Who is to give notice. What will excuse notice. Protest necessary. expressly, for it is justly implied that the holder looks to the indorser. The party receiving notice is bound to give notice likewise to those who stand behind him, and to whom he means to resort for indemnity; and if a second indorser, on receiving notice of the dishonour of the bill, should neglect to give the like notice with due diligence, to the first indorser, the latter would not be liable to him. It is not necessary in the case of notice of nonacceptance or non-payment of a bill, that a copy of the bill and protest should accompany the notice. It is sufficient to give notice of the fact. There are many cases in which notice is not requisite, or the want of it is waived. If the drawee refuses to accept because he has no effects of the drawer on hand, notice to the drawee is not necessary. Notice is requisite if the want of it would produce detriment, as if in case notice had been given and the bill taken up, the drawer would have had his remedy over against some third person; or if it was drawn with a bona fide expectation of assets in the hands of the drawee, as upon the faith of consignments not come to hand, or upon the ground of some fair mercantile agreement. The exception applies only to the drawer, and not to the indorser of a bill drawn without funds. Neither the insolvency of the drawer, or drawee or acceptor, or the fact that the drawer has absconded, does away with the necessity of a demand of payment and notice to the drawer or indorser; nor does knowledge in the indorser, when he indorsed the paper, of the insolvency of the maker of the note or drawee of the bill, do away with the necessity of notice in order to charge him. In case of bankruptcy of the party entitled to notice, the holder is bound to give notice to the assignee. If the notice of nonacceptance or non-payment be not given, or a demand on the maker of a promised note be not made, yet a subsequent promise to pay by the party entitled to notice will amount to a waiver of the want of demand or notice, provided the promise was made clearly and unequivocally and with full knowledge of the fact of a want of due diligence on the part of the holder (a). Germany.-In order to proceed against the drawer and (a) Kent's Commentary, vol. iii. p. 133. indorser, it is requisite to prove that the bill has been presented for payment, and that the presentation and non-payment are embodied in a protest made in due time. The protest may be made the same day when the bill became due, but cannot be made later than the second working day after it. The request not to protest the bill often inserted by the words "without protest," "without expenses," &c., is considered a dispensation of the protest, though not a dispensation to present the bill in due time. It is with the obligee of the bill to prove that the bill was not presented in due time. Nor does such a request dispense with the obligation to pay the charges of protest. A bill payable at the residence of other parties must be presented for payment at the residence of such parties, and if no other parties are named, it must be presented to the drawee himself, at the place of his residence; and if the payment is not made, the bill must be protested at that place. If the bill is not duly Notice of proprotested at the residence of the parties indicated in the instru- test necessary. ment, the right of recourse is lost not only against the drawer and indorsers, but against the acceptor also. But except in the above case the right against the acceptor will not be lost by the non-presentation of the bill or the want of a protest. The holder of a bill protested for non-payment is bound to give a written notice to his immediate indorser of the non-payment within two days after the protest, and it is sufficient if he can prove to have posted the letter within that time. Every person on whom notice has been served must in the same way notify the protest to the preceding holder within the same time, which is calculated from the day the notice has reached him. The holder who omits to give notice is liable for all the damages which may thereby arise to the other indorsers, and loses his rights against these parties. If the indorser has transferred the bill without indicating any place, the notice must be sent to the one preceding him. The holder or indorser who does not give notice is responsible for the damage or loss suffered, in consequence of the want of notice, to those who have preceded him, or those who have been passed by. He also loses his right to demand from them interest and charges, and can only demand the amount of the bill. To prove that the notice has been sent to the drawer or preceding indorser without delay it is sufficient to produce a certificate of the post office showing that a letter from the party concerned has been posted to him, unless it be shown that such letter was of a different tenor from the one alleged to have been sent (a). No right at law for provision. But in equity such right would exist. Right of holder where goods are appropri ated to the payment. SECTION XV. PROVISION. BRITISH LAW. The holder of a bill has no right of action against the drawee for any provision made by the drawer for the payment of the bill, and he can maintain no action at law unless there has been acceptance. Yet in equity the drawer of a bill of exchange drawn against certain specified goods deposited with the acceptor is entitled as against the acceptor