of notice to the indorser, at ail events unless the indorser be the person who is to pay, and who has no remedy over against any one (z); nor will it suffice to allege that he has not been damnified by the absence of notice. An intimation from the drawee that he cannot meet the bill, but that the drawer must take it up, will not relieve the holder from the necessity of giving the drawer notice (a). But if the acceptor give the drawer money for that purpose, such sum is recoverable from the drawer by the holder, as money paid to his use (b). Though the acceptor, at the time of dishonour, have no effects of the drawer in his hands, yet, if he ever had any after the drawing of the bill, or if, without effects, the drawer had any reasonable ground for expecting that the bill would be honoured, he is entitled to notice. "The case of Bickerdike v. Bollman," says Lord Ellenborough, "went upon the ground, that the drawer had no effects in the hands of the drawce at the time of the bill drawn, and the other cases followed on the same ground. But no case has gone the length of extending the exemption further to cases where the drawee had effects of the drawer in his hands at the time of the bill drawn, though the balance might vary afterwards, and be turned into the opposite scale. When there are no effects of the drawer in the hands of the drawee at the time when the bill is drawn, the drawer must know that he is drawing on accommodation; but, if he have effects at the time, it would be very dangerous and inconvenient, merely on account of the shifting of a balance, to hold notice not to be necessary. It would be introducing a number of collateral issues in every case upon a bill of exchange, to examine how the account stood between the drawer and the drawee, from the time the bill was drawn down to the time it was dishonoured" (c). Where the drawer had goods in the hands of drawees to the amount of 1,5007. but owed them 10,000/., and the drawees had appropriated the goods to the satisfaction of the debt, it was held, that notice of dishonour to the drawer was still essential. Lord Ellenborough observing-"If a man draws upon a house with whom he has no account, he knows that the bill will not be accepted; he can suffer no injury from want of (2) Carter v. Flower, 16 M. & W. 751. (a) Stables v. O'Kines, 1 Esp. 332. (b) Baker v. Birch, 3 Camp. 107; 13 R. R. 767. (e) Orr v. Maginnis, 7 East, 359 2 Smith, 328; Legge v. CHAPTER XV. CHAPTER Where there was reason able expectation that the bill would be honoured. notice of its dishonour; and, therefore, he is not entitled to such notice. But the case is quite otherwise where the drawer has a fluctuating balance in the hands of the drawee. There notice is peculiarly requisite. Without this, how can the drawer know that credit has been refused him, and that his bill has been dishonoured? It is said here, that the effects in the hands of the drawees were all appropriated to discharge their own debt; but that appropriation should appear by writing (d), and the defendant should be a party to it" (e). And, in general, though the drawer had no effects in the hands of the drawee, yet if he had any reasonable expectation that the bill would be honoured, he has been held entitled to notice of dishonour, as if he have consigned goods to the drawce, though, in fact, they never came to hand, or have accepted bills for him (f). So where R., being indebted to the drawer, represented to him that A. owed him money, and the drawer in consequence drew a bill on A., which A. accepted, but did not pay, it was held, that the drawer was entitled to notice of dishonour; for he had reason to expect either that R. would take up or that the acceptor would pay the bill, and might by want of notice be induced to relax in his endeavours to procure payment of the debt owing by R. (g). But the drawer of a bill, who has no effects in the hands of the drawee, except that he has supplied him with goods on credit, which credit does not expire till long after the bill becomes due, is not entitled to notice, for the goods are not such as can properly be set (d) Quære, as to the necessity of a writing. (e) Blackhan V. Doren, 2 Camp. 503; 11 R. R. 779. (f) Legge v. Thorpe, 12 East, 171; Rucker v. Hillier, 16 East, 43; 3 Camp. 217; 14 R. R. 278; Spooner v. Gardiner, 1 R. & M. 84: Walwyn v. St. Quintin, 1 Bos. & Pul. 652: Ex parte Heath, 2 Ves. & B. 240. It should be noticed that the Code does not in s. 50 (2) c (4), introduce the phrase which appears in s. 46 (2) c: "and the drawer has no reason to believe that the bill would be paid," hence these cases may not be of the same authority as heretofore. In Rucker v. Hillier, 3 Camp. 217; 14 R. R. 278: Lord Ellenborough points out the distinction between" visionary paper" and drafts when the drawer has a solid belief" that the bill would be honoured; in the former case he cannot be injured by want of notice, whereas in the latter he may not only wish to withdraw his effects or stop further consignments, but also have to make arrangements to meet the bill. (g) Lafitte v. Slatter, 6 Bing. 623; 4 M. & P. 457 ; 31 R. R. 510. The burthen of proving that the defendant has been injured by receiving no notice, where that is alleged, but where it is proved that he had no funds in the hands of the acceptor, lies on the defendant. Fitzgerald v. Williams, 6 Bing. N. C. 68; 8 Scott, 271. against the drawing, nor can there be any reasonable expectation that the bill will be paid till the expiration of the credit (h). 