 419, it was held not necessary to state in a notice of dishonour, that the holder looks to the other party for payment, and that the mere sending of notice of dishonour is itself a sufficient intimation for that purpose. The following was the form of notice:-"Sir, I hereby give you notice that a bill for 507., at three months after date, drawn by J. L. upon and accepted by J. E., of Blenheim Street, Chelsea, and indorsed by you, lies at No. 6 Ely Place, dishonoured. Yours, &c. (Signed) WM. KING." See Chard v. Fox, 14 Q. B. 200.

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