CHAPTER
XV.

It makes no difference that such promise, payment or acknowledgment, were made under a misapprehension of the law, for every man must be taken to know the law (c); otherwise, a premium is held out to ignorance, and there is no telling to what extent this excuse might be carried (d). But if the promise or acknowledgment be made under a misapprehension of fact, as, if the bill had been presented for acceptance, and acceptance has been refused, a promise to pay, in ignorance of that circumstance, is no waiver of the consequence of laches (e). But a promise to pay will entirely dispense with proof of presentment or notice, and will throw on the defendant the double burthen of proving laches, and that he was ignorant of it (f). Where it is only as to part of the sum, the plaintiff can only avail himself of it as a waiver pro tanto. A drawer of a bill for 2007., who had not received due notice of dishonour, said, "I do not mean to insist on want of notice, but I am only bound to pay you 701." Abbott, C. J., "The defendant does not say that he will pay the bill, but that he is only bound to pay 701. I think the plaintiff must be satisfied with the 701." (g). The acknowledgment or promise may be made by the attorney for the defendant, or by his clerk, who has the management of the case (h). It need not be made to the plaintiff, but may be made to another party to the bill, or to a stranger (i). A promise to pay made by the drawer in expectation that a bill will be dishonoured, but before

promise, as a waiver of notice, and
its effect as evidence of notice. In
Kilby v. Rochussen, the Court held
a subsequent promise to be suffi-
cient evidence of due notice, but
would have amended if necessary
by adding an averment of waiver.
18 C. B. 357.

(c) Or, more correctly speak-
ing, ignorance of the law cannot

excuse.

(d) Billie v. Lumley, 2 East, 469; 6 R. R. 479.

(e) Goodall v. Dolley. 1 T. R. 712; 1 R. R. 372; Blesard v. Hurst, 5 Burr. 2672; Williams v. Bartholomew, 1 B. & P. 326 ; 4 R. R. 81; Sterens v. Lynch, 2 Camp. 332; 12 East, 38.

(f) Taylor v. Jones, 2 Camp. 105; 11 R. R. 677; Sterens v. Lynch, 12 East, 38; 2 Camp. 332. See instances of promises held insufficient in Dennis v. Morrice, 3 Esp. 158; Cumming v. French,

2 Camp. 106, n.; and see Rouse v. Redwood, 1 Esp. 156; Standage v. Creighton, 5 C. & P. 406; and Borradaile v. Lowe, 4 Taunt. 93, where it is said that an indorser can only be rendered liable by an express promise; and see Pickin v. Graham, 1 Cro. & Mee. 725; 3 Tyr. 923; 38 R. R. 738.

(9) Fletcher v. Froggatt, 2 C. & P. 569.

(h) Standage v. Creighton, 5 C. & P. 406.

(i) Potter v. Rayworth, 13 East, 417; Gunson v. Metz, 1 B. & C. 193: 2 D. & Ry. 334; Fletcher v. Froggatt, 2 C. & P. 569. In Rabey v. Gilbert, it was held that suffering judgment by default in an action at the suit of a second indorsee was evidence of notice or of a waiver of notice in an action by the first indorsee. 30 L. J., Exch. 171; 6 H. & N. 536.

it is dishonoured, does not dispense with notice; for it is to be understood as a promise on condition that due notice is given (k).

It seems, however, in some cases to have been considered, that a promise to pay is only evidence from which a jury may presume that a notice has been received (1). But that is not so. A promise to pay, if made before the time for giving notice has expired, is a dispensation; if made after that time it is a waiver, independently of any question of actual notice (m).

Though a party may waive the consequence of laches in respect of himself, he cannot do so in respect of antecedent parties (n).

CHAPTER
XV.

No laches can be imputed to the Crown, and, therefore, if Laches not a bill be seized under an extent before it is due, the neglect imputable to of the officer of the Crown to give notice of the dishonour the Crown. will not discharge the drawer or indorser (0).

A prior dispensation with notice, as absence of effects, must be specially alleged (p). So must the impossibility of giving notice, or any other excuse for not giving it (q). And a subsequent promise, when used as a waiver of notice, must also be specially pleaded(r). But a subsequent promise to pay, when used as evidence of the fact of notice, need not (s).

Pleading where notice is excused or

waived.

After the bill is due, a promise to pay, or a part Evidence of payment (), or the offer of it (u), or any admission of notice.

(k) Pickin v. Graham, 1 C. & M. 7253 Tyr. 923 ; 38 R. R. 738; and see Prideaux v. Collier, 2 Stark. N. P. C. 57, and Baker v. Birch. 3 Camp. 107; 13 R. R. 767.

(1) Hicks v. The Duke of Beaufort, 4 Bing. N. C. 229; 5 Scott, 598; and see Booth v. Jacobs, 3 Nev.& M. 351; Pickin v. Graham, 1 Cro. & Mee. 728; 3 Tyr. 923; 38 R. R. 738; but see Lundie v. Robertson, 7 East, 231; 3 Smith, 225; Haddock v. Bury, 7 East, 236, n.; Anson v. Bayley, B. N. P. 276; Hopley v. Dufresne, 15 East, 275; 13 R. R. 463; Norris v. Solomonson, 4 Scott, 257.

