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due notice of dishonour, notwithstanding any miscarriage by the post office."
And, when the notice must be given on a certain day, it is enough if the letter be put into the post at such an hour that it would, in the usual course, be delivered on that day ; Stocken v. Collin, 7 M. & W. 515. The post-mark is not conclusive of the time of posting. Ibid. If a notice be sent by post, the direction of the letter will be too general to an indorser, “Mr. H., Bristol.” Walter v. Haynes, Ry. & M. 149. But, where the bill was dated “Manchester” only, it was held sufficient to direct to the drawer at “Manchester,” generally. Mann v. Moors, Id. 249. So, where a person drew a bill, dating it generally “ London," on an acceptor resident in London whose address was stated on the bill, it was held that proof of a letter containing notice of dishonour of the bill having been put into the post-office, addressed generally to the drawer, “London,” was evidence of due notice of dishonour. Clarke v. Sharpe, 3 M. & W. 166. And, in such a case, this is enough, as against the drawer, though the letter never reach him, and though his residence might have been found by inquiry at the drawee's address given on the bill. Burmester v. Barron, 17 Q. B. 828 ; 21 L. J., Q. B. 135. For the plaintiff had done all that the drawer himself required, who had supplied no better address; and there was sufficient evidence of due diligence. S. C.; and see post, p. 378. Where the plaintiff supplied goods to a company, and took in payment a bill of exchange accepted by the company, and indorsed by the defendant, a director, at the company's office, at which the defendant was in the habit of attending; it was held that notice of dishonour sent to the company's office was sufficient, although the company was then wound up, and the defendant ceased to attend at the office, and did not receive the notice till long after. Berridge v. Fitzgerald, L. R., 4 Q. B. 639. If there be no post, the notice may be sent by any ordinary mode of conveyance; as in the case of a foreign bill, by the first regular ship bound for the place where notice is to be given. Muilman v. D'Eguino, 2 H. Bl. 565. In proving a notice sent by post, it was ruled by Lord Ellenborough not to be sufficient to show that it was contained in a letter, which letter was put upon the table for the purpose of being carried to the post, and that, in the course of the business, all letters deposited upon that table were carried to the post; but, he said it might have been sufficient had the person, who was in the habit of carrying the letters to the post, been called, and stated that he invariably carried all such letters to the post. Hetherington v. Kemp, 4 Camp. 193. And, it was held in Skilbeck v. Garbett, 7 Q. B. 846, that if it be shown that the letter was put on the proper day with others in a box in the plaintiff's office, out of which the postman invariably called every day to take the letters, this is evidence of a sending by the post without calling the postman. To prove the sending of a notice by post, the plaintiff's clerk was called, who stated that a letter containing the notice was sent by post on a Tuesday morning, but he had no recollection whether it was put in by himself or another clerk; it was held that this was not sufficient evidence of putting into the post. Hawkes v. Salter, 4 Bing. 715. Proof that duplicate notices of dishonour were written; that a letter, of which the witness could not state the contents, was sent on the same day by the plaintiff to the defendant; and that the defendant having received notice to produce the letter written to him on that day, refused to do so; —was held slight primâ facie evidence of the receipt of a notice. Roberts v. Bradshaw, i Stark. 28; see also Curlewis v. Corfield, 1 Q. B. 814.
Contents of notice, how proved.] Where a written notice has been given by a letter, a duplicate or copy is good evidence without notice to produce the letter. Kine v. Beaumont, 3 B. & B. 288. And, in the case of Swain v. Lewis, 2 C. M. & R. 261, it was held, after conference with all the judges, that it is not necessary to give a notice to produce a notice of dishonour of a bill of exchange, whether by letter or otherwise. Secondary evidence of such notice is, therefore, admissible without notice to produce. But, where, in an action against the indorser of a bill, it became necessary to prove that notice of the dishonour of other bills had been given to the defendant, for which purpose examined copies of letters containing such notices were offered, Abbott, C. J., ruled that a notice to produce such letters was necessary, and that the case did not fall within the exception as to notices respecting bills which are the subject-matter of the action. Lanauze v. Palmer, M. & M. 31, vide ante, p. 8.
Protest of bill.-Statute.] By sect. 51, “(1.) Where an inland bill” (vide sect. 4, ante, p. 341) “ has been dishonoured it may, if the holder think fit, be noted for non-acceptance or non-payment, as the case may be; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser.
(2.) Where a foreign bill, appearing on the face of it to be such, has been dishonoured by non-acceptance it must be duly protested for nonacceptance, and where such a bill, which has not been previously dis honoured by non-acceptance, is dishonoured by non-payment it must be duly protested for non-payment. If it be not so protested the drawer and indorsers are discharged. Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dishonour is unnecessary.
“ (3.) A bill which has been protested for non-acceptance may be subsequently protested for non-payment.
** (4.) Subject to the provisions of this Act” (vide sub-sect. (9) and sect. 93, post, p. 376), “when a bill is noted or protested, it must be noted on the day of its dishonour. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting.
"(6.) Where the acceptor of a bill becomes bankrupt or insolvent or suspends payment before it matures, the holder may cause the bill to be protested for better security against the drawer and indorsers.
