fect of payment, and of payment by mistake. sidered, that if the holder of a check, immediately 5thly. Of the efafter the death of the drawer, and before the banker is apprized of it, receive the amount, he will not be liable to refund, though in general the death of the drawer of the check is a countermand of the banker's authority to pay'. If bankers pay a cancelled check, drawn by a customer, under circumstances which ought to have excited their suspicion, and induced them to make inquiries before paying it, or if they pay a check after notice from their customer not to do so, they cannot take credit for the amount in their accounts. Where an action having been brought against the acceptor of a bill of exchange, it was agreed between the parties that the defendant should pay the costs, renew the bill, and give a warrant of attorney to secure the debt, and the defendant gave the warrant of attorney and renewed the bill, but did not pay the costs, it was held that the plaintiff might bring a fresh 'Tater. Hilbert, 2 Ves. jun. 118. 2 Scholey v. Ramsbottom, 2 Campb. 485.-Et Pothier Traite du Contrat de Change, part 1. ch. 4; sec. 99. et seq. Scholey v. Ramsbottom and others, 2 Campb. 485. The defendants were bankers, with whom the plaintiff kept cash. This was an acsion to recover the balance of his account, and the only question was, whether they were entitled to take credit for a sum of £366. On Wednesday, the 20th September, 1809, the plaintiff being indebted to Messrs. Miller and Co. drew a check in their favor, in the following form: "London, Sept. 20, 1809. "Messrs. Ramsbottom, Newman, Ramsbottom, and Co. pay Messrs. Miller and Co. or bearer, three hundred and sixty-six pounds. "ROBERT SCHOLEY." £366. But finding that the sum was incorrect, he tore the check into four pieces, which he threw from him, and drew another in the same form for £360. The latter was presented for payment, and paid by the defendants the same day. On Monday, the 25th of September, the first check was likewise presented for payment by a person unknown. The four pieces into which it had been torn, were then neatly pasted together upon another slip of paper, but the rents were quite visible, and the face of the check was soiled and dirty. The defendants clerk paid it however without making any inquiries. Lord Ellenborough was of opinion, that, under these circumstances, bankers were not justified in paying a check, and the jury found a verdict for the plaintiff for £366. 3 Ante, 192, 359, 360. 5thly. Of the ef fect of payment. action on the first bill while the second was outstanding in the hands of an indorsee'. Though a bequest by a debtor to his creditor of a legacy greater than the amount of the debt, will in general be deemed a satisfaction for such debt, it has been held that a negotiable bill of exchange or note is not satisfied by a legacy 2; but in another case it was held, that a debt on a note was discharged by an entry in the testator's hand, that the debtor should pay no interest, nor should he, the testator, take the principal, unless greatly distressed, it being proved that the testator died in affluent circumstances. It has been recently decided*, that in an action for money had and received by the holder of a bill of exchange against a person who has received a sum of money from the acceptor to satisfy it, any defence may be set up which would have been available if the action had been brought against the acceptor himself. In trover for bank notes, to prove that they belonged to plaintiff, the evidence was, that they had been delivered out by a banker's clerk (to what person he could not tell) in payment of a check which was payable to the plaintiff or bearer, and this was held to be primâ facie evidence of property. If upon a bill becoming due, the party to it requests another to pay the amount out of a particular fund, and the latter agrees to comply with that request, in conse Norris v. Aylett, 2 Campb. 329. * Carr v. Eastabrook, 3 Ves. jun. 561. 3 Aston and others executors v. Pye, Common Pleas, Easter, 28 Geo. 3d. cited in Eldon v. Smyth, 5 Ves. jun. 350. Judgment for defendant, action for £300, upon a note of hand given by defendant to his uncle, payable twelve months after date. The cause was tried at the sittings after Trinity Term. Verdict for the plaintiff, subject to the opinion of the court. The case was, Thomas Pye the uncle made his will the 17th of August, 1785, and after his death the executors found the following entry: Henry James Pye pays no interest nor shall I ever take the principal unless greatly distressed;" which entry bears date subsequent to the will. Upon the case coming to be argued, the court advised a reference to the Ecclesiastical Court, who refused to prove the same as a testamentary paper, whereupon the court considered the same as a discharge, and that a paper would operate as a bar against the executors. 4 Redshaw v. Jackson, 1 Campb. 