Payee or Indorsee against Drawer.

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4 Ad. & E. 870. So, it was sufficient where the notice stated that the bill "had been duly presented and returned dishonoured." Ex parte Lowenthal, L. R., 9 Ch. 591. The production of the protest purporting to be attested by a notary-public, when made abroad, is sufficient proof of the protest. Anon., 12 Mod. 345; Bayley on Bills, 490. But, a notarial protest is no evidence that a foreign bill of exchange has been presented for payment in England; Chesmer v. Noyes, 4 Camp. 129; and, a protest made in England, must, it is said, be proved in the ordinary way. Chitty on Bills, 9th ed., 655. But, there is a dictum of Ld. Abinger to the contrary in Brain v. Preece, 11 M. & W. 775. In Geralopulo v. Wieler, 10 C. B. 690; 20 L. J., C. P. 105, it was held (explaining Vandewall v. Tyrrell, M. & M. 87) that upon payment supra protest for the honour of a party, it is enough if, before payment, the bill be in fact protested, and a declaration of payment for honour be made and noted in the notarial register, and that the formal protest may be drawn up afterwards, even after action brought; and, that a duplicate protest made from the notary's book was primary evidence, as much as the protest sent abroad. A promise to pay (though qualified) is an admission by the defendant of due protest for non-acceptance, and notice of it. Campbell v. Webster, 2 C. B. 258.

Waiver or dispensation of notice-Statute.] By sect. 50. "(2.) Notice of dishonour is dispensed with

(a.) When, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged:

(b.) By waiver express or implied. Notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice:

(c.) As regards the drawer in the following cases, namely, (1) where drawer and drawee are the same person" (vide sect. 2, ante, p. 318). "(2) where the drawee is a fictitious person or person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (5) where the drawer has countermanded payment."

Waiver, or dispensation of notice.] See sect. 50 (2), supra. Whenever the want of notice is excused, the circumstances relied upon as the excuse must appear in the statement of claim. See Rules, 1883, App. C., s. 4, No. 6. Therefore, where the defendant told the indorsee beforehand not to send such notice, and that he would pay the amount, this is not evidence to support an averment of notice, but should have been pleaded as a dispensation of it. Burgh v. Legge, 5 M. & W. 418. A mere promise to pay made in anticipation that the bill will be dishonoured, does not dipsense with notice of dishonour. Pickin v. Graham, 1 Cr. & M. 725. But, if the drawer, a few days before the bill becomes due, calls on the holder, and tells him that he has no regular residence, but he will call and see if the bill be paid by the acceptor, this dispenses with notice of dishonour. Phipson v. Kneller, 4 Camp. 285. So, if the holder send a dishonoured bill to the place of business of the indorser, for the purpose of giving notice, and find it closed, he can recover against him without having left a notice, as these facts go to prove a dispensation of notice. Allen v. Edmundson, 2 Exch. 719; Crosse v. Smith, 1 M. & S. 545.

The effect of a promise to pay a dishonoured bill is thus summed up by Byles, J., in Cordery v. Colville, 14 C. B., N. S. 374; 32 L. J., C. P. 210, 211. "A promise to pay may operate either as evidence of notice of lishonour,

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or as a prior dispensation, or as a subsequent waiver of notice. Whether made after, or even before, the time for giving notice has expired,—inasmuch as notice may be given at any time within the limit prescribed by law,-a promise to pay is always evidence from which a jury may infer due notice. But even when the other evidence is conclusive to show that due notice was not given, or when a jury refuses to draw the inference that it was given, yet a promise to pay made within the time for giving notice is a dispensing with notice, and made after that time is a waiver of notice. It is true that a prior dispensation, or subsequent waiver of notice, should be pleaded, but the C. L. P. Act, 1852, s. 222" (and now also Rules, 1883, O. xxviii, r. 1, ante, p. 269), "enables and obliges the court to amend the record, whenever an amendment is necessary in order to decide the real question in controversy between the parties. The practical consequence is, that in almost every case proof of a promise to pay cures the want of notice of dishonour." See also Woods v. Dean, 3 B. & S. 101; 32 L. J., Q. B. 1; and post, p. 358.

