Notice of dishonour need not be given if the bill be on CHAPTER an insufficient stamp (p). XV. Where stamp Nor to the indorser of a promissory note not nego- insufficient. tiable (9). Note not negotiable. The necessity of giving notice of dishonour may be CONSEwaived by anticipation, or neglect or delay in giving it, QUENCES OF subsequently to the omission. A subsequent promise to NEGLECT, pay or admission of liability is such a waiver. "A promise HOW WAIVED. to pay may operate either as evidence of notice of dishonour, or as a prior dispensation, or as a subsequent waiver of notice" (r). And a payment of part, or an acknowledgment of liability (s), though after action brought (t), will be evidence of notice (u). It makes no difference that such promise, payment or acknowledgment, were made under a misapprehension of the law, for every man must be taken to know the law (v); otherwise, a premium is held out to ignorance, and there is no telling to what extent this excuse might be carried (x). But, if the promise or acknowledgment be made under a misapprehension of fact, as, if the bill had been presented for acceptance, and acceptance have been refused, a promise to pay, in ignorance of that circumstance, is no waiver of the consequence of laches (y). But a promise to pay will entirely dispense with proof of presentment or notice, and will throw on the defendant the double burthen of proving laches, and that he was ignorant of it (z). Where it is only (p) Cundy v. Marriott, 1 B. & Ad. 696. (q) Plimley v. Westley, 2 Bing. N. C. 249; 2 Scott, 423; 1 Hodges, 824. (2) Code, s. 50 (2) b ; Cordery v. Colville, 32 L. J., C. P. 210. (s) Vaughan v. Fuller, 2 Stra. 1246; Horford v. Wilson, 1 Taunt. 12; Lundy v. Robertson, 7 East, 231; 3 Smith, 225; Brett v. Levett, 13 East, 213; Wood v. Brown, 1 Stark. 217; Hopes v. Alder, 6 East, 16, n.; Dennis v. Morrice, 3 Esp. 158; Rogers v. Stephens, 2 T. R. 713; Dixon v. Elliott, 5 C. & P. 437; Margetson v. Aitken, 3 C. & P. 338; Dans. & L. 157; Lecaan v. Kirkman, 6 Jur., N. S. 17. (t) Hopley v. Dufresne, 15 East, 275. (u) Many of the cases, cited below, fail in drawing the proper (v) Or, more correctly speak- excuse. (x) Billie v. Lumley, 2 East, 469. (y, Goodall v. Dolley, 1 T. R. 712: Blesard v. Hurst, 5 Buir. 2672; Williams v. Bartholomew, 1 B. & P. 326; Stevens v. Lynch, 2 Camp. 332; 12 East, 38. (z) Taylor v. Jones, 2 Camp. 105; Stevens v. Lynch, 12 East, 38; 2 Camp. 332. See instances CHAPTER as to part of the sum, the plaintiff can only avail himself of it as a waiver pro tanto. A drawer of a bill for 200l., who had not received due notice of dishonour, said, "I do not mean to insist on want of notice, but I am only bound to pay you 701." Abbott, C. J.: "The defendant does not say that he will pay the bill, but that he is only bound to pay 701. I think the plaintiff must be satisfied with the 70l." (a). The acknowledgment or promise may be made by the attorney for the defendant, or by his clerk, who has the management of the case (b). It need not be made to the plaintiff, but may be made to another party to the bill, or to a stranger (c). A promise to pay made by the drawer in expectation that a bill will be dishonoured, but before it is dishonoured, does not dispense with notice; for it is to be understood as a promise on condition that due notice is given (d). It seems, however, in some recent cases to have been considered, that a promise to pay is only evidence from which a jury may presume that a notice has been received (e). But that is not so. A promise to pay, if made before the time for giving notice has expired, is a dispensation; if made after that time it is a waiver, independently of any question of actual notice (f). Though a party may waive the consequence of laches, in of promises held insufficient in (b) Standage v. Creighton, 5 C. & In (c) Potter v. Rayworth, 13 East, 417; Gunson v. Metz, 1 B. & C. 193; 2 D. & Ry. 334; Fletcher v. Froggatt, 2 C. & P. 569. Rabey v. Gilbert it was held that sullering judgment by default in an action at the suit of a second indorsee was evidence of notice or of a waiver of notice in an action by the first indorsee. 