of non-acceptance 1st. When notice reasonable diligence to discover where the indorser is necessary; and may be found. And Lord Ellenborough observed, what excuses omis-When the holder of a bill of exchange does not sion. know where the indorser is to be found, it would be very hard if he lost his remedy by not communicating immediate notice of the dishonour of the bill; and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance; but if he uses reasonable diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered is due notice of the dishonour of the bill, within the usage and custom of merchants." And it has been considered to be sufficient, when a promissory note has been dishonoured, to make inquiries at the drawer's for the residence of the payee. But in a subsequent case it was held, that, to excuse the not giving of regular notice of the dishonour of a bill it is not enough to shew that the holder, being ignorant of his residence, made enquiries upon the subject at the place where the bill was payable. However, sending verbal notice to a merchant's counting-house is sufficient, and if no person be there in the ordinary 'Bateman v. Joseph, 2 Campb. 461.-12 East. 433. S. C. What is due diligence, see Harrison v. Fitzhenry, 3 Esp. 210. Quære, whether reasonable diligence is in this case a question of fact or law, 1 Wightw. 76.-12 East. 433.—2 Campb. 461.-3 Campb. 262.-6 East. 3. ante, 214, n. 1. as to what is reasonable diligence, 4 M. & S. 49. 2 Sturges v. Derrick, Wightw. 76. 3 Beveridge v. Burgis, 3 Campb. 262. This was an action by the indorsce against the indorser of a bill of exchange. The plaintiff had given the defendant no notice of its dishonour till several months after it became due; the excuse alledged for this omission was, that the plaintiff was ignorant of the defendant's address, which did not appear upon the bill, but the only evidence adduced to shew that he had used any diligence to discover this, was, that he had made inquiries upon the subject at a house in the Old Bailey, where the bill was made payable by the acceptor. Lord Ellenborough. Ignorance of the indorser's residence may excuse the want of due notice, but the party must shew that he has used reasonable diligence to find it out. Has he done so here? how should it be expected that the requisite information should be obtained where the bill was payable? Inquiries might have been made of the other persons whose names appeared upon the bill, and application might have been made to persons of the same name with the defendant, whose addresses are set down in the directory. Plaintiff nonsuited. of non-acceptance hours of business, it is not necessary to leave or send 1st. When notice a written one, nor is it necessary to make enquiries is necessary; and after the party, so as to give him notice elsewhere'. The holder of a bill of exchange is also excused for not giving notice in the usual time, by the day on which he should regularly have given notice, being a public festival, on which he is strictly forbidden by his religion to attend to any secular affairs. But the loss or destruction of an accepted bill affords no excuse for the delay in giving notice of non-payment. Nor would the bankruptcy of a drawer or indorser of a bill, or indorser of a note, excuse the neglect to give notice of the default of the drawee, to the bankrupt or his assignee *. 'Goldsmith and others v. Bland and others, cor. Lord Eldon, 1 Mar. 1800. Bayl. 127. note 1. The plaintiffs sued the defendants as indorsers of two foreign bills, and to prove notice, the plaintiffs shewed that they sent a clerk to the defendant's counting-house near the Exchange, between four and five o'clock in the afternoon, nobody was in the counting-house; the clerk saw a servant girl at the house, who said that nobody was in the way, and he returned, having left no message with her. Lord Eldon told the jury, that if they thought the defendants ought to have had somebody in the counting-house at the time, he was of opinion that the plaintiffs had done all that was necessary by sending their clerk; that the notice was in law sufficient, if the time was regular, whether the defendants were solvent at the time or not. The jury thought the defendants ought to have had somebody in the counting-house at the time, and that the plaintiffs had done all that was necessary. Verdict for the plaintiffs for £1633. Post 285. Crosse and others v. Smith and others, 1 M. & S. 545. Notice to the drawers of non-payment of a bill of exchange by sending to their counting-house during hours of business on two successive days, knocking there and making noise sufficient to be heard by persons within, and waiting there several minutes; the inner door of the counting-house being locked is sufficient without leaving a notice in writing, or sending by the post, though some of the drawers lived at a small distance from the place. See also Bowes v. Howe, 5 Taunt. 