to have the proceeds of such goods applied in the first instance in payment of the amount of the bill. And the drawer may transfer this right to the indorsee, who may then maintain a suit to have the proceeds of the goods in the hands of the acceptor applied accordingly (b). So where goods, consigned to another house, are appropriated to the payment of bills drawn upon them, and the consignees accept the consignment with positive directions to that effect, they cannot set up their general lien upon such goods for any balance due to them by the consignor (c). What is provision. FOREIGN LAWS. France. The provision is any sum or effects which are or ought to be in the hands of the drawee or of the acceptor for the payment of a bill of exchange when it falls due. Provision is held to have been made when on its becoming due the drawee (a) German Law on Bills of Exchange, §§ 41-47. (b) Inman v. Clarke, 1 Johns. 768; Ex parte Waring, 19 Ves. 345; Ex parte Parr, Buck's Banks Cases, 191; Ex parte Gledstane, M. D. & De G. 109; Cazenove v. Prevost, 5 B. & Ald. 70; Thayer v. Lister, 4 L. T. Ch. 50 (N. S.). (c) Frith v. Forbes, 31 L. J. Ch. 793, and 32 L. J. Ch. 10. holders. owes to the drawer or payee a sum at least equal to the amount of the bill. And it has been decided that provision has been made even when the effects destined to the payment of the bill of exchange are not realised when the bill becomes due, and that the holder may, if he does not wish to sue immediately the drawer, claim these effects as against the creditors of the drawer. Should the drawee become bankrupt before he has Rights of accepted the bill, the holder may claim the provision previously made in the hands of the drawee, whether in effects or in money, exclusively devoted to the payment of the bill, though if the drawee was simply a debtor of the drawer, the provision is destroyed by the bankruptcy. In case of bankruptcy of the drawer where the bill has been accepted, the provision belongs to the holder, because the acceptance is given under the tacit condition that the provision shall be realised. And it is the same where the provision has been especially devoted to the payment of the non-accepted bill. Where the bill has not been accepted, and there was no special dedication of the effects to the payment of the bill, there the creditors of the drawer could not claim the provision in the hands of the drawee so as to dispossess the holder of his right, but the drawee could set his own rights against both the rights of the drawer and holder (a). holder to Portugal. The same law prevails in Portugal. If the pro- Rights of vision has been made with the drawee, and the bill is protested provision. for non-acceptance, the holder has the right to demand from the drawer the cession of his rights against the drawee for the amount of the bill, and any documents in support of such rights. The drawer is bound to guarantee the payment of the bill even when the protest has not been duly made, if the provision had not been made before the bill became due. Where, on the contrary, the drawer has made provision, he is discharged from all responsibility (b). Russia.-If the bill is protested for non-acceptance or nonpayment, and the drawer proves that when the bill became due the drawee had funds in his hands sufficient, or that he owed him money, the holder would then have no right against the drawer and indorsers, but he may exercise against the drawee all the rights which belonged to the drawer. If, on the contrary, (a) French Code, § 115 to 117. (b) Portuguese Code, § 328-332. the provision has not been made, then the holder may sue the drawer and indorsers for payment (a). Spain.-The drawer must provide for the bill. The provision is deemed as made where the drawee owes to the drawer, or to the party in whose favour the bill is drawn, a sum equal to the amount of the bill. If the drawer does not prove that he had made due provision for the bill, or that he was expressly authorised by the drawee to draw the bill for a specific sum, he would have to pay all the expenses caused by the non-acceptance or non-payment. Who may sue. Right of trustees to sue on a bill. indorsees. SECTION XVI. REMEDIES ON BILLS AND NOTES. BRITISH LAW. The right to sue on a bill or note may be exercised by the holder or any of the indorsers, or any person having interest in, or possession of, the instrument, and entitled at law to receive its contents (b). And when a bill is made payable to a person as trustee for another, he has a right to sue upon it. So an indorsee may sue on a bill on behalf of the drawer, even after he has been paid by him (c). But once an indorser has paid his indorsee, he cannot sue on the bill in the indorsee's name without his consent (d). Indorsers and Not only the holder of the bill when dishonoured, but any one of the indorsers, has a right to sue; though if the action is instituted by the preceding indorsers, all the subsequent names after that of the plaintiff must be struck out before trial (e). Husband and The husband has a right of action on a bill or note made payable to his wife during coverture (ƒ), though he may join her with him (g). But if it was given to her whilst she was a feme sole, the husband must join (h), and if she dies, her adminis wife. (a) Russian Code, § 328. (b) Emmett v. Tottenham, 8 Exch. (c) Williams v. James, 15 Q. B. 498. 658. (f) Gaters v. Madeley, 6 M. & W. 423. (g) Philliskirk v. Pluckwell, 2 M. & S. 393. (h) Sherrington v. Yates, 12 M. & W. 855. |