3dly. The time when protest must be made and notice given. all the parties to which resided in London, it appeared, that the plaintiff received notice of the dishonour of the bill from his indorsee on the 20th of the month, and gave notice to his immediate indorser, by a letter put into the two-penny post-office on the evening of the 21st, but so late that it was not delivered out till the morning of the 22d, it was held, that by this neglect the plaintiff had discharged all the prior indorsers, although, in the course of the 22d, notice of the dishonour was given both to the second indorsee and to the defendant. And Lord Ellenborough in this case said, "It is of great importance that there should be an " established rule upon this subject; and I think there can be none more convenient, than that, where the "parties reside in London, each party should have a day to give notice. I have before said, the holder of a bill "of exchange is not, omissis omnibus aliis negotiis, "to devote himself to giving notice of its dishonour. It " is enough if this be done with reasonable expedition, "If you limit a man to the fractional part of a day, it "will come to a question, how swiftly the notice can "be conveyed? A man and a horse must be employ"ed, and you will have a race against time. But here "a day has been lost. The plaintiff had notice him"self on Monday, and does not give notice to his in"dorser till Wednesday. If a party has an entire day "he must send off his letter conveying the notice within post time of that day. The plaintiff only "wrote the letter to Aylett on the Tuesday; it might. "as well have continued in his writing-desk on the. .66 66 Tuesday night as lie at the post-office. He has "clearly been guilty of laclies, by which the defend"ant is discharged." And in Marsh v. Maxwell', Lord Ellenborough ruled, that upon the dishonour. of a bill, it is not enough that the drawer or indorser receives notice in as many days as there are subsequent indorsers, unless it is shown that each indor Marsh v. Maxwell, 2 Campb. 210. when protest must be made and no tice given. see gave notice within a day after receiving it; and Sdly. The time if any one has been beyond the day, the drawer and prior indorsers are discharged. But in a subsequent case of Cutler v. Boddy', this doctrine was denied, and the question has been recently reserved for the opinion of the court2. appears, From the above-mentioned case of Smith v. Mullett', it that though the holder is not bound to send a special messenger, and may give notice by the post, he must take care to put the letter in the post sufficiently early on the day after he has himself received notice, that the party to whom it is addressed, may receive the letter on that day. We have seen that the holder will be excused in the delay of giving notice in the usual time, by the day on which he should regularly have given notice being a day on which he is strictly forbidden by his religion to attend to any secular affairs, or by the absconding of the drawer or indorser ". Where it may be necessary to give notice of nonpayment to a banker, it may be proper to give it in the usual hours of business, but to other persons the particular hour of the day is not in general ®. The remaining points relative to the time of giving notice will be found, ante, 288 to 292. points. In respect to the person by and to whom notice of The remaining non-payment should be given, and the liability of the different parties to the bill on notice of the non-payment, and how the consequences of the laches of the Cutler and another v. Boddy, K. B. Guildhall, 4th June, 1814, cor. Lord Ellenborough. Patten, attorney for the defendant. Turner v. Leach, K. B. A. D. 1818. A special case reserved, Lowe and Bower, for the plaintiff. 3 See also Hilton v. Fairclough, 2 Campb. 633. * Ante, 277. 5 Starges v. Derrish, Wightw. 76. Jameson v. Swinton, 2 Taunt. 224.-Barclay v. Bayley, 2 Campb. 527.-Cross v. Smith, 1 M. & S. 545.—Bancroft v. Hall, 1 Holt, C. N. P. 476. ante, 353 to 355.-Bayl. 127. 7 Ante, 292 to 295. Ante, 295 to 397. 9 Ante, 298 to 301. The remaining points. holder may be waived, or otherwise done away', the rules already stated, as to the conduct of the holder in the case of non-acceptance, are so applicable, that it would be repetition here to make any observation on those points; the reader is therefore referred to the preceding part of the work". Sect. 4. Of payment supra protest. We have already considered the nature of the protest for better security, and of an acceptance supra protest'. The nature of a payment supra protest remains to be considered. Payment of a bill, whether foreign or inland', being refused, any third person, not party to the bill, aş he might have accepted, so he may after protest pay it, for the honour of the drawer, or any of the indorsers which payment, as it is always made after protest, is called payment supra protest; but, the acceptor, if he have previously made a simple acceptance, cannot pay in honour of an indorser, because, as acceptor, he is already bound in that capacity; he may, however, when he has accepted a bill without having effects of the drawer in his hands, and no provision has been made by the drawer for payment, suffer the bill to be protested, and then pay supra protest 7; in which case he will have a remedy on the bill against the drawer. A party paying a bill supra protest, which has already been accepted by another, may sue such first acceptor; but if a person take up a bill for the honour of the drawer, he has no right of action 'Ante, 301 to 309. * Ante, 292 to 309. 3 Ante, 309-Smith v. Nissen, 1 T. R. 269. Fairley v. Roch, Lutw. 891, 892.-Marius, 128.-Bayl. 146. 3 Beawes, pl. 50.-Mar. 128. 6 Beawes, pl. 51. 7 Id. pl. 52. Id. ibid.; and Raper v. Birkbeck, 15 East. 17.-Bayl. 146. against the acceptor, if he accepted it for the accom- Sect. 4. Of paymodation of the drawer'. In general, no person should pay in honour of another, before the bill has been protested for non-payment; and it is said that he should not even then make such payment, before he has declared to a notary public for whose honour he intends making it, of which declaration the notary must give an account to the parties concerned, either in the protest itself, or in a separate instrument. If, however, the acceptor supra protest for the honour of the drawer or indorser, receive his approbation of the acceptance, he may pay the bill without any protest for non payment'. Although, with respect to other debts, a stranger, who has no interest in them, does not, by paying them, entitle himself to the rights of a creditor, unless he have the consent of the debtor to such payment, yet, with regard to bills of exchange, a stranger, who pays them in case of protest, acquires all the same rights that the holder of the bill had, although no regular transfer of the bill were made to him; and he may maintain an action against the person for whose honour he discharged the bill, either on the bill itself, or on the count for money paid to the defendant's use. A person taking up a bill for the honour of the drawer has, however, no right against the acceptor without effects. The reason of the above exception to the general rule, 2 3 Ex parte Lambert, 13 Ves. jun. 179.-Bayl. 146, 148. Beawes, pl. 53.-Mar. 128. Beawes, pl. 48. Exall v. Partridge, 8 T. R. 310.-1 Rol. Ab. 11.-Lampleigh v. Buthwait, Hob. 105.-Stokes v. Lewis, 1 T. R. 20.-In Williams v. Millington, 1 len. Bla. 83-Jenkins v. Tucker, Id. 91. 3 Mertens . Winnington, 1 Esp. Rep 112.-Poth. pl. 171.—Ex parte Wackerbarth, 5 Ves. jun. 574.-Manning's Index, 70. Fairley v. Roch, Lutw. 891. See Manning's Index, 70. 7 Smith v. Nissen, 1 T. R. 269. Ex parte Lambert, 13 Ves. jun, 179.-Bayl. 148. ; but see 5 Ves. jun. 574. ment supra protest. ment supra protest. Sect. 4. Of pay precluding a party from constituting himself the cre ditor of another, without his concurrence, it has been observed, is, that it induces the friends of the drawer or indorsers to render them this service, it tends to prevent the great expense attending the return of a bill, and preserves the credit of the trader', &c. Beawes, pl. 54.-Poth. pl. 171. |