(m) Cordery v. Colville,32 L, J., C. P. 211; 14 C. B., N. S. 374; Woods v. Dean, 32 L. J., Q. B. 1 ; 3 Best & Smith, 101; Kilby v.

CHAPTER

XV.

liability (a), whether before or after the period for giving notice has expired, is primâ facie evidence of notice; but though there be no evidence to repel the inference, the jury are not bound to draw it (y). A letter from the defendant containing no promise of payment, but merely an ambiguous allusion to the bill being dishonoured, was held sufficient to warrant the jury in finding that the defendant had received due notice of dishonour (z). And the sending a person by the defendant, the drawer, to a remote indorsee two days after the bill had become due, to inform him that he, the drawer, had been defrauded of the bill, and that he should defend any action upon it, was left by Lord Tenterden to the jury as evidence to prove notice of dishonour (a). And a statement by the defendant that he should pay the bill, and not avail himself of the informality of the notice, has been held to be evidence of due notice (b). And a conditional promise to pay, although the condition be not complied with, is still evidence (c). Notice to produce a notice of dishonour is not necessary (d).

(x) Jackson v. Collins, 17 L. J., Q. B. 142; Mills v. Gibson, 16 L. J., C. P. 249; Rabey v. Gilbert, 6 H. & N. 536.

(y) Bell v. Frankis, 11 L. J., C. P. 300; 4 M. & G. 446.

(z) Booth v. Jacobs, 3 Nev. & M. 351.

(a) Wilkins v. Jadis, 1 Moo. & R. 41 and see Curlewis v.

Corfield, 1 Q. B. 814.

39.

(b) Bronnell v. Bonney, 1 Q. B.

(c) Campbell v. Webster, 15 L. J., C. P. 4; 2 C. B. 258; but see Pickin v. Graham, 1 C. & M. 725 ; 3 Tyr. 923; 38 R. R. 738.

(d) Swain v. Lewis, 2 C. M. & R. 261 Doe v. Somerton, 14 L. J., Q. B. 210.

ACCEPTANCE of a bill is the signification by the drawee of What it is. his assent to the order of the drawer; or, in plain terms, a written engagement to pay the bill when due in money, and by no other means (a).

(a) Clark v. Cock, 4 East, 72; Russell v. Phillips, 14 Q. B. 891;

Von Uster, 10 C. B. 318; Code,

s. 17.

19 L. J., Q. B. 297; Owen v. In Decroix v. Meyer, [1890]

CHAPTER
XVI.

A draft dispensing with acceptance.

Liability of a banker at whose bank a bill is made payable by the acceptor. Liability to the customer.

Before acceptance the drawee is not liable to the holder (b).

An instrument drawn by A. upon B., requiring him to pay to the order of C. a certain sum at a certain time" without acceptance," is still a bill of exchange, and may be so described in an indictment for forgery (c).

A bill is often by the acceptor made payable at a banker's. By such a direction on a bill the banker may incur liabilities to his customer, and also a liability to the holder.

We have already seen that, without acceptance, a banker may be liable to his customer, if, having sufficient funds, he neglect to pay his cheques. So a banker, at whose hands a customer accepting a bill makes it payable, may be liable to an action at the suit of that customer if he refuse to pay it, having at the time of presentment funds sufficient, and having had those funds a reasonable time, so that his clerks and servants might know it (d).

25 Q. B. D. 347, affirmed [1891]
Ap. Ca. 520, Lord Esher ques-
tioned the right of the drawee
to alter the form of the bill
save in his acceptance. Six
years later this obiter dictum
of the Master of the Rolls
was the base of the decision in
Scholfield v. Lord Londesborough,
[1896] Ap. Ca. 514 ; 65 L. J. 593,
when it was held that the ac-
ceptor owed no duty to any one
in regard to the form of the bill,
over which, as Lord Macnaghten
says, p. 546, "the drawer has the
control, and censorship of the
form is no part of the acceptor's
duty." Hence the alleged negli-
gence, even if it had been the
proximate cause of the fraud, was
not

the acceptor's and the
principle in Young v. Grote, 4
Bing. 253; 29 R. R. 552; did not
apply. In this case will be found
a full review by their lordships
of all the important cases on
fraudulent alteration reported
and unreported.

(b) Code, ss. 23 and 53 (1). See, too, Frith v. Forbes, 31 L. J., Ch. 793; 32 L. J., Ch. 10. As cheques are not accepted, the holder cannot in England enforce

(d) Ante, p. 19, and see Whitaker V. The Bank of England, 6 C. & P. 700, and 1 C., M. & R. 744; 1 Gale, 54; Rolin v. Steward, 14 C. B. 595; Robarts v. Tucker, 16 Q. B. 560. In Vagliano V. Bank of England, [1891] Ap. Ca. 107; 60 L. J. 145, Lord Macnaghten points out that the usual contract between banker and customer is insufficient by itself to impose upon the former the duty of honouring his customer's acceptances made payable at his bank and thereby running the risk of paying on a forged indorsement, though that is a sufficient authority if he choose to do so.