XIV. In an action against the drawer of a foreign bill, protest CHAPTER must formerly have been averred (m) as well as proved; and it has been held that, if protest of an inland bill be Pleading set forth in pleading, it must be proved (n). But this decision proceeded on the ground that an allegation of protest of an inland bill involved a consequential claim for interest and costs; whereas it has been since decided, that such a claim may be made without protest (o). In an action on a foreign bill, presented abroad, the dis- Evidence. honour of the bill will be proved by producing the protest, purporting to be attested by a notary public; or, if there is not any notary near the place, purporting to have been made by an inhabitant, in the presence of two witnesses (p). But a protest made in England is not evidence of the presentment here (q). A promise to pay is good prima facie evidence of pro- Effect of a test (r), and of notice thereof (s). (m) But the absence of the allegation of protest is a defect of form only. Solomons v. Stavely, 3 Doug. 298; Gale v. Walsh, 5 T. R. 231; Armani v. Castrique, 13 M. & W. 443. (n) Boulager v. Talleyrand, 2 Esp. 550. (o) Windle v. Andrews, 2 B. & Ald. 696; 2 Stark. 425. (p) Anon., 12 Mod. 345; Rep. temp. Holt, 297. (q) Chesmer v. Noyes, 4 Camp. 129. (1) Patterson v. Beecher, 6 Moore, 319; Gibbon v. Coggon, Camp. 188; Campbell v. Webster, 15 İ.. J., C. P. 4; 2 C. B. 258; Greenway v. Hindley, 4 Camp. 52. (s) Ibid.; Ex parte Lowenthal, L. R., 9 Ch. Ap. 591. promise to pay. XV. SUBJECT to the other provisions of the Code when a bill CHAPTER of exchange is dishonoured by non-acceptance, or a bill of exchange or a promissory note is dishonoured by non-payment, notice of dishonour must be given to the drawer and indorsers of the bill, or the indorsers of the note, and any drawer or indorser, to whom such notice is not given, is discharged (a). Where a bill has been dishonoured by non-acceptance, and notice of dishonour is not given, a subsequent holder in due course is not prejudiced. Where a bill has been dishonoured by non-acceptance, and due notice has been given, notice of a subsequent dishonour by non-payment is not required unless the bill have been accepted in the meantime. The requisites of notice and the consequences of neglect being much the same in both cases, under the general head of notice of dishonour, will be considered notice of non-acceptance and notice of non-payment. In considering this subject, let us inquire,-first, what DIVISION form of notice is required; secondly, how notice is to be oF THE transmitted; thirdly, at what place it is to be given; SUBJECT. fourthly, at what time; fifthly, by whom it must be given; sixthly, to whom; seventhly, what are the consequences of neglect; eighthly, how notice may be excused or waived; and lastly, how it may be proved. First, as to the form of the notice. Notice does not mean WHAT FORM mere knowledge, but an actual notification. For a man oF NOTICE IS (a) Code, ss. 48 and 89. The other provisions seem to be those in sects. 49 (15) and 50, relating to delay in or excuse of notice. Bleasard v. Hirst, 5 Burr. 2672; Goodall v. Dolley, 1 T. R. 712. And the parties who are entitled to notice of non-acceptance are discharged for want of it, and are not liable for subsequent nonpayment; Roscow v. Hardy, 12 East, 434; unless the bill come into the hands of a subsequent indorsee for value, who was not aware of the dishonour, s. 48 (1); O'Keefe v. Dunn, 6 Taunt. 305; 1 Marsh. 613; Dunn v. O'Keefe, M. & S. 282; Whitehead v. Walker, 9 M. & W. 506. See Goodman v. Harvey, 4 Ad. & El. 870; 6 N. & M. 372. Where a bill was re-indorsed to a prior indorser, and in the in- REQUIRED. XV. CHAPTER who can be clearly shown to have known beforehand that the bill would be dishonoured is nevertheless entitled to notice (b). No particular form of notice is required. It may be either written or oral, or partly written and partly oral, and need not be signed; a simple return of the bill or note itself is sufficient (c). All that is now necessary seems to be to apprise the party liable of the dishonour of the bill or note by non-acceptance or non-payment in terms that sufficiently identify the instrument (d); the announcement of the dishonour (at least if it come from the holder) amounting to a sufficient intimation to the indorser, that he is held liable (e). But where a mere demand of payment was made, the Court observed, "There is no pre (b) See Burgh v. Legge, 5 M. & W. 418; Caunt v. Thompson, 18 L. J., C. P. 127; 7 C. B. 400. The con (c) Code, s. 49 (5) and (7). The (d) Sub-sect. (5). Formerly it But unless the word "dishonoured" (e) It was held in Furze v. B. 446, that a notice of the dishonour of a bill of exchange sent by the holder, need not contain an announcement that the holder looks to the party to whom it is addressed for payment, but that if the notice do not come immediately from the holder, such an intimation may perhaps be necessary. See also East v. Smith, 16 L. J., Q. B. 292; 4 Dowl. & L. 744. The formal protest itself, for which the notice is substituted, contains no such announcement. And see Micrs v. Brown, 11 M. & W. 372, where Mr. Baron Alderson says, "knowledge of dishonour, obtained by communication from the holder of the bill, amounts to notice ;" and the observations of Cresswell, J., in Caunt v. Thompson, 18 L. J., C. P. 128; 7 C. B. 400. In King v. Bickley, 2 Q. B. 419, it was held not necessary to state in a notice of dishonour, that the holder looks to the other party for payment, and that the mere sending of notice of dishonour is itself a sufficient intimation for that purpose. The following was the form of notice :-"Sir, I hereby give you notice that a bill for 501., at three months after date, drawn by J. L. upon and accepted by J. E., of Blenheim Street, Chelsea, and indorsed by you, lies at No. 6, Ely Place, dishonoured. Yours, &c. (Signed) WM. KING." See Chard v. Fox, 14 Q. B. 200. XV. cise form of words necessary to be used in giving notice CHAPTER of the dishonour of a bill of exchange, but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor. Here the letter in question did not convey to the defendant any such notice: it does not even say the bill was ever accepted. We, therefore, think the notice was insufficient" (ƒ). Where the attorney for the indorsee wrote a letter to the indorser to the following effect: "A bill for 6831., drawn by K. on J. & Co., and bearing your indorsement, has been put into our hands by A., with directions to take legal measures for the recovery thereof, unless immediately paid to us;" it was held, that this letter was not a sufficient notice of dishonour. "The notice of dishonour," says Tindal, C. J., delivering the judgment. of the Court of Exchequer Chamber, "which is commonly substituted in this country in the place of a formal protest (such formal protest being essential in other countries to enable the plaintiff to recover) most certainly does not require all the precision and formality which accompanied the regular protest, for which it has been substituted. But it should at least inform the party to whom it is addressed, either in express terms or by necessary implication (g), that the bill has been dishonoured, and that the holder looks to him for payment of the amount. Looking at this notice, we think no such intimation is conveyed in terms, or is necessarily to be inferred from its contents." The Court further observed, that it was consistent with the notice that the bill had never been presented, but that the plaintiff intended to rely on an excuse for non-presentment, that the notice did not state that the bill was due, and might not have been intended as a notice of dishonour, but might have pre-supposed it (h). 417; 1 Tyr. 371; affirmed in the |