of another banker, after four o'clock in the afternoon; but merely to give an answer to the person so presenting it, whether it is a good check or not; and in case the check is approved, a mark is made on it, either by the person presenting it, or the person who gives the answer; and a check so marked is considered as entitled to a priority of payment on the next day. It is not necessary to present a check, so marked, for payment at the banking house on the next day; it is sufficient if it be presented at the clearing house.

A presentment at a banking house after banking hours, when the house is shut, is not a sufficient presentment to charge the drawer; and no inference is to be drawn from the circumstance of the bill being presented by a notary, that it had been before duly presented within banking hours.

Where the holder of a bill of exchange intends to sue any of the indorsers, it is incumbent on him first to demand payment from the acceptor, on the day when the bill becomes due, and in case of refusal, to give due notice (54) thereof, within a reasonable time, to the indorser (55),

b Robson v. Bennett, 2 Taunt. 389. d Rushton v. Aspinall, Doug. 679. e Elford v. Teed, 1 M. and S. 28.

(54) Notice of dishonour must be given within a reasonable time. The general rule, as it may be collected from Tindal v. Brown, 1 T. R. 167. seems to be with respect to persons living in the same town, that the notice shall be given by the next day; and with regard to such as live at different places, that it shall be sent by the next post. But if in any particular place the post should go out so early after the receipt of the intelligence, as that it would be inconvenient to require a strict adherence to the general rule, then, with respect to a place so circumstanced, it would not be reasonable to require the notice to be sent till the second post. In Haynes v. Birks, 3 Bos, & Pul. 599. where the bill, which was put by the plaintiff in the hands of his banker to present for payment, having been dishonoured in London about two o'clock on Saturday, and presented again at nine in the evening, by a notary, and notice given of the dishonour to the plaintiff on Monday at Knightsbridge, who gave notice to the indorser of it on Tuesday at noon, in Tottenham Court Road, it was holden that this notice was reasonable notice; Lord Alvanley, C. J. observing, that it did not appear, at what time on Monday the plaintiff received the notice from his banker; that he was not bound to be at home the whole of the day; and supposing him to have returned home late in that day, he was not bound to send a special messenger to the defendant; if he informed the defendant by the course of the post it was suf ficient; and supposing him to have so done, the defendant would

Such demand, refusal, or default, and notice thereof, must be alleged in the declaration and proved. The reason on which this rule proceeds is this; the indorser is in the nature of a surety only, and his undertaking to pay the bill is not an absolute, but conditional undertaking; that is, in the event of a demand made on the acceptor, (who is primarily liable) at the time when the bill becomes due, and refusal on his part, or neglect to pay. It is not necessary to make any demand on the drawer.

The notice of dishonour must proceed from the person who can give the drawer or indorser his immediate remedy on the bill.

In an action against the defendant as indorser of a bill, to prove notice of non-payment A. was called, who swore that he had been employed by the original parties to the bill to get it discounted; that when it became due, it was in the hands of one Abbott, to whom the plaintiff had indorsed it; that the day after, the witness met the defendant and told him it had not been paid; that the defendant asked who held it,

e Heylin v. Adamson, 2 Burr. 679.

f Stewart v. Kennett, 2 Camp. N. P. C. 177.

only receive his letter on Tuesday. The Chief Justice added, "There is not any law which requires notice to be given within any certain fixed time; it need not be given with all the dispatch which can possibly be used, but with all the dispatch that can reasonably be expected." Whether notice has been given within a reasonable time appears to be a mixed question of law and fact, or rather a question of law dependent on facts, viz. the situation and places of parties, post hours, and the like. See Darbishire v. Parker, 6 East's R. 3. where this question was agitated, and the cases on this point are collected.

(55) So before the indorsee of a promissory note payable to A. or order brings an action against the indorser, he must make a demand, or use due diligence to obtain payment from the maker of the note, per Lord Mansfield, C. J. in Heylin v. Adamson, 2 Burr. 676-7. who added, that this was determined in C. B. on great consideration in Pasch. 4 Geo. 2. cited by Lee, C. J. in Collins v. Butler, 2 Strange, 1087. But where the indorser has paid part of the money, that circumstance is sufficient to dispense with proving a demand on the maker of the note. Per Lee, C. J. Midd. sittings, B. R. Str. 1246. It is not an excuse for not making a demand on a note or bill, or for not giving notice of non-payment, that the maker or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends or otherwise. Admitted in Russel v. Langstaffe, Doug. 515. and in Warrington v. Furbor, 8 East, 245.

and that the witness answered, it lies at Messrs. Bond's, Abbott's bankers. Lord Ellenborough, C. J.: "If you could make A. the agent of the holder of the bill, the notice would be sufficient: but in reality he was a mere stranger. The bill, when dishonoured, lay at the bankers of Abbott, with whom A. had no sort of connection. But the notice must come from the person who can give the drawer or indorser his immediate remedy upon the bill; otherwise it is merely an historical fact. In this case A. was not possessed of the bill, and had no control over it. The defendant, therefore, is not proved to have had any legal notice of the dishonour of the bill, and is discharged from the liability he contracted, by indorsing it." Plaintiff non-suited.