30 L. J., Exch. 171; 6 H. & N. 536. (d) Pickin v. Graham, 1 C. & M. 725; 3 Tyr. 923; and see (e) Hicks v. The Duke of Beaufort, 4 Bing. N. C. 229; 5 Scott, 598; and see Booth v. Jacobs, 3 Nev. & M. 351; Pickin v. Graham, 1 Cro. & Mee. 728; 3 Tyr. 923; but see Lundie v. Robertson, 7 East, 231; 3 Smith, 225; Haddock v. Bury, 7 East, 236, n.; Anson v. Bayley, B. N. P. 276; Hopley v. Dufresne, 15 East, 275; Norris v. Solomonson, 4 Scott, 257; where the defendant said he had no intention but to pay the bill, and should not avail himself of the informality of the notice, held evidence to go to the jury of notice. Bronwell v. Bonney, 1 Q. B. 39. (f) Cordery v. Colville, 32 L.J., C. P. 211; 14 C. B., N. S. 374; Woods v. Dean, 32 L. J., Q. B. 1; 3 Best & Smith, 101; Kil'y v. Rochussen, 18 C. B. 357. respect of himself, he cannot do so in respect of antecedent CHAPTER parties (g). XV. the Crown. No laches can be imputed to the Crown, and, therefore, Laches not if a bill be seized under an extent before it is due, the imputable to neglect of the officer of the Crown to give notice of the dishonour will not discharge the drawer or indorser (h). waived. A prior dispensation with notice, as absence of effects, Pleading must be specially alleged (i). So must the impossibility where notice of giving notice, or any other excuse for not giving it (k). is excused or And a subsequent promise, when used as a waiver of notice, must also be specially pleaded (). But a subsequent promise to pay, when used as evidence of the fact of notice, need not (m). After the bill is due, a promise to pay, or a part pay- Evidence of ment (n), or the offer of it (o), or any admission of liabi- notice. lity (p), whether before or after the period for giving notice has expired, is prima facie evidence of notice; but though there be no evidence to repel the inference, the jury are not bound to draw it (9). A letter from the defen dant containing no promise of payment, but merely an ambiguous allusion to the bill being dishonoured, was held sufficient to warrant the jury in finding that the defendant had received due notice of dishonour (r). And the sending a person by the defendant, the drawer, to a remote indorsee two days after the bill had become due, to inform him that he, the drawer, had been defrauded of the bill, and that he should defend any action upon it, was left by Lord Tenterden to the jury as evidence to prove notice of dishonour (s). And a statement by the defendant that he should pay the bill, and not avail himself of the informality of the notice, has been held to be evidence of due notice (t). (g) Roscow v. Hardy, 12 East, 434; Turner v. Leach, 4 B. & Ald. 451; Marsh v. Maxwell, 2 Camp. 210, n. (h) West on Extents, 28, 29. (i) Cory v. Scott, 3 B. & Ald. 624; Burgh v. Legge, 5 M. & W. 418; Reg. Gen. Appen. C. 8. 4. (k) Allen v. Edmundson, 17 L. J., Exch. 291; 2 Exch. 719. (1) Cordery v. Colville, 32 L. J., C. P. 211. (m) Lundie v. Robertson, 7 East, 231; Gibbon v. Coggon, 2 Camp. 188. (n) Horford v. Wilson, 1 Tauut. 12. (0) Dixon v. Elliott, 5 C. & P. 437. (p) Jackson v. Collins, 17 L. J., (g) Bell v. Frankis, 11 L. J., (s) Wilkins v. Jadis, 1 Moo. 39. (t) Bronwell v. Bonney, 1 Q. B. CHAPTER And a conditional promise to pay, although the condition XV. be not complied with, is still evidence (u). Notice to produce a notice of dishonour is not necessary (v). (u) Campbell v. Webster, 15 L. J., C. P. 4; 2 C. B. 258; but see Pickin v. Graham, 1 C. & M. 725; 3 Tyr. 923. (v) Swain v. Lewis, 2 C. M. & R. 261; Doe v. Somerton, 14 L. J., Q. B. 210. ACCEPTANCE of a bill is the signification by the drawee of his assent to the order of the drawer; or, in plain terms, a written engagement to pay the bill when due in money, and by no other means (a). (a) Clark v. Cock, 4 East, 72; Russell v. Phillips, 14 Q. B. 891; 19 L. J., Q. B. 297; Owen v. Von Uster, 10 C. B. 318; Code, s. 17. CHAPTER What it is. |