66 If the drawer of a bill make it payable at his own house, this is evidence to go to the jury that it is a bill drawn for the accommodation of the drawer himself, of the dishonour of which it is not necessary to apprise him. “I cannot understand," says Lord Tenterden, "why the drawer should with his own hand make the bill payable at his own house, unless he was to provide payment of it when at maturity" (i). CHAPTER XV. Notice of dishonour is also dispensed with as regards an As regards an indorser in the following cases :— Where the indorser knew at the time that the drawee was fictitious, or a person incapable of contracting on a bill or note: Where the indorser was the party accommodated: And where the indorser is the party to whom the bill is presented for payment (k). Ignorance of a party's residence will excuse neglect to give notice of dishonour, so long as that ignorance continues without neglecting to use the ordinary means for acquiring information. "It would be very hard," observes Lord Ellenborough, "when the holder of a bill does not know where the indorser is to be found, if he lost his remedy by not communicating immediate notice of the dishonour of the bill, and I think the law lays down no such rigid rule. The holder must not allow himself to remain in a state of passive and contented ignorance; but, if he (h) Claridge v. Dalton, 4 M. & Sel. 226; 16 R. R. 440. As to the form of the allegation in pleading, see Thomas v. Fenton, 16 L. J., Q. B. 362; 5 D. & L. 28. () Sharp v. Bailey, 9 B. & C. 44: 4 M. & R. 4; 32 R. R. 567. Quare, whether notice of dishonour be necessary, where the drawer dies before maturity, and an indorser is sued who is the drawer's executor. See Caunt v. Thompson, 18 L. J., C. P. 127; 7 C. B. 400. (k) Code, s. 50 (2) d. It may be noticed that this section differs slightly from sect. 50 (2) c, which relates to a drawer. Perhaps the reason may be this; a drawer can hardly draw a bill payable at indorser. Ignorance of party's resi dence. CHAPTER In case of accident. uses reasonable diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered, is due notice of the dishonour of the bill, within the usage and custom of merchants" (U). Where the holder, in order to discover the residence of the indorser, had merely made inquiries at a certain house where the bill was made payable, Lord Ellenborough said, "Ignorance of the indorser's residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here? How should it be expected that the requisite information should have been obtained where the bill was payable? Inquiries might have been made of the other persons whose names appeared on the bill, and application might have been made to persons of the same name with the defendant whose addresses are set down in the Directory" (m). Due diligence has, however, been held to be a question of fact (). After the residence of the party is discovered, the holder has the same time to give notice as he would have had in the first instance (0). Nemo ad impossibile tenetur; and, therefore, it should seem, on general principles, that the death or dangerous illness of the holder or his agent, or other accident not attributable to the holder's negligence, rendering notice impossible, may excuse it, or delay in giving it (p). But, where an indorser left home on account of the dangerous illness of his wife, at a distance, and a letter containing (1) Bateman v. Joseph, 2 Camp. (n) Bateman V. Joseph, 12 East, 433; 2 Camp. 463; 11 R. R. 443; Hilton v. Shepherd, 6 East, 14, n.; Siggers v. Browne, 1 M. & Rob. 520; Hewitt v. Thompson, 1 M. & Rob. 543. In these two last cases, the letters containing notice of dishonour had miscarried, and the jury were directed to consider whether the generality or indistinctness of the description which the defendant had given of himself in the bill had led the plaintiff into error. (0) Firth v. Thrush, 8 B. & C. 387; 2 M. & R. 359; Dans. & L. 151 32 R. R. 421; Allen v. Edmundson, 17 L. J., Exch. 291; 2 Exch. 719: Diron v. Johnson, 1 Jur.. N. S. 70. (P) Poth. 144; Pardessus du Contrat de Change, 426; Thompson, 483, 548; Code, s. 50 (2) a. XV. notice of dishonour of a bill lay unopened at his shop CHAPTER during his absence, till after the proper time for giving his indorser notice, Lord Ellenborough held that these circumstances afforded no excuse for the delay (1). Where a bill is drawn by several persons upon one of Of bills drawn themselves, since the acceptor is likewise a drawer, notice by several on of dishonour is superfluous, as the dishonour must be known one of themto one of them, and the knowledge of one is the knowledge of all (r). The death, bankruptcy or insolvency of the drawee, however notorious, constitute no excuse for neglect of notice (s). Nor an agreement or understanding between the parties, that the instrument shall not be payable till after a certain event (t). selves. Death, bankruptcy, and drawee. insolvency of Notice of dishonour need not be given if the bill be on Where stamp an insufficient stamp (u). insufficient. Note not negotiable. CONSE QUENCES OF Nor to the indorser of a promissory note not negotiable (r). The necessity of giving notice of dishonour may be waived by anticipation, or neglect or delay in giving it, subsequently to the omission, and such waiver may be NEGLECT, express or implied. A subsequent promise to pay or admis- HOW WAIVED. sion of liability is such a waiver. "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 "(). And a payment of part, or an acknowledgment of liability (z), though after action brought (a), will be evidence of notice (b). (q) Turner v. Leach, 4 B. & Ald. 451; 23 R. R. 344. (r) Porthouse V. Parker, 1 Camp. 82; 10 R. R. 637. But in case of fraud a different rule would prevail. Bignold v. Waterhouse, 1 M. & Sel. 259. And it may be doubtful how far this rule would hold in the case of a joint stock company. (x) Russell v. Langstaffe, 2 Doug. 514; Exdaile v. Sowerby, 11 East, 114: 10 R. R. 440; Boulthee v. Stubbs, 18 Ves. 21: 11 R. R. 141; but see 3 Bro. C. C. 1. (t) Free v. Hawkins, 8 Taunt. 92; 1 Moore, 28. (u) Cundy v. Marriott, 1 B. & Ad. 696: 35 R. R. 416. (x) Plimley V. Westley, 2 Bing. N. C. 249; 2 Scott, 423; 1 Hodges, 324. (y) Code, s. 50 (2) b; Cordery () Vaughan v. Fuller, 2 Stra. V. (b) Many of the cases, cited below, fail in drawing the proper distinction between the effect of a |