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4. Due notice of the dishonour of the said bill was given to the defendant, but he has not paid the amount of the said bill.
The plaintiff claims
Indorsee against Drawer of Bills of Exchange (a). 1. The defendant, on the 13th day of April, 1877, drew two Claim by bills of exchange upon Messrs. G. & Co., one for £700 and the indorsee other for £750, both payable to the defendant's order three drawer months after date, and the said Messrs. G. & Co. accepted the said bills.
2. The defendant indorsed each of the said bills to one F. G., who indorsed the same to the plaintiff.
3. The said bills became due on the 16th day of July, 77, when they were duly presented for payment, but were dishonoured.
4. Due notice of the dishonour of the said bills was given to the defendant ; but the defendant has not paid the same or either of them. The plaintiff claims :
Statement of Defence. 1. The bills sued on were drawn by the defendant for the Defence. accommodation of a person named W. G., and the defendant received no value or consideration for drawing the same. 2. When the said bills became due they were in the hands of Accommo
dation and a person named L. V., to whom they had been indorsed by the
transfer said W. G. The said L. V. claimed only £60 as against the after defendant upon the said bills, and it was agreed between the maturity said L. V. and the said W. G. that, upon payment by the defen- value. dant to the said L. V. of £60, the said bills should be cancelled and given up to him. The defendant paid the said sum of £60 to the said L. V.
3. The said W. G. having obtained the said bills from the said L. V., did not return them to the defendant or to the said L. V., but, without having any right so to do, dealt with the said bills, and transferred them to the plaintiff, after they became due as aforesaid, and without any value or consideration.
4. The plaintiff is not the lawful holder of the said bills, and is not entitled to sue the defendant on them.
(a) The acceptor is the party primarily liable on a bill of exchange, by Acceptor which is meant that the holder of the bill at the time it falls due must primarily seek payment from him before he resorts to the drawer or any of the in- liable
5. The defendant denies that he received due notice of the dishonour of the said bills as alleged.
Claim by Indorsee against Drawer for Default of Payment, alleging Notice indorsee
of Dishonour, and alternatively excusing Notice of Disagainst drawer
honour (a). excusing notice of 1. On or about the 21st day of May, 1875, the defendant dishonour. drew a bill of exchange, addressed to Messrs. S., H. & Co.,
notice of dorsers, where there are indorsers. The drawer and indorsers are spoken dishonour. of as being sureties for the payment of the bill, and as only liable on the
default of their principal. It is necessary, therefore, to the plaintiff's cause of action, when he is suing on a bill against the drawer or the
indorsers, that he should duly present the bill for payment when it falls Present
due. As is well known, on bills of exchange and promissory notes days ment for of grace are allowed ; and in the case of inland bills or notes the time to payment - present a bill for payment
is on the third day after, and exclusive of the days of day of becoming due. (Tassell v. Lewis, 1 Ld. Raym. 743.) When the grace.
last day of grace falls on a Sunday or Christmas Day, or on a Good Friday, or on a Fast-day, it is to be presented on the day next before those respective days ; but by the Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), when the last day falls on a bank holiday, the presentment is to be on the next following day. Presentment must be made, although the acceptor has become bankrupt, and where he is dead, it must be made to his executors or administrators, or if there be none, at the
house of the deceased. (Chitty on Bills, 9th edit. 339.) A bill payable Where pre- at a banker's must be presented within banking hours (Parker v. Gordon, sentment 7 East. 385); but presentment to a banker's clerk at the clearing-house to be made. is sufficient (Reynolds v. Chettle, 2 Camp. 596); and presentment at eight
in the evening at the private residence of a merchant is good. (Barclay v. Bailey, 2 Camp. 527.) It has been already stated (ante, 167) that where a bill has been accepted payable at a particular place, in order to charge the acceptor, it is not necessary to present the bill for payment at that place unless it was made payable there and not elsewhere ; but in order to charge the drawer or any indorser, it is otherwise, for where a bill is drawn or accepted payable at a particular place, the drawer or indorser can only be rendered liable upon presentment and dishonour at that place. (Gibb v. Mather, 8 Bing. 214; Saul v. Jones, 28 L. J. Q. B. 37.) In an action against the drawer or indorser not only must the plaintiff aver due presentment for payment and dishonour, he must also aver that the defendant had due notice of the same. As to what consti
tutes a good notice of dishonour, see post, 192–193. What ex- (a) Notice of dishonour to the drawer is unnecessary, if he had not at cuses from the time of drawing, or before the time of the bill becoming due, any effects notice of either in the hands of the drawee or consignee, or on their way to him dishonour. (Bickerdike v. Bolman, 2 Smith, L. C., 7th ed. 50); nor a reasonable
expectation of having any. (Claridge v. Dalton, L. M. & S. 226.) The Courts, however, are disinclined to dispense with notice of dishonour, and evidence that the drawer had any effects in the hand of the acceptor, though he owes him for more than the value of those effects (Blackham v. Doren, 2 Camp. 503), will necessitate an averment and proof of notice of dishonour ; 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 endorses it) notice must be alleged. (Cory
whereby he required them to pay to the defendant or his order Claim by 2500 francs three months after date.
against 2. The said Messrs. S., H. & Co. accepted the said bill. drawer 3. The said bill of exchange was afterwards indorsed by the excusing
notice of defendant to the plaintiff.
dishonour. 4. The said bill was, at maturity, duly presented by the plaintiff to the said Messrs. S., H. & Co. for payment, and was dishonoured by them.
