Protest.] A protest, where necessary, is usually stated in the declaration; but, if omitted, it seems to be involved in the allegation of notice, when that can only be legally given through a protest; the plaintiff should therefore, in such case, be prepared to prove it on an issue upon due notice. Salomons v. Stavely, 3 Doug. 298. In case of a foreign bill, notice without a protest is not sufficient, unless the party to whom notice is given resides in this country; Robins v. Gibson, 1 M. & S. 288.; though he should happen at the time of the dishonour to be absent. Cromwell v. Hynson, 2 Esp. 511. But in giving notice of nonpayment to the drawer of a foreign bill (and one drawn in Ireland is a foreign bill) resident abroad, it is sufficient to inform him that the bill has been protested, without sending a copy of the protest. Goodman v. Harvey, 4 A. & E. 870. In case of an inland bill, a protest is of no effect. Windle v. Andrews, 2 B. & A. 696. The production of the protest, when made abroad, is sufficient proof of the protest. Anon. 12 Mod. 345. But a protest made in England must, it is said, be proved in the ordinary way. Chitty on Bills, 405., 7th ed. The presentment of a foreign bill in this country must be proved as if it were an inland bill; and the protest is not evidence of it. Chesmer v. Noyes, 4 Camp. 129.

By the 2 & 3 W. 4. c. 98., reciting that doubts had arisen as to the place in which it is requisite to protest, for nonpayment, bills of exchange which, on presentment for acceptance to the drawee or drawees, shall not have been accepted, &c., it is enacted—that, from and after the passing of that act, all bills of exchange wherein the drawer or drawers thereof shall have expressed that such bills of exchange are to be payable in any place other than the place by him or them therein mentioned to be the residence of the drawee or drawees thereof, and which shall not on the presentment for acceptance thereof be accepted, shall and may be, without further presentment to the drawee or drawees, protested for nonpayment in the place in which such bills of exchange shall have been by the drawer or drawers expressed to be payable, unless the amount owing upon such bill of exchange shall have been paid to the holder or holders thereof on the day on which such bills of exchange would have become payable had the same been duly accepted. This statute appears to have been occasioned by the case of Mitchell v. Baring, M. & M. 381.

Notice, proof of, when excused.] Whenever the want of notice is excused, the circumstance relied upon as the excuse must be stated in the declaration. Therefore, where the defendant told the indorsee beforeband 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.; and proof of knowledge of dishonour is not equivalent to proof of notice. Ibid.

Notice excused; no effects.] 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. It is enough if the drawer had effects on the way to the drawce. Rucker v. Hiller, 3 Camp. 217., S.C. 16 East, 43. So if the drawer had 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 has effects at any time during that interval. Hammond v. Dufrene, 3 Camp. 145. Thackray v. Blackett, 3 Camp. 164. So if the drawer has effects in the hands of the drawee, though he is indebted to the drawee greatly beyond that amount. Blackhan v. Doren, 2 Camp. 503. So where the drawer has effects in the hands of the drawee, though to a less amount than the bill. Thackray v. Blackett, 3 Camp. 164. ; but see Smith v. Thatcher, 4 B. & A. 200. 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 Lord 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; per Le Blanc J., Claridge v. Dalton, 4 M. & S. 231.; France v. Lucy, R. & M. 342.; Lafitte v. Slatter, 6 Bing. 623.; or where the acceptor has received from the drawer his acceptances upon which he has raised money, and some of which are outstanding. Spooner v. Gardiner, R. & 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 an indorsee, notice, and not an excuse of notice, ought to be alleged and proved. Cory v. Scott, 3 B. & A. 623. Norton v. Pickering, 8 B. & C. 610.

Where the bill is alleged to be an accommodation bill, the fact, that the drawer of a bill made it payable at his own house, is evidence of such averment. Sharp v. Bailey, 9 B. & C. 44.

Notice, strict proof of, dispensed with by promise to pay, or acknow ledgment, &c.] A promise after dishonour of the bill to pay, if the holder would call again, is evidence of notice, and not an excuse of notice; Lundie v. Robertson, 7 East, 231.; so where the drawer of a foreign bill, on being told it was dishonoured, says that his affairs are at that moment deranged, but that he would be glad to pay it as soon as his accounts with his agents are cleared, this admission will dispense with proof of a protest. Gibbon v. Coggon, 2 Camp. 188. Greenway v. Hindley, 4 Camp. 52. Where the plaintiff gave in evidence an agreement made between a prior indorser and the defendant (the drawer), after the bill became due, reciting that the defendant had drawn, amongst others, the bill in question; that it was over due, and ought to be in the hands of the prior indorser; and that it was agreed that the latter should take the money due to him upon the bill by instalments; this agreement was held to dispense with notice of dishonour. Gunson v. Metz, 1 B. & C. 193. A payment, or promise by a party who has no notice of the acceptor's default, does not dispense with strict proof of notice. Goodall v. Dolley, 1 T. R. 712. Pickin v. Graham, C. & M. 725. Where the drawer, being a foreigner, on being asked to pay the bill, said, "I am not acquainted with your laws; if I am bound to pay it, I will;" this was held not to dispense with proof of notice. Dennis v. Morrice, 3 Esp. 158. So of a mere offer