Notice excused; no effects.] By sect. 50, (2) (c)(2), ante, p. 353, notice of dishonour is dispensed with where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill. Notice of dishonour to the drawer is unnecessary if he had not, at the time of drawing or before the time of becoming due, any effects either in the hands of the drawee, or consigned on their way to him; Bickerdike v. Bollman, 1 T. R. 405; 2 Smith's L. Cases; nor, a reasonable expectation of having any; Claridge v. Dalton, 4 M. & S. 226. See Carew v. Duckworth, L. R., 4 Ex. 313, cited post, p. 372. This excuse must be alleged in the statement of claim; per Parke, B., in Burgh v. Legge, 5 M. & W. 421. When issue is joined on the want of effects in the hands of the drawee, the terms of the allegation will sufficiently indicate the required proof. The averment is disproved if it be shown that the drawer had effects on their way to the drawee, though they never reached him. Rucker v. Hiller, 3 Camp. 217; 16 East, 43. So, if the drawer had some effects in the drawee's hands at the time when the bill was drawn, though at the time the bill was presented for acceptance and thence until presentment for payment he had not any. Orr v. Maginnis, 7 East, 359. So, though there were no effects at the time the bill was drawn or accepted, provided there were effects when it became due; for the whole period must be looked to from the drawing of the bill till it is due; and notice is requisite if the drawee had any effects at any time during that interval. Hammond v. Dufrene, 3 Camp. 145; Thackray v. Blackett, Id. 164. So, if the drawer has effects in the hands of the drawee, though he is indebted to the drawee greatly beyond that amount. Blackham v. Doren, 2 Camp. 503. So, where there is a running account between the drawer and the drawee, and a fluctuating balance between them, and the drawer has reasonable grounds to expect that he shall have effects in the drawee's hands when the bill becomes due; per Ld. Ellenborough, C. J., Brown v. Maffey, 15 East, 221; or, where the bill is drawn in the reasonable expectation that, in the ordinary course of mercantile transactions, it would be accepted or paid; Claridge v. Dalton, supra; Lafitte v. Slatter, 6 Bing. 623; and see Carew v. Duckworth, post, p. 372; or, where the acceptor has received from the drawer his acceptances upon which he has raised money, and some of which have been dishonoured, and some are outstanding; Spooner v. Gardiner, Ry. & M. 84. And, in general, where the drawer would have any remedy over against a third person (as in the case of a bill drawn for the accommodation of a person to whom he indorses it), notice ought to be alleged and proved. Cory v. Scott, 3 B. & A. 619; Norton v. Pickering, 8 B. & C. 610; Lafitte v. Slatter, supra; Turner v. Samson, 2 Q. B. D. 23, C. A.; Foster v. Parker,

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355

2 C. P. D. 18. It is no excuse of notice, that the plaintiff and the defendant are both shareholders in a joint-stock company, and that the defendant drew the bill on the company (the acceptors) in order to raise money for them, and as an additional security to the plaintiff who advanced the money. Maltass v. Siddle, 6 C. B., N. S. 494; 28 L. J., C. P. 257.

The fact that the drawer of a bill made it payable at his own house is evidence that the bill is an accommodation bill, and so excuses notice of dishonour. Sharp v. Bailey, 9 B. & C. 44.

Notice dispensed with by ignorance of drawer's residence.] Where either want of notice or delay is sought to be excused by the holder's ignorance of the place of residence of the defendant, it is a question for the jury whether he used due diligence to find it; Bateman v. Joseph, 12 East, 433; and time may be allowed for inquiries by post; Baldwin v. Richardson, 1 B. & C. 245. It is not enough to show that inquiries as to an indorser's residence were made at the place at which the bill was payable. Beveridge v. Burgis, 3 Camp. 262. Inquiry should be promptly made of some of the other parties to the bill or note; and of persons of the same name, &c. Bayley on Bills, 6th ed., 281-2; Chapcott v. Curlewis, 2 M. & Rob. 484. Where the holder does not know the drawer's residence, notice of dishonour is to be given, not on the day after the bill becomes due, but on the day after that on which the holder after using reasonable diligence is in a position to give the notice. Gladwell v. Turner, L. R., 5 Ex. 61, per Martin, B.

Calling on the indorser the day after the bill becomes due, to know where the drawer lives, and, on his not being in the way, calling again the next day, and then giving the drawer notice, has been considered sufficient. Browning v. Kinnear, Gow, 81. In one case it was held sufficient, on the dishonour of a promissory note, to make inquiry at the maker's house for the residence of the defendant, the payee, and indorser. Sturges v. Derrick, Wightw. 76.

Where the holder is excused by ignorance from giving notice until after the usual day, the common allegation of notice is still sufficient, if actually given as soon as possible. Firth v. Thrush, 8 B. & C. 387. But, generally, excuse of any notice does not prove an averment of notice; ante, p. 353.

Account stated.] Where the drawer, knowing the plaintiff to be the indorsee of an overdue bill, promises to pay him it, the plaintiff may recover Oliver v. Dovatt, 2 M. & Rob. 230. See ante, p. 341.

on an account stated.

Payee or indorsee against acceptor supra protest, or for honour.-Statute.] Sect. 15. "The drawer of a bill and any indorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonoured by non-acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit."

By sect. 65. "(1.) Where a bill of exchange has been protested for dishonour by non-acceptance, or protested for better security, and is not overdue, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill supra protest, for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn."

“(2.) A bill may be accepted for honour for part only of the sum for which it is drawn."

(3.) An acceptance for honour supra protest in order to be valid must-(a.) be written on the bill, and indicate that it is on acceptance for honour:

(b.) be signed by the acceptor for honour:"

(4.) Where an acceptance for honour does not expressly state for whose honour it is made, it is deemed to be an acceptance for the honour of the drawer.” "(5.) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for non-acceptance, and not from the date of the acceptance for honour." This provision in italics is new.