“(6.) A bill must be protested at the place where it is dishonoured : Provided that, “(a.) When a bill is presented through the post office, and returned by
post dishonoured, it may be protested at the place to which it is returned and on the day of its return if received during business hours, and if not received during business hours, then not later than
the next business day: “(6.) When a bill drawn payable at the place of business or residence
of some person other than the drawee, has been dishonoured by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for
payment to, or demand on, the drawee is necessary. *(7.) Å protest must contain a copy of the bill, and must be signed by the notary” (vide sect. 94, infra) “making it, and must specify
person at whose request the bill is protested: "(6.) The place and date of protest, the cause or reason for protesting
the bili, the demand made, and the answer given, if any, or the fact
that the drawee or acceptor could not be found. “ (8.) Where a bill is lost or destroyed, or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof.
“(9.) Protest is dispensed with by any circumstance which would dispense with notice of dishonour. Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate the bill must be noted or protested with reasonable diligence.”
Sect. 93. “For the purposes of this Act, where a bill or note is required to be protested within a specified time or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting.'
Sect. 94. “Where a dishonoured bill or note is authorised or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate, signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill.”.
A form is given in Schedule 1 to the Act, which if used is sufficient.
Protest.] In case of an inland bill, a protest is unnecessary and of no effect. Windle v. Andrews, 2 B. & A. 696; Bonar v. Mitchell, 5 Exch. 415.
In case of a foreign bill, notice of dishonour without notice of protest is sufficient, if the party to whom notice is given reside in this country; Robins v.
Gibson, 1 M. & S. 288; and it is sufficient, though he should happen at the time of the dishonour to be absent abroad; Cromwell v. Hynson, 2 Esp. 511. In giving notice of non-payment to the drawer of a foreign bill resident abroad, it is necessary to give him notice that the bill has been protested; Robins v. Gibson, 1 M. & S. 289, per Ld. Ellenborough, 7. J.; but it is not necessary to send him a copy of the protest. Goodman v. Harvey, 4 Ad. & E. 870. So, it was sufficient where the notice stated that the bill “had been duly presented and returned dishonoured.” Ex parte Lowenthal, L. R., 9 Ch. 591. The production of the protest purporting to be attested by a notary public, when made abroad, is sufficient proof of the protest. Anon., 12 Mod. 345; Bayley on Bills, 490. But, a notarial protest is no evidence that a foreign bill of exchange has been presented for payment in England; Chesmer v. Noyes, 4 Camp. 129; and, a protest made in England, must, it is said, be
proved in the ordinary way. Chitty on Bills, 9th ed., 655. But, there is a dictum of Ld. Abinger to the contrary in Brain v. Preece, 11 M. & W. 775. In Geralopulo v. Wieler, 10 C. B. 690 ; 20 L. J., C. P. 105, it was held (explaining Vandewall v. Tyrrell, M. & M. 87), that upon payment supra protest for the honour of a party, it is enough if, before payment, the bill be in fact protested, and a declaration of payment for honour be made and noted in the notarial register, and that the formal protest may be drawn up afterwards, even after action brought; and, that a duplicate protest made from the notary's book was primary evidence, as much as the protest sent abroad. A promise to pay (though qualified) is an admission by the defendant of due protest for non-acceptance, and' notice of it. Campbell v. Webster, 2 C. B. 258.
Waiver or dispensation of notice-Statute.] By sect. 50, “(2.) Notice of dishonour is dispensed with
“(a.) When, after the exercise of reasonable diligence, notice as required
by this Act cannot be given to or does not reach the drawer or in
dorser sought to be charged: “(6.) By waiver express or implied. Notice of dishonour may be waived
before the time of giving notice has arrived, or after the omission to
give due notice : "(c.) As regards the drawer in the following cases, namely, (1) where
'drawer and drawee are the same person ” (vide sect. 2, ante, p. 340), “(2) where the drawee is a fictitious person or person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (5) where the drawer has countermanded pay
Waiver or dispensation of notice.) See sect. 50 (2), supra. Whenever the want of notice is excused, the circumstances relied upon as the excuse must appear in the statement of claim. See Rules, 1883, App. C., s. 4, No. 6. Therefore, where the defendant told the indorsee beforehand not to send such notice, and that he would pay the amount, this is not evidence to support an averment of notice, but should have been pleaded as a dispensation of it. Burgh v. Legge, 5 M. & W. 418. A mere promise to pay made in anticipation that the bill will be dishonoured, does not dispense with notice of dishonour. Pickin v. Graham, 1 Cr. & M. 725. But, if the drawer, a few days before the bill becomes due, call on the holder, and tells him that he has no regular residence, but he will call and see if the bill be paid by the acceptor, this dispenses with notice of dishonour. Phipson v. Kneller, 4 Camp. 285. So, if the holder send a dishonoured bill to the place of business of the indorser, for the purpose of giving notice, and find it closed, he can recover against him without having left a notice, as the
facts go to prove a dispensation of notice. Allen v. Edmundson, 2 Exch. 719; Crosse v. Smith, 1 M. & S. 545.
