« EelmineJätka »
Sheppard and Co. during the time the bill was running. It was holden, that the drawer was entitled to notice of dishonour. These cases appear to have been decided on the ground, that the drawer had a remedy over, at all events, against the party in whose favour the bill was drawn, if not against the acceptor, and consequently the drawer would be prejudiced by the want of notice. In Plimley v. Westley, 2 Bingh. N. C. 249, where plaintiff had received from defendant, in payment for goods, a promissory note, indorsed by defendant, but not made payable to order, the note having been dishonoured by the maker; it was holden, that the plaintiff was entitled to recover the price of the goods, although he had omitted to give defendant due notice of the dishonour of the note.
Action by plaintiff, as drawer, against defendant, as acceptor of a bill for 300l. at two months, accepted payable at Messrs. Coutts and Co.; no proof of notice to defendant of dishonour; but proof that, although defendant when bill was drawn had a balance of 700l. in the hands of Messrs. Coutts and Co., yet that balance at the time when the bill became due was reduced to 401. Heldr that defendant was not entitled to notice of dishonour. Q. if in such case any notice be necessary, for the acceptor having appointed a special place for payment, may be considered as having made Messrs. Coutts and Co. his agents for the purpose of paying the bill, and then their refusal to pay may be considered as a refusal by him. From the circumstance of part payment of a bill without any objection to the want of notice, a jury may be directed to presume that notice was regularly given.
Protest.-In addition to notice of dishonour, it is necessary for the holder, in the case of a foreign bill, to protest (12) it for non-payment; but where there has been a promise of payment, after the bill became due, such promise supersedes the necessity of proving either presentment for paymentt, notice of dishonour, or protestu. But where the drawer of a foreign bill of exchange, at the time of the drawing, was in a foreign country, but returned home before it became due, at which time it was dishonoured and protested, but notice of the dis
r Smith v. Thatcher, 4 B. and A. 200. s Horford v. Wilson, 1 Taunt. 12.
t Greenway v. Hindley, 4 Campb. 52. u Gibbon v. Coggon, 2 Campb. 188.
12) See the form of protest used in England. Chitty on Bills,
honour only, and not of the protest, was left at the drawer's house, held that this was sufficient. It appears, from a passage extracted from the case of Tassell v. Lewis, Lord Raym. 743, ante, p. 350, that this protest ought to be made on the last day of grace (13). This strictness, however, is not observed in practice. The modern usage is for the notary to make a minute on the bill, consisting of his initial, the day, month, and year when
payment was refused, and charges for making the minute. This minute, which is called noting, is unknown in the law as distinguished from the protest. The notary having made his minute, draws up the protest at his leisure. In Buller's Nisi Prius, p. 272, it is said, “That the use of noting is, that it should be done the very day of refusal, and the protest may be drawn any day after by the notary, and be dated of the day the noting was made.” The practice certainly is as here stated; but in Chaters v. Bell, 4 Esp. N. P. C. 48, a question was raised, whether the protest ought not to be drawn on the day on which the bill is dishonoured; and it was contended, that the mere noting the bill on that day, and drawing the protest on a subsequent day, was insufficient. Lord Kenyon was of opinion that it was sufficient; and a new trial having been granted, Lord Ellenborough agreed in opinion with Lord Kenyon. A case was then reserved for the opinion of the court, and after argument, the court, conceiving the question to be of great importance, directed it to be turned into a special verdict. But the sum in dispute being very small, and the parties unwilling to incur the expense of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again.
The protest must be stamped. The protest for non-payment on inland bills of exchange is regulated by the statute 9 and 10 W. 3. c. 17; for at common law a protest was not required on such bills; and the power of protesting given by this statute is attended with very few advantages; so that it is not very frequently exercised.
Doubts having arisen as to the place in which it is requisite to protest for non-payment bills of exchange, which on the presentment for acceptance of the drawees shall not have
x Robins v. Gibson, 1 M, and S. 288.
(13) With regard to foreign bills of exchange, all the books agree that the protest must be made on the last day of grace. Per Buller, J. in Leftley v. Mills, 4 T. R. 174.
been accepted, such bills being made payable at a place other than the place mentioned therein to be the residence of the drawees, it was for the removal of such doubts enacted, by stat. 2 & 3 W. 4. c. 98. [9th August, 1832,] that all bills of exchange wherein the drawers shall have expressed that such bills are to be payable in any other place by them therein mentioned to be the residence of the drawees, and which shall not on the presentment for acceptance thereof be accepted, shall or may be, without further presentment to the drawees, protested for non-payment in the place in which such bills shall have been by the drawers expressed to be payable, unless the amount owing upon such bills shall have been paid to the holders on the day on which such bills would have become payable had the same been duly accepted.