Cases frequently occur, in which it is impracticable to make an actual demand; under these circumstances, due diligence to obtain payment from the acceptor is equivalent to a demand. In like manner where the residence of the indorser is unknown to the holder, if due diligence be used in discovering the place of residence, and notice is given as soon as that is discovered, it is sufficient.

As the rule requiring notice is introduced for the benefit of the party to whom such notice is given, of course it may be waved by that party. Quilibet potest renunciare juri pro se introducto. In some cases the rule is dispensed with, as where the drawer has not any effects in the hands of the acceptor; for then the drawer is presumed to have notice that the bill will not be paid; besides, not having any effects to withdraw from the hands of the acceptor, he cannot sustain any injury from the want of notice. But the circumstance of the indorser having effects in the hands of the acceptor, will not entitle the drawer to notice, if the drawer has not any effects in the hands of the acceptor. This was decided in the case of Walwyn v. St. Quintin, 1 Bos. and Pul. 652. which was an action of assumpsit on a bill of exchange drawn by defendant on one Dean, (by whom it was accepted) in favour of Thomas, by whom it was indorsed to plaintiff. The bill was drawn to accommodate Thomas, the indorser, who had placed securities on which he wished to raise money in the hands of the acceptor, but the drawer had not any effects in the hands of the acceptor. The bill, not having been paid when due, was protested; but notice of non-payment was not given to the drawer till four days afterwards. The plaintiff having threatened to sue the indorser and acceptor, the indorser paid part of the money due on the bill to plaintiff's attorney; afterwards on a representation being made to the

g Bateman v. Joseph, 12 East, 433.

plaintiff of the probability of the acceptor being able to pay at a future period, plaintiff agreed not to press him. It was holden, that it was not necessary to give the drawer notice of the dishonour, the drawer not having any effects in the hands of the acceptor, although the indorser had.

From the circumstance of part payment of a bill without any objection to the want of notice, a jury may be directed to presume that notice was regularly given.

Protest. In addition to notice of dishonour, it is necessary for the holder, in the case of a foreign bill, to protest (56) it for non-payment; but where there has been a promise of payment, after bill became due, such promise supersedes the necessity of proving either presentment for payment', notice of dishonour, or protest.

But where the drawer of a foreign bill of exchange at the time of the drawing was in a foreign country, but returned home before it became due, at which time it was dishonoured and protested, but notice of the dishonour only, and not of the protest, was left at the drawer's house, held that this was sufficient'.

It appears from a passage extracted from the case of Tassel v. Lewis, Lord Raym. 743. ante, p. 338. that this protest ought to be made on the last day of grace (57). This strictness, however, is not observed in practice. The modern usage is for the notary to make a minute on the bill, consisting of his initial, the day, month, and year, when payment was refused, and charges for making the minute. This minute, which is called noting, is unknown in the law as distinguished from the protest. The notary having made his minute, draws up the protest at his leisure.

In Buller's Nisi Prius, p. 272. it is said, "That the use of noting is, that it should be done the very day of refusal, and the protest may be drawn any day after by the notary, and be dated of the day the noting was made."

The practice certainly is as here stated; but in Chaters v.

(56) See the form of protest used in England. Chitty on Bills, p. 159.

(57) With regard to foreign bills of exchange, all the books agree that the protest must be made on the last day of grace. Per Buller, J. in Leftly v. Mills, 4 T. R. 174.

Bell, 4 Esp. N. P. C. 48. a question was raised, whether the protest ought not to be drawn on the day on which the bill is dishonoured; and it was contended, that the mere noting the bill on that day, and drawing the protest on a subsequent day, was insufficient. Lord Kenyon was of opinion that it was sufficient; and a new trial having been granted, Lord Ellenborough agreed in opinion with Lord Kenyon. A case was then reserved for the opinion of the court, and after argument, the court, conceiving the question to be of great importance, directed it to be turned into a special verdict. But the sum in dispute being very small, and the parties unwilling to incur the expense of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again.

The protest must be stamped.

The protest for non-payment on inland bills of exchange is regulated by the statute 9 and 10 W. 3. c. 17.; for at common law a protest was not required on such bills; and the power of protesting given by this statute is attended with very few advantages; so that it is not very frequently exercised.

Having inserted this statute before, p. 325, as an introduction to the statute 3 and 4 Ann. c. 9. which gives the protest for non-acceptance on inland bills of a certain description, I must refer the reader to that part of the work.

It remains only to observe, that the holder of a check is not bound to give notice of its dishonour to the drawer, for the purpose of charging the person from whom he received it. It is sufficient, if he presents it with due diligence to the bankers on whom it is drawn, and gives due notice of its dishonour to those only, against whom he seeks his remedy.— If a banker in London receives a check, by the general post one day, and presents it for payment the next day, he will be considered as having used due diligence".

VII. Of the Acts of the Holder, whereby the Parties to the Bill may be discharged.

Ir the holder enter into a composition with the acceptor, he thereby discharges the indorser".

m Rickford v. Ridge, 2 Camp. N. P.

C. 537.

n Ex-parte Smith, Co. B. L. 5th edit.

p. 168, 169. 3 Bro. Ch. C. 1. S. C.