Sect. 66. 66 (1.) The acceptor for honour of a bill by accepting it engages that he will, on due presentment, pay the bill according to the tenor of his acceptance, if it is not paid by the drawee, provided it has been duly presented for payment, and protested for non-payment, and that he receives notice of these facts."

"(2.) The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted."

Sect. 67. "(1.) Where a dishonoured bill has been accepted for honour supra protest, or contains a reference in case of need," (vide sect. 15, ante, p. 355) “it must be protested for non-payment before it is presented for payment to the acceptor for honour, or referee in case of need.'

66

(2.) Where the address of the acceptor for honour is in the same place where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; and where the address of the acceptor for honour is in some place other than the place where it was protested for non-payment, the bill must be forwarded not later than the day following its maturity for presentment to him."

"(3.) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or nonpresentment for payment." Vide sect. 46, ante, p. 346.

"(4.) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him."

Sect. 68. "(1.) Where a bill has been protested for non-payment, any person may intervene and pay it supra protest for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn."

"(2.) Where two or more persons offer to pay a bill for the honour of different parties, the person whose payment will discharge most parties to the bill shall have the preference."

'(3.) Payment for honour supra protest, in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honour which may be appended to the protest or form an extension of it."

"(4.) The notarial act of honour must be founded on a declaration made by the payer for honour, or his agent in that behalf, declaring his intention to pay the bill for honour, and for whose honour he pays."

(5.) Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is subrogated for, and succeeds to both the rights and duties of, the holder as regards the party for whose honour he pays, and all parties liable to that party." (6.) The payer for honour on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonour is entitled to receive both the bill itself and the protest. If the holder do not on demand deliver them up he shall be liable to the payer for honour in damages."

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"(7.) Where the holder of a bill refuses to receive payment supra protest he shall lose his right of recourse against any party who would have been discharged by such payment."

Sect. 96 repeals stats. 2 & 3 Will. 4, c. 98, and 6 & 7, Id. c. 58, and the provisions of those statutes are replaced by the above sections.

As to presentment, vide ante, pp. 342, et seq., and as to protest, vide ante, p. 352. An acceptor for the honour of the drawer is estopped from

Indorsee against Indorser.

357

setting up what the drawer himself would be estopped from setting up, and he cannot therefore dispute the drawer's signature. Phillips v. Im Thurn, 18 C. B., N. S. 694; L. R., 1 C. P. 463.

Indorsee against Indorser.

In an action by an indorsee against the indorser of a bill, the plaintiff must prove the following matters, if traversed:-1. The indorsement by the defendant; 2. The indorsements between that of the defendant and the plaintiff, when stated in the statement of claim; 3. The presentment to the drawee or acceptor, and the dishonour; 4. Due notice of the dishonour to the defendant.

As to the requisites of a valid indorsement, see sect. 32, ante, p. 336. As to indorsement in blank and special indorsement, sect. 34, ante, p. 337. As to restrictive indorsement, sect. 35, ante, p. 337.

By sect. 2. "Indorsement means an indorsement completed by delivery." By sect. 21 (1), delivery is necessary to complete an indorsement,-as to what amounts to delivery, see sect. 21 (2), ante, p. 321.

By sect. 55. "(2.) The indorser of a bill by indorsing it—

(a.) Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken;

(b.) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorsements;

(c.) Is precluded from denying to his immediate or subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto."

Sect. 56. "Where a person signs a bill otherwise than as drawer or acceptor, he thereby incurs the liabilities of an indorser to a holder in due course."

Sect. 71. (2.) Where the holder of a set indorses two or more parts to different persons, he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills."

It seems that sect. 56 does not apply to promissory notes, vide ante, p. 231. As between indorsee and indorser, to make a valid indorsement the holder must not only write his name and manually deliver the bill with intent to transfer the property therein, but he must intend to stand in the ordinary position of indorser, and guarantee payment of the bill, if the acceptor make default. Denton v. Peters, L. R., 5 Q. B. 475. This defence Iwas held to arise on a traverse of the indorsement. S. C. As to now pleading defence specially, vide post, p. 358.

By sect. 20 (1), ante, p. 321, a simple signature on blank stamped paper delivered by the signer in order to be converted into a bill, operates as a prima facie authority to fill it up to any amount the stamp will cover, using the signature as that of the drawer, or the acceptor, or an indorser. But, if a signature be fraudulently obtained on the back of a bill, without any intention in the writer to indorse the bill, he will not, unless he has been guilty of negligence, be liable as indorser, even at the suit of a bona fide holder of the bill; and this defence has held to arise on a traverse of the indorsement. Foster v. Mackinnon, L. R., 4 C. P. 704, In this case the indorsement of the defendant, a very old man, was obtained on the back of a bill, which he was induced to sign under the fraudulent misrepresentation that it was a guarantee, and the court held that the defendant was not liable, if he had been guilty of no negligence.