30. Post, 285. 2 Lindo . Unsworth, 2 Campb. 602. Notice of the dishonour of a bill was sent to the plaintiff in London, the 8th of October, but he being a Jew, and the 8th of October being the day of the greatest Jewish festival throughout the year, on which all Jews are prohibited from attending to any secular affairs, gave no notice by the post of that day to the defendant who lived at Lancaster, but sent it to him by the post of the 9th. Lord Ellenborough held, that the plaintiff was excused from giving notice on the 8th on the ground of his religion, and the notice sent off on the 9th was sufficient. The plaintiff had a verdict. 3 Poth. pl. 125.-Thackray v. Blackett, 3 Campb. 164.-Manning Ind. 69. ante, 203. Cooke's Bank. L. 168.-Cullen's Bank. L. 100.--Montague's Bank. L. 143. n. x. acc. ex parte Smith, Bro. C. C. 1, contra. what excuses omis sion. 1st. When notice of non-acceptance what excuses omission. It has been already observed', that if the drawee is necessary; and offer a conditional or partial acceptance, the holder must, provided he means to resort to the drawer and indorsers, give notice of such acceptance; it is said, however, that where the drawee refuses to accept absolutely, and makes a conditional acceptance, the terms of which are complied with, no notice of the manner in which the bill has been accepted is necessary; and that where the drawee undertakes by his acceptance to pay only part of the bill, the parties to the bill are bound to the extent of his acceptance, and an omission to give notice of such partial acceptance, does not discharge them from the obligation to that amount. 2dly. The protest of non-accept ance. The conduct which the holder must adopt on the and form of notice dishonour of a foreign bill, differs materially from that which he must pursue in the case of an inland bill. Whenever notice of non-acceptance of a foreign bill is necessary, a protest3 must also be made, which though mere matter of form, is by the custom of merchants indispensibly necessary, and cannot be supplied by witnesses or oath of the party or in any other way, and as it is said, is part of the constitution of I Ante, 238. 2 Bayl. 115, 6. 3 See the form post, of a protest for non-payment, which, with the alteration of the words in italics, will suffice in the case of a foreign bill. 4 * Rogers v. Stevens, 2 T. R. 713.-Gale v. Walsh, 5 T. R. 239.— Orr v. Maginnis, 7 East. 459. 360-Brough v. Parkins, Lord Raym. 993.-6 Mod. 80.-1 Salk. 131. S. C.-Bul. Ni. Pri. 271.-Bay!. 117,8. Rogers v. Stephens, 2 T. R. 713. In an action against the drawer of a foreign bill of exchange, it appeared that the bill had been noted for non-acceptance, but there was no protest, and this was pressed as a ground for nonsuit. Lord Kenyon admitted the objection, but upon the other circumstances thought this a case in which a protest was not necessary. Gale v. Walsh, 5 T. R. 239. In an action against the drawer of a foreign bill it was reserved as a point, whether it was necessary to prove a protest, and the court thought it so clear, upon motion to enter a nonsuit, that they suggested to the plaintiff's counsel the expediency of making the rule absolute in the first instance, and upon their acquiescence, it was accordingly done; they afterwards, however, wished to have it opened, upon an idea that the drawer had no effects in the hands of the drawee; but it appearing upon the report test and mode of non-acceptance. a foreign bill of exchange; and the mere production 2dly. Of the proof this protest attested by a notary public, without giving notice of proof of the signature or affixing of the seal (though not so