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upon the ground of his ignorance of law when he made the promise. Stevens v. Lynch, 12 East, 38. 2 Campb. 332. S. C.

Though an acknowledgment by the drawer of a bill, that the money remains due is construed into a promise to pay it, so as to dispense with notice, yet it has been held that such an acknowledgment by an indorser is not sufficient, but that it requires an express promise. The indorser of a bill, which had been dishonored, of which no notice had been given, in reply to a request to make provision for it, returned the following answer : "I cannot think of remitting till I receive the draft; therefore, if you think proper, you may return it to T. & Co. if you think me unsafe." A verdict being found for the plaintiff, with liberty to move to enter a nonsuit, the court made the rule for entering a nonsuit absolute. Per Mansfield C.J. "I am extremely glad I saved this point, for my mind fluctuated upon it very much at the trial, but upon a further consideration, I do not find any case in which an indorser, after having been discharged by the laches of the holder, has been held liable upon his indorsement, except where an express promise to pay the bill has been proved; now the letter of the defendant contains no such express promise, but in a great measure shews, that the defendant was writing under a supposition that he was liable, and that the prior indorsers would pay the bill; for he desires that it may be sent to Trevor & Co., who were the indorsers next in priority; but when he afterwards finds that the case is otherwise, and that the other indorsers would not pay, and that he also was discharged, he refuses, as it was still open for him to do. I cannot consider this letter as conveying an absolute promise to pay at all events, whether Trevor & Co. did or not; and I think in this case, it would be too much to fix the defendant by any such implied promise. In most of the cases where the defendants have been held liable, they have either made an express promise to pay, or a promise when they had a full knowledge at the time that they were discharged, or where there was a real debt binding in conscience due from them; but none of the cases have gone to the extent of making this defendant liable, and to hold that he was in this instance, would be extending them beyond their fair import." Borrodaile v. Lowe, 4 Taunt. 93.

Excused, in case the drawer has no effects in the hands of the drawee.] If the drawer of a bill had not at the time of drawing, or at any time between that period and the time of the bill becoming due, any effects in the hands of the drawee, or any effects consigned to or on their way to him, or any reasonable ground to expect that he shall have effects in his hands when the bill becomes due, the drawer cannot insist upon the want of notice of the dishonor of the bill as a defence. This

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point was first determined in the case of Bickerdike v. Bollman, 1 T. R. 405., in which it was held, that the drawer never having had any effects in the hands of the drawee, was not entitled to notice of dishonor. Per Ashhurst J. As to the general rule, it has never been disputed that the want of notice to the drawer, after the dishonor of a bill, is tantamount to payment by him; but that rule is not without exceptions, and particularly in the case mentioned by the plaintiff's counsel, that notice is not necessary to be given, where the drawer has no effects in the hands of the drawee, for it is a fraud in itself, and if that can be proved, the notice may be dispensed with." Per Buller J. "If it can be proved on the part of the plaintiff, that from the time the bill was drawn, till the time it be. came due, the drawee never had any effects of the drawer in his hands, I think notice to the drawer is not necessary; for he must know whether he had effects in the hands of the drawee or not, and if he had none, he had no right to draw upon him and to expect payment from him, nor can he be injured by the non-payment of the bill, or the want of notice that it has been dishonored." Although the authority of the above decision has been often recognised, yet the policy and convenience of the rule there established have been frequently doubted. See Rucker v. Hiller, 16 East, 44. Legge v. Thorpe, 12 East, 175. Clegg v. Cotton, 3 B. & P. 241. Orr v. Maginnis, 7 East, 361. Thackray v. Blackett, 3 Campb. 165. Cory v. Scott, 3 B. & A. 622. Claridge v. Dalton, 4 M. & S. 231. Ex parte Heath, 2 Ves. & B. 240. (See also Note 51.) The rule that want of assets excuses notice to the drawer, extends also to foreign bills, of which it is not necessary under such circumstances to prove a protest. Rogers v. Stevens, 2 T. R. 713. Legge v. Thorpe, 12 East, 121. 3 Campb. 310. S. C.