The effect of a promise to pay a dishonoured bill is thus summed up by Byles, J., in Cordery v. Colville, 14 C. B., N. S. 374; 32 L. J., C. P. 210, 211. A promise to pay may operate either as evidence of notice of dishonour, or as a prior dispensation, or as a subsequent waiver of notice. Whether made after, or even before, the time for giving notice has expired, -inasmuch as notice may be given at any time within the limit prescribed by law,-a promise to pay is always evidence from which a jury may infer due notice. But even when the other evidence is conclusive to show that due notice was not given, or when a jury refuses to draw the inference that it was given, yet a promise to pay made within the time for giving notice is a dispensing with notice, and made after that time is a waiver of notice. It is true that a prior dispensation, or subsequent waiver of notice, should be pleaded, but the C. L. P. Act, 1852, s. 222” (and now also Rules 1883, 0. xxviii., r. 1, ante, p. 286), "enables and obliges the court to amend the record, whenever an amendment is necessary in order to decide the real question in controversy between the parties. The practical consequence is, that in almost every case proof of a promise to pay cures the want of notice of dishonour." See also Woods v.
Dean, 3 B. & S. 101; 32 L. J., Q. B. 1; and post, p. 382.
Notice excused; no effects.] By sect. 50 (2) (c) (2), supra, notice of dishonour is dispensed with where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill. Notice of dishonour to the drawer is unnecessary if he had not, at the time of drawing or before the time of becoming due, any effects either in the
hands of the drawee, or consigned on their way to him; Bickerdike v. Bollman, 1 T. R. 405; 2 Smith's L. Cases; nor a reasonable expectation of having any; Claridge v. Dalton, 4 M. & S. 226. See Carew v. Duckworth, L. R., 4 Ex. 313, the case of a cheque. This excuse must be alleged in the statement of claim; per Parke, B., in Burgh v. Legge, 5 M. & W. 421. When issue is joined on the want of effects in the hands of the drawee, the terms of the allegation will sufficiently indicate the required proof. The averment is disproved if it be shown that the drawer had effects on their way to the drawee, though they never reached him. Rucker v. Hiller, 3 Camp. 217; 16 East, 43. So, if the drawer had some effects in the drawee's hands at the time when the bill was drawn, though at the time the bill was presented for acceptance and thence until presentment for payment he had not any. Orr v. Maginnis, 7 East, 359. So, though there were no effects at the time the bill was drawn or accepted, provided there were effects when it became due; for the whole period must be looked to from the drawing of the bill till it is due; and notice is requisite if the drawee had any effects at any time during that interval. Hammond v. Dufrene, 3 Camp. 145; Thackray v. Blackett, Id. 164. So, if the drawer has effects in the hands of the drawee, though he is indebted to the drawee greatly beyond that amount. Blackham v. Doren, 2 Camp. 503. So, where there is a running account between the drawer and the drawee, and a fluctuating balance between them, and the drawer has reasonable grounds to expect that he shall have effects in the drawee's hands when the bill becomes due; per Ld. Ellenborough, C. J., Brown v. Maffey, 15 East, 221; or, where the bill is drawn in the reasonable expectation that, in the ordinary course of mercantile transactions, it would be accepted or paid; Claridge v. Dalton, supra; Lafitte v. Slatter, 6 Bing. 623; and see Carew v. Duckworth, supra; or, where the acceptor has received from the drawer his acceptances upon which he has raised money, and some of which have been dishonoured, and some are outstanding; Spooner v. Gardiner, Ry. & M. 84. And, in general, where the drawer would have any remedy over against a third person (as in the case of a bill drawn for the accommodation of a person to whom he indorses it), notice ought to be alleged and proved. Cory v. Scott, 3 B. & A. 619; Norton v. Pickering, 8 B. & C. 610; Lafitte v. Slatter, supra; Turner v. Samson, 2 Q. B. D. 23, C. A.; Foster v. Parker, 2 C. P. D. 18. It is no excuse of notice, that the plaintiff and the defendant are both shareholders in a joint-stock company, and that the defendant drew the bill on the company (the acceptors) in order to raise money for them, and as an additional security to the plaintiff who advanced the money. Maltass v. Siddle, 6 C. B., N. S. 494 ; 28 L. J., C. P. 257.
The fact that the drawer of a bill made it payable at his own house is evidence that the bill is an accommodation bill, and so excuses notice of dishonour. Sharp v. Bailey, 9 B. & C. 44.
Notice dispensed with by ignorance of drawer's residence.] Where either want of notice or delay is sought to be excused by the holder's ignorance of the place of residence of the defendant, it is a question for the jury whether he used due diligence to find it; Bateman v. Joseph, 12 East, 433; and time may be allowed for inquiries by post; Baldwin v. Richardson, 1 B. & C. 245. It is not enough to show that inquiries as to an indorser's residence were made at the place at which the bill was payable. Beveridge v. Burgis, 3 Camp. 262. Inquiry should be promptly made of some of the other parties to the bill or note; and of persons of the same name, &c. Bayley on Bills, 6th ed., 281-2; Chapcott v. Curlewis, 2 M. & Rob. 484. Where the holder does not know the drawer's residence, notice of dis