Bills of exchange had been occasionally accepted, supra protest for honour,
or had a reference thereon in case of need; doubts having arisen as to the day on which it was requisite to present for payment such bills to the acceptors for honour, or referees, by stat. 6 & 7 W. 4. c. 58. s. 1. (13 Aug. 1836, it was declared and enacted, that it shall not be necessary to present such bills to such acceptors for honour, or to such referees, until the day following the day on which such bills shall become due; and if the place of address on such bill, or such acceptance for honour, or such referee, shall be in any city, town, or place, other than in the city, &c. where such bill shall be therein made payable, then it shall not be necessary to forward such bill for payment until the day following the day on which such bill shall become due; and by s. 2. if the day following the day on which such bill shall become due shall be Sunday, Good Friday, or a Fast or Thanksgiving, then the day following such Sunday, &c. will be sufficient.
The holder of a check is not bound to give notice of its dishonour to the drawer, for the purpose of charging the person from whom he received it. It is sufficient, if he presents it with due diligence to the bankers on whom it is drawn, and gives due notice of its dishonour to those only against whom he seeks his remedy. If a banker in London receives a check, by the general post, one day, and presents it for payment the next day, he will be considered as having used due diligencey. Where a check drawn by a customer on a banker, for a sum of money described in the body of the check in words and figures, was afterwards altered by the holder, who substituted a larger sum for that mentioned, but in such a
y Rickford v. Ridge, 2 Campb. 537,
manner that no person in the ordinary course of business could observe it, and the banker paid to the holder, this larger sum; it was holden?, that the banker could not charge the customer for any thing beyond the sum for which the check was originally drawn. But where a customer of a banker delivered to his wife certain printed checks signed by himself, but with blanks for the sums, requesting his wife to fill the blanks up according to the the exigency of his business, she caused one to be filled up with the words, fifty pounds, two shillings, the fifty being commenced with a small letter and placed in the middle of the line—the figures, 50l. 28. were also placed at a considerable distance from the printed £. In this state the wife delivered the check to her husband's clerk to receive the amount; instead of which he inserted at the beginning of the line in which the word fifty was written, the words three hundred and, and the figure 3 between the £ and the 501. The bankers having paid the 3501. 28.; it was holdena, that the loss must fall on the customer; for it was the fault of the customer; who ought to have selected for the care of such a check a person conversant with business as well as trustworthy, who would have guarded against fraud in his mode of filling up the check.
VII. Of the Acts of the Holder whereby the Parties to the
Bill may be discharged.
If the holder enter into a composition with the acceptor, he thereby discharges the indorserb. So if the indorsee receive part payment from the acceptors, and take from him a security for the remainder, with the exception of a nominal sum, the indorser is discharged. Receipt of part of the money from an acceptor will not discharge the drawer, if timely notice be given that a bill is not duly paid. Bull. N. P. 271. The receipt of part of the sum mentioned in the bill from the drawer, will operate as a discharge to the acceptor, only pro tanto. Bacon v. Searles, 1 H. Bl. 88. Notwithstanding the receipt of part from the indorser, the holder may recover the whole amount of the bill from the drawer. Johnson v. Kenyon, 2 Wils. 262. Walwyn v. St. Quintin, i Bos. and Pul. 652. Where the holder, after receiving part payment from the acceptord, agreed to take a new acceptance from him for the remainder, payable at a future date, and that in the mean time the holder should keep the original bill in his hands as a security; it was holden, that such agreement amounted to giving time and a new credit to the acceptor, and discharged the indorser, who was not a party to such agreement.
z Hall v. Fuller, 5 B. & C. 750.
p. 168, 169. 3 Bro. Ch. C. 1. S. C.
c English v. Darley, 2 Bos.and Pul. 61.
See the opinion of Eldon, C. J.
But a mere forbearance to sue the acceptor after protest for non-payment, and notice, or what is equivalent to notice, thereof to the drawer, will not discharge the drawer. If the executor of the acceptor verbally promise to pay the holder out of his own estate, provided the holder forbear to sue, and he forbears accordingly, the drawer is not thereby discharged, inasmuch as the promise of the executor, not being in writing, is void by the statute of frauds, and, consequently, the holder does not derive from such promise any better security than the bill had given him. Philpot v. Briant, 4 Bingh. 717.
A bill of exchange having been dishonoured, the acceptor transmitted a new bill for a larger amount to the payee,
but had not any communication with him respecting the first. The payee discounted the second bill with the holder of the first which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to plaintiff: it was holdenf, that the second bill was merely a collateral security, and that the receipt of it by the payee did not amount to giving time to the acceptor of the first bill so as to exonerate the drawer. The cases ex-parte Smith and English v. Darley, seem to have proceded on a principle of law resulting from the relation in which the acceptor of a bill of exchange may be considered as standing with respect to the other parties. Although by his acceptance he only undertakes to pay the debt of another, viz. of the drawer, yet is he primarily liable; for it is incumbent on the holder of the bill to resort to him in the first instance. Under this view, although his engagement is really only a collateral engagement, yet he may be considered as the principal debtor, and the remaining parties as sureties only. Now, in the case of simple
d Gould v. Robson, 8 East, 576.
Quintin, i Bos. and Pul. 652. fully
stated, ante, p. 358. f Pring v. Clarkson, 1 B. and C. 14.