5. Due notice of the dishonour of the said bill was given to the defendant. 6. If due notice of dishonour was not given to the defen- Statement
of facts dant, the plaintiff says that the said S., H. & Co. had no effects
excusing of the defendant in their hands wherewith to pay the same at notice of
dishonour, any time during the currency of the said bill, nor had the defendant any reason to believe that they would pay the said bill, nor has the defendant sustained any damage by reason of not having had notice of the dishonour of the said bill.
7. The said bill has never been paid. The plaintiff claims £
v. Scott, 3 B. & Ald. 619; Laffitte v. Slatter, 6 Bing. 623.) “The rule is that when a person is entitled to notice of dishonour, no excuse is sufficient to obviate the necessity of such notice, unless the defendant can have no remedy over. (Brett, L. J., in Turner v. Samson, 46 L. J. Q. B., C. P. & Ex. D. 167.) The doctrine already stated, as applied to the case of a drawer, will not be extended to an indorser, unless the facts make it quite clear to an absolute certainty that sach indorser could not have been damnified by want of notice. (Foster v. Parker, 46 L. J. Q. B., C. P. & Ex. D. 77.) Whenever the want of Circumnotice is excused, the circumstances relied upon as the excuse must be stances stated in the statement of claim (Burgh v. Legge, 5 M. & W. 418) ; but a excusing mere delay in giving notice of dishonour, unavoidable or reasonable, in non-notice the circumstances of the particular case need not be specially excused, to be stated but may be averred as due notice of dishonour. (Firth v. Thrush, 8 in pleadB. & c. 387 ; Lundie v. Robertson, 7 East, 231.) The effect of a promise ing. to pay a dishonoured bill has been stated thus by Byles, J.: “A promise Waiver of. 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, a promise to pay is always evidence from which a jury may infer due notice. But even where the evidence is conclusive to show that due notice was not given, or where the 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.” (Cordery v. Colville, L. J. 32 C. P. 210.) Where a promise to pay is relied on as excusing notice of dishonour, it ought to be expressly alleged in the statement of claim either as a dispensing with notice or a waiver of notice. See also on this subject Rabey v. Gilbert, 30 L. J. Ex. 170, 172.
Statement of defence.
Statement of Defence. 1. The defendant denies that he indorsed the bill mentioned in the statement of claim to the plaintiff. He indorsed it to one M. W., who indorsed the same to the plaintiff long after it became due.
2. It was presented for payment by the said M. W., who was aware that only S., H. & Co. were liable, they having received the proceeds thereof, and for whose accommodation it was drawn and discounted by the said M. W.
3. Defendant denies that notice of dishonour was duly given to him. 4. The defendant, and the said M. W., had every
reason and right to expect that S., H. & Co. would pay the same.
5. The plaintiff never gave any value or consideration for the said bill, and took it with notice of the premises.
Payee against drawer where acceptor dead at maturity of bill.
Payee against Drawer for Default of Payment where the Acceptor
was dead, and no Executor or Administrator appointed at the
time the Bill became due. 1. The defendant, on the 1st day of May, drew a bill of exchange upon one A. B. for £50, payable to the plaintiff or his order one month after date.
2. The said A. B. accepted the same.
3. Before the said bill became due, the said A. B. died, and when the said bill fell due, no person had become executor of the will of the said A. B., or administrator of his estate or effects.
4. The said bill was duly presented for payment at the last place of abode of the said A. B., but the same has not been paid.
5. The defendant had due notice of the premises, but he did not pay the said bill.
The plaintiff claims £
Payee against drawer where presentment for pay. ment dispensed with.
Payee against Drawer for Default of Payment, where the
Defendant dispensed with Presentment for Payment. 1. The defendant, on the 1st of May, 1876, drew a bill of exchange upon one C. D. for £1000 payable to the plaintiff one month after date.
2. When the said bill became due, the defendant requested
He then. Where
the plaintiff not to present the said bill to the said C. D. for Payee payment, and discharged the plaintiff from so presenting it. against
3. The said C. D. has not paid the said bill, whereof the de- where prefendant had notice.
sentment 4. The said bill still remains unpaid.
ment disThe plaintiff claims :-
with. Drawer, where Bill is made payable to his Order, against
Acceptor. [The plaintiff has proceeded here against the defendant by Drawer means of a specially indorsed writ under Order III. r. 6, acceptor. and on the writ the bill of exchange is set out. delivers to the defendant a notice in lieu of statement of claim plaintiff under Order XXI. r. 4, to the effect that his claim is that ceeded by which appears by the indorsement on the writ, and fixing a a specially
endorsed place of trial.]
writ. Statement of Defence. 1. The defendant says that he accepted the bill of exchange Defence of
want of mentioned in the indorsement of the writ in this action for the
consideraprice of goods sold, and to be delivered by the plaintiff to the tion. defendant, and that there was no other consideration for the acceptance or payment of the said bill of exchange by the defendant.
2. That the defendant was always ready and willing to accept delivery of the said goods pursuant to his contract in that behalf, but the plaintiff did not deliver or cause to be delivered the said goods to the defendant pursuant to his contract in that behalf, and that all consideration for the acceptance or payment of the said bill by the defendant wholly failed through the default of the plaintiff and his agents in not delivering or causing to be delivered the said goods to the defendant pursuant to the said contract.
Holder of a Bill against the Acceptor, the Drawer and Indorsers Holder
against for Default in Payment (a).
drawer, 1. The defendant A. B., on the 20th of June, 1877, drew
acceptor and indorsers.
(a) A statement of claim of this kind is specially allowed by the new practice. Order XVI. r. 5 says : “ The plaintiff may, at his option, join