to compromise. Cuming v. French, 2 Camp. 106. (n). The drawer of a bill, being applied to for payment, said, "If the acceptor does not pay, I must; but exhaust all your influence with the acceptor first." The drawer afterwards directed the applicant to raise the money on the lives of himself and the acceptor. It was held that this admission was not to be taken as conclusive evidence of the defendant's having received, or waived, notice of dishonour of the bill. Hicks v. Duke of Beaufort, 4 New Ca. 229. See also Browneil v. Bonney, 1 Q. B. 39. ante, p. 217.

Where the drawer, before the bill became due, stated to the holder that he had no regular residence, but would call and inquire whether the bill would be paid, Lord Ellenborough held that proof of notice was unnecessary; Phipson v. Kneller, 4 Camp. 285., see also Hill v. Heap, D. & R., N. P. C. 57.; but, quære, whether this was not rather a waiver of notice than proof of it?

Notice dispensed with by ignorance of drawer's residence.] Where notice is 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. Baldwin v. Richardson, 1 B. & C. 245. Thus, it is not enough to shew that inquiries as to his residence were made at the place at which the bill was payable. Beveridge v. Burgis, 3 Camp. 262. Calling on the last indorser and last but one, the day after the bill becomes due, to know where the drawer lives, and, on his not being in the way, calling again the next day, and then giving the drawer notice, has been considered sufficient. Browning v. Kinnear, Gow. 81. Inquiry should be made of some of the other parties to the bill or note; and of persons of the same name. Bayley on Bills, 229., citing Beveridge v. Burgis, 3 Camp. 262. In one case it was held sufficient, on the dishonour of a promissory note, to make inquiry at the drawer's for the residence of the payee. Sturges v. Derrick, Wightw. 76. An attorney employed to discover the residence of a party to a bill, and discovering it, has, like a banker, a day to consult his employer; and it is sufficient if he forward the information to him on the next day. Firth v. Thrush, 8 B. & C. 387. Where the holder is excused by special circumstances from giving notice on the usual day, the common allegation of notice is still sufficient. Firth v. Thrush, suprà.

Indorsee against Drawer.

In an action by the indorsee of a bill against the drawer, the declaration alleges the indorsement to the payee, and subsequent indorsements on the bill, as well as the matters alleged in an action by payee against drawer. The proofs therefore will be the same as in an action by the payee against the drawer, with the additional proof of the indorsements. The mode of proving a title by indorsement has already been stated, p. 209.

In an action by indorsee against drawer, it was pleaded that the bill was drawn by a partner, but not for partnership purposes, and was indorsed to the plaintiff after it became due: the replication was, that it was not indorsed after it became due, but was indorsed to, and taken and received by, the plaintiff before it became due, It

was held that it was sufficient for the plaintiff to put in the bill, and not necessary that he should give any evidence to shew that the bill was indorsed to him before it became due. Parkin v. Moon, 7 C. & P. 408.

A bill being drawn and indorsed in the name of the firm under which defendant and A. carried on business, a question arose whether the indorsement was before or after the partnership was dissolved. The bill was dated before the dissolution, but the indorsement was not dated. Held, that it might be left to the jury to say whether it was indorsed before or after; and that, as it was drawn payable to the defendants, the jury might reasonably infer that it was indorsed shortly after the drawing. Anderson v. Weston, 6 New Ca. 296.

Account stated.] Where defendant, knowing the plaintiff to be the indorsee of a bill which was due, promised him to pay it, Coleridge J. held that the plaintiff might recover on an account stated. Oliver v. Dovatt, 2 M. & Rob. 230.

Indorsee against Indorser.