Cotton in America, the agent of Cullen, drew a bill upon Cullen, and apprehending it might not be paid, lodged money in the hands of two several indorsers to answer the bill, in case it should be returned, and the indorsers gave an undertaking to restore the money, upon being exonerated from the payment of the bill. The bill was dishonored and no notice given to the drawer, and the court of C. P. held him to be discharged. They said that in this case there was no fraud in the drawer, which they considered the principle on which Bickerdike v. Bollman (vide supra) was decided. Clegg v. Cotton, 3 B. & P. 240.

Not excused, where the drawer has effects in the hands of the drawee at the time of drawing, or at any time before presentment.] Want of notice will not be excused if the drawer had effects in the hands of the drawee at the time of the bill being drawn, though not at the time of presentment for acceptance or payment. Thus, where at the time of a bill drawn, the drawer had effects (to what amount did not appear) in the hands

of the drawees, but in May, 1800, his whole balance, amounting then to 116., (the bill being for 172l. 18s. 1d.) was paid to him by them, they having no notice of the bill, and in July, when the bill was presented for acceptance, and up to the 22d October, when it was presented for payment and refused, the drawees had no effects of the drawer in their hands, it was held that want of notice to the drawer was not excused. Per Lord Ellenborough, "If the drawer have effects, at the time of the bill drawn, 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 dishonored." Orr . Maginnis, 7 East, 358. So, want of notice will not be excused, if the drawer had effects in the hands of the drawee, at any time between the the drawing and the becoming due of the bill. In an action against the drawer of a bill, of the dishonor of which no notice had been given, it appeared that when the bill was drawn, the drawees had no effects of the drawer in their hands, but that before the bill became due, he paid a sum of 4001. on their account. Per Lord Ellenborough, "I think the drawer has a right to notice of the dishonor of a bill, if he has effects in the hands of the acceptor, at any time before it becomes due. In that case he may reasonably expect, that the bill will be regularly paid, and he may be prejudiced by receiving no notice that it is dishonored. I am aware that the inquiry has generally been as to the state of accounts between the drawer and drawee, when the bill was drawn or accepted, but I conceive, the whole period must be looked to, from the drawing of the bill till it becomes due, and that notice is requisite, if the drawer has effects in the hands of the drawee, at any time during that interval." Hammond v. Dufresne, 3 Campb. 145.

Not excused, where the drawer has effects in the hands of the drawee, though to less amount than the bill.] It is not necessary in order to intitle the drawer to notice of dishonor, that the amount of the effects in the hands of the drawee should equal the amount of the bill. Thus, where the defendant drew two bills of upwards of 1800l. each, on P. & Co., and at the time of drawing had no effects in the hands of the drawees, but before the bills became due, contracted engagements on account of P. & Co. to the amount of about 1000l., Lord Ellenborough held, that the drawer was intitled to notice. "The excuse of want of effects, I think, (said his Lordship,) is equally unavailing as to both bills. I cannot make any distinction between the two. If there was an open account between the parties, and the acceptors were indebted in any sum to the drawer be

fore the bills became due, I cannot say that he must necessarily have been aware before hand, that either of them would be dishonored." Thackray v. Blackett, 3 Campb. 164. But, in a later case, the court of King's Bench seems to have been of opinion, that the want of notice is no defence, where the defendant had not, at the time the bill became due, sufficient effects; but the judgment in that case may be supported on another ground. Smith v. Thatcher, 4 B. & A.

200.