if payable here 1) will in the case of a bill payable and protested out of this country, be evidence of the dishonour of the bill, and to it all foreign courts give credit; and it cannot be supplied by mere proof of noting for non-acceptance, and a subsequent protest for non-payment. But proof that the drawer had no effects in the hands of the drawee at the time of drawing the bill, or at any time afterwards, will in this country excuse the want of a protest, and prevent the drawer being discharged. So a subsequent promise by the drawer to pay the bill may preclude him from availing himself of the want of a protest". But it is not advisable to omit protesting a foreign bill, because in foreign courts they would probably not be governed by the exception introduced by our courts'. If therefore the drawce refuse to accept, the holder or some other person, if he be ill or absent, should cause it to be protested; for which purpose he should carry the bill to a notary, who is to present it again to the drawee, and demand acceptance; which should, in case the bill was drawn on or accepted payable at a banker's, be, during the usual hours of business, and in London not later than five o'clock'; and if the drawee again refuse to accept, the notary is thereupon to make a minute on the bill itself, consisting of his ini that the idea was not well founded, the rule stood. Parkins, Lord Raym. 993. 6 Mod. 80. Salk. 131. a protest on a foreign bill is a part of the custom. Chesmer v. Noyes, 4 Campb. 129. 2 And in Brough v. Anonymous, 12 Mod. 345.-Dupays v. Shepherd, Holt, 297.— Chemers v. Noyes, 4 Campb. 129.-2 Roll. Rep. 346.-10 Mod. 66. Peake Law of Evid. 4th edit. 80. 74, in notes. 3 Molloy, 281.-Dacosta and Cole, Skin. 272. pl. 1. *Orr v. Maginnis, 7 East. 359.-Legge v. hr p, 2 Campb. 310. 12 East, 171. As to this point, see ante, 258 to 260. Gibbon v. Coggon, 2 Campb. 188. Per Lord Ellenborough, Legge v. Thorp, 12 East. 177, 8. Molloy, b. 2. c. 10. s. 17. * See the nature of his office explained in Burn's Ecc. L. tit. Notary Public; and see Regulations in 41 Geo. 3. c. 79. 9 Parker v, Gordon, 7 East. 385. ante, 211, 2. test and mode of giving notice of non-acceptance. 2dly. Of the pro- tials, the month, the day and year, and the reason, if assigned, for non-acceptance, together with his charge. The next step which the notary is to adopt is to draw up the protest', which is a formal declaration on the bill itself, if it can be obtained, or otherwise on a copy', that it has been presented for acceptance, which was refused, and why, and that the holder intends to recover all damages, expences, &c. which he, or his principal, or any other party to the bill, may sustain on account of non-acceptance'. The minute above mentioned is usually termed noting the bill, but this, it has been said, is unknown in the law, as distinguished from the protest, and is merely a preliminary step to the protest, and though it has grown into practice within these few years, it will not in any case supply the want of a protest *; the demand is the material thing, and must, it is said, in the case of a foreign bill, be made by a notary public himself, to whom credit is given because he is a public officer, and it cannot be made by his clerk 5. This doctrine was sanctioned in a late case, in which the court observed, that the rule requiring the attestation of a notary public ought to be strictly observed. In case, however, there be not any public notary at the place where the bill is dishonoured, it may be protested by any substantial person of that place in the presence of two or more witnesses, and it is said it should be made between sun-rise and sun-set. It should in general be made in the place where acceptance is refused; but when a bill is drawn abroad, directed to the drawee at Southampton, or any other place, requesting him to Per Holt, C. J. in Buller v. Crips, 6 Mod. 29.-Selw. N. P. 307. and note 33. 2 Dehers v. Harriot, 1 Show. 164. 3 Poth. pl. 84.-Mall. 264.-Mar. 16. * Per Buller, J. in Leftley v. Mills, 4 T. R. 175.-Rogers v. Stephens, 2 T. R. 713.-Gale v. Walsh, 5 T. R. 239.—Bull. N. P. 271. Bayl. 72. n. a. and see Orrv. Maginnis, 7 East. 359. 7 Per Buller, J. in Leftley v. Mills, 4 T. R. 175. sed quære. Ex parte Worsley, 2 Hen. Bla. 275. ? Bayl. 118. |