372. fect of payment. quence of which the holder gives up the bill, he will 5thly. Of the ef be entitled to seek for payment out of the fund in pursuance of the agreement '. conduct which the sue on non-pay In general, if on presentment for payment, the drawee Sect. S. Of the of the bill refuse to pay the amount, it is incumbent on holder should purthe holder to protest it, if the bill be foreign, and whe- ment. ther foreign or inland, to give notice of the dishonour to those parties to whom he means to resort for payment, or they will be discharged from their respective obligations'. The conduct which the holder of the bill should pursue on non-payment, is so very similar to that which is to be adopted on refusal to accept, that it is sufficient to refer to the preceding part of the work3, and to point out in what respect the conduct, to be adopted on non-payment, differs from that in case of non-acceptance. We may remember that the points to be attended to by the holder, in case of non-acceptance, were arranged under the following heads *: First, When notice of non-acceptance is necessary, and what circumstance will excuse the neglect to give it, or waive the consequences of such neglect. Ante, 256 to 278. Secondly, The mode in which the notice should be given. Ante, 278 or 288. Thirdly, The time when a protest (when necessary) should be made, and when notice should be given. Ante, 288 to 292. Fourthly, By whom notice should be given. Ante, 292 to 295. Fifthly, To whom the notice should be given. Ante, 295 to 297. Yates v. Groves, 1 Ves. jun. 280. 2 Smith v. Wilson, And. 187.-Rogers v. Stephens, 2 T. R. 713.: Gale v. Walsh, 5 T. R. 239. 3 Ante, 256 to 309. Ante, 256. Sect. s. Of the conduct which the Sixthly, Of the liability of the parties to the bill on holder should pur- receiving notice. Ante, 298 to 301. sne on non-pay ment. 1st. When notice of non-payment is necessary. Seventhly, How the consequences of a neglect to give notice may be waived. Ante, 301 to 309. We will concisely consider in the same order the applicability of the rules already mentioned to the case of non-payment. The necessity for giving notice of non-payment is governed by nearly the same rules as prevail in the case of non-acceptance'. Notice, we have seen, ought in general to be given; or the drawer and indorsers will be discharged from all liability. The want of effects of the drawer in the hands of the drawee, will, we have seen, in general excuse the neglect to give due notice to him; but few other circumstances will have that effect. When the bill has been already protested for non-acceptance, and due notice thereof has been given, though usual it is not necessary to protest for non-payment, or to give notice thereof '; and after a regular notice of non-payment to the drawer, the engagement of the holder to present the bill again, and his doing so, but omitting to give notice of the second dishonour, will not prejudice his remedy against the drawer on the bill. And persons who are bankers, both for the drawer and acceptor of a bill, and have received it from the drawer, and given credit for it in an account between them, if, before it becomes due, they receive directions from the acceptor to stop the payment of it at the place of payment, and do so accordingly, are not bound to give notice of this circumstance to the drawers, the communication of the acceptor being confidential, and it sufficing to give a general notice, of non-payment to 2 Ante, 256, 7. 3 Ante, 258 to 271. * Ante, 271 to 278. Price . Dardel, cor. Lord Kenyon, Sittings at Guildhall, London, 11 Dec. 1794. De La Toore v. Barclay, 1 Stark. 7 and 8. ante, 300, n. 1. Forster v. Jurdison, 16 East. 105, ante, 379. the drawer. We have seen that if a note be made 1st. When notice of non-payment is payable at a bankers, it is not necessary to give the necessary. maker notice of non-payment. But an agreement between all the parties to a bill or note, that it should not be put in suit till certain estates were sold, will constitute no excuse for the want of notice of the non-payment, for as such an understanding could not have been given in evidence to prevent the holder from suing on the note, so it ought not to be received to excuse the want of due notice. The other points respecting the necessity for notice of non-payment, and the excuses for the omission will be found, ante, 256 to 278 and 301 to 309. mode of protesting and giving notice. With respect to the form of the notice of non-pay- 2dly. Form and ment, and the mode of giving it, the rules relating to non-acceptance here also in general prevail. In the case of a foreign bill, a protest for non-payment is as essential as a protest for non-acceptance, and can, in general, only be dispensed with by the want of effects of the drawer, in the hands of the drawee. And on non-payment, as well of a foreign as an inland bill, notice of non-payment must be given'. In case of an inland bill, the sending a verbal notice to a merchant's counting-house is sufficient, and if no person be there in the ordinary hours of business, it is not necessary to leave or send a written notice 3. The protest for non-payment of a foreign bill, which is made by a notary public, varies in point of form, according to the country in which it is made: in England the form of it is as follows: 1 Crosse v. Smith, 1 M. & S. 454. * Pearse v. Pembertley and others, 3 Campb. 261, ante, 323, 4. 3 Free v. Hawkins, 1 Holt, C. N. P. 550. ante, 61. + Ante, 278 to 288. * Ante, 278, 9.—Selw. N. P. 4th ed. 345. Gale v. Walsh, 5 T. R. 239.-Chaters v. Bell, 4 Esp. Rep. 49. ante, 258, 9. 7 Ante, 284, 5. 279. 8 Ante, 284, 5.-Bayl. 127. |