In an action by an indorsee against the indorser of a bill, the plaintiff must prove the following matters, if traversed :- 1. The signature of the defendant: 2. The indorsements between that of the defendant and the plaintiff, stated in the declaration: 3. The presentment to the drawee or acceptor, and the dishonour: 4. Due notice of the dishonour to the defendant. It is not necessary, as against an indorser, to prove the signature of the drawer or of prior indorsers; for the indorsement of the defendant admits the handwriting of the drawer, and the defendant cannot insist that it is a forgery. Lambert v. Oakes, 1 Ld. Raym. 443. So it admits the ability and signature of all antecedent indorsers. Bayley on Bills, 366. Critchlow v. Parry, 2 Camp. 182. In suing the indorser on nonpayment of the bill by the drawee, it is unnecessary to state an acceptance; and if stated, it need not be proved. Tanner v. Bean, 4 B. & C. 312. It is only necessary to prove a presentment for payment at the place, if any, pointed out in the acceptance. Parks v. Edge, 1 C. & M. 429.

The rules with regard to the presentment of the bill and notice of dishonour are, in general, the same in this action as in an action by the payee against the drawer. See antè. No evidence of a demand upon the drawer, or prior indorsers, is necessary. Bromley v. Frazier, 1 Stra. 441. The fact that the drawer has never had any effects in the hands of the drawee, will not excuse the want of notice to the indorser, who has no concern with the accounts between the drawer and acceptor; Wilkes v. Jacks, Peake, 202., Brown v. Maffey, 15 East, 216.; and the indorser without consideration (but without fraud) of a bill, the drawer and acceptor of which are fictitious persons, is entitled to notice. Leach v. Hewitt, 4 Taunt. 731. Proof of notice will be dispensed with by a promise of the defendant to pay; Wilkes v. Jacks, Peake, 202.; provided it be an express one; therefore the following letter from the indorser was held not to waive the proof of notice: "I cannot think of remitting till I receive the draft; therefore if you think proper you may return it to Trevor and Co., if you think me unsafe." Borradaile v. Lowe, 4 Taunt. 93. A promise, not made to

the plaintiff, but to another person who was holder of the bill at the time, will be sufficient. Potter v. Rayworth, 13 East, 418.

Evidence under the money counts.] An indorsement is primâ facie evidence of money lent by the indorsee to his immediate indorser. Bayley on Bills, 288. But where the indorser told his indorsee just before presentment, that the bill would not be paid, that notice need not be sent to him, and that he would send the money on a future day, this was held no evidence on an account stated; there being no debt due from the indorser at the time of the promise; nor any proof of his liability on the bill. Burgh v. Legge, 5 M. & W. 418.

Defence.

By the New Rules H. T. 4 W. 4., in actions on bills or notes the pleas of non assumpsit, or nunquam indebitatus, are inadmissible. The defendant must traverse some matter alleged, or plead in confession or avoidance. (See Appendix No. I.) If an executor declares on a bill or note payable to his testator, laying a promise to pay the executor, such promise may still be denied by non assumpsit; for the action is not on the bill simply, but on a promise not implied by it. Timmis v. Platt, 2 M. & W. 720.

The proofs, required on a special traverse of facts alleged in the declaration, have already been considered. The following are some of the most usual defences to actions on bills.

Stamp.] No stamp, or a wrong one, is a defence admissible under a traverse of the drawing or acceptance. Dawson v. Macdonald, 2 M. & W. 26. M'Dowall v. Lyster, 2 M. & W. 52. So in an action on a banker's check it is competent for the defendant to shew that it was post dated, on a traverse of the making of the check. Field v. Woods, 7 A. & E. 114. See antè, p. 157.

Alteration.] An alteration of such a kind as to discharge the acceptor may be taken advantage of under a traverse of the acceptance. Cock v. Coxwell, 2 C. M. & R. 291. But the plaintiff may nevertheless recover on a count for the original consideration; Atkinson v. Hawdon, 2 A. & E. 628.; though a promise to pay the bill, coupled with a denial of liability on it, is not evidence of an account stated. Calvert v. Baker, 4 M. & W. 417. Where the defendant had paid interest on an altered note, this was held to be evidence of an alteration by his consent. Cariss v. Tattersall, 2 M. & G. 890. It is for the party, who sues on an altered instrument, to give some evidence to explain it. Clifford v. Parker, Id. 909. See further as to alterations which avoid bills under the stamp acts, antè, p. 164, 165.

Fraud.] Fraud, which makes the contract void or voidable as against the defendant, must be specially pleaded. See New Rules, H. T. 4 W. 4. But where the fraud is one which avoids the consideration, it may be given in evidence under a plea denying the consideration. Mills v. Ŏddy, 2 C. M. & R. 103. In an action by indorsee against drawer, the defendant pleaded that the bill was drawn by him, and indorsed for a special purpose to L., who in fraud of such purpose