Not excused, where, though there are no actual effects, there is a reasonable expectation of the bill being honored.] Many cases have arisen, as to what shall be accounted equivalent to having effects in the hands of the drawee. "I do not mean to

say,

," observed Lord Ellenborough, in Legge v. Thorpe, 12 East, 175., "that actual value in the hands of the drawee, at the time of drawing, is essentially necessary to intitle the drawer to notice in case of dishonor, for circumstances may exist, which would give a drawer good ground to consider that he had a right to draw a bill upon his correspondent, as where he had consigned effects to him to answer the bill, though they may not have come to hand at the time the bill was presented for acceptance." But when the drawer, at the request of the drawee, an executor, had employed the payee to do some work on the estate of the testator, and drew the bill for the amount of the work, which the drawee refused to accept, alleging that he had no assets, it was held, that the drawer was not intitled to notice, for he had no effects in the drawee's hands, nor had taken any means to furnish him with any. Legge v. Thorpe, 12 East, 171. 2 Campb. 310. S. C. In an action against the drawer of a bill, where no notice had been given of dishonor, it appeared, that the bill had been drawn against a cargo of indigo and hides shipped by the drawer; that the cargo was, at that time, in the hands of a broker for sale; that one Whitby was to pay over the proceeds to answer the bill, that before the bill had been presented for payment, the hides had been sold and a loss had arisen on them, but that the indigo was not sold; Lord Ellenborough ruled, that the bill having been drawn on expected funds, it was necessary to prove notice of its dishonor. Robins v. Gibson, 3 Campb. 334.

The general rule laid down in Bickerdike v. Bollman, is thus qualified by Lord Ellenborough in Brown v. Maffey, 15 East, 221. "That exception must be taken with some restrictions, as where a drawer, though he might not have effects at the time of the drawing of the bill in the drawee's hands, has a running account with him, and there is a fluctuating balance between them, and the drawer has reasonable ground to expect he shall have effects in the drawee's hands when the bill becomes due; in such cases I have always

held the drawer to be entitled to notice, because he draws the bill upon a reasonable presumption that it will be honored." In an action against the drawer of a bill to whom no notice of dishonor had been given, it appeared that the defendant was sent out to Petersburgh to purchase goods, which were to be consigned to the drawees in London. He accordingly consigned several cargoes to them, and drew bills upon them to a large amount. They accepted, and paid bills so drawn, for more than the value of all the consignments. The cargo, in respect of which the bill in question had been drawn, had been detained in Russia for want of a licence, and was so materially damaged as hardly to be sufficient to pay the freight when it arrived. The defendant had considerably overdrawn his account with the drawees, and from the time this bill was drawn till it became due, they had no effects of his in their hands. Lord Ellenborough was of opinion that the drawer was discharged by want of notice. "If," said his Lordship, "there be a reasonable expectation that a bill of exchange will be honored upon the strength of a consignment, I am of opinion the drawer is entitled to notice of its dishonor, though it turns out that the drawee never has any effects in his hands to meet the payment of it. This cannot be considered visionary paper, with respect to which the custom of merchants need not be observed. The object of notice is not merely to enable the drawer to withdraw his effects from the hands of the drawee, but to provide for payment of the bill thus suddenly cast upon himself, and to make prompt arrangements suited to this unexpected emergency. Where the drawer has solid reason to believe that the bill will be honored, he is necessarily damnified, and therefore, he is discharged by the laches of the holder." Rucker v. Hiller, 3 Campb. 217. The plaintiff in the above case being nonsuited, the court of K. B. refused to set the nonsuit aside. 16 East, 43. If the drawer has effects in the hands of the drawee, he is entitled to notice, although he is indebted to the drawee in a larger amount. Thus, in an action against the drawer of a bill of 250l. where the drawees stated, that when the bill was presented, they had produce in their hands belonging to the drawer to the amount of about 1500l. but that he owed them 10,000l. and that they had appropriated the effects in their hands to go in satisfaction of this debt, Lord Ellenborough held notice necessary, and said " 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 notice of its dishonor, 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 to him, and that his bill has been dishonored? It is said here, that the effects in the hands of the drawees were all

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