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WALWYN

1-218.

1797. notice, or in a cafe where no notice is required, stands precisely in

the same situation as the acceptor; thirdly, that the same principle

might be applied to the objection of the Plaintiffs having received St. Quintin. part-payment of the note from the indorfer, for that in Johnson

v. Keyfon, Bull. N. P. 271. ed. 3. it was held, that the receipt of part of the money from the acceptor or indorfer without notice to the drawer discharges him, but that with notice it does not ; that here, therefore, where the drawer was entitled to no notice, a receipt of part-payment from the indorser would not discharge him.

Cur. adv. vult. The opinion of the Court was this day delivered by 12 Eaf, 174.

EYRE Ch.J. In this case we did very little more at nih prius than establish the matter of fact upon which the points of law were to arise. Many have arisen. This being an action againft the drawer, the first point made relates to the want of notice being given to him of the acceptor's refusal to pay. The Plaintiffs infift that it was not necessary to give this notice for two reasons: firti, becaufe the drawer had no effects in the hands of the acceptor; and secondly, because before the bill became due he had left his place of abode, and the holder of the bill did not know where to find him. If the firft reason is sufficient we need not go further. The jury have found that the acceptor had effects in account with the payee. But the true fact is, that this was the acceptor's bill, and not the drawer's. In a regular bill transaction the drawing by A. payable to B., or payable to A.'s own order, and indorfing the bill to B., is a mode by which the drawer pays a sum of money to his payee or indorsee through an acceptor. The transaction in this case, as far as it had pretensions to be deemed a real transaction, was a mode by which the acceptor advanced a sum of money to the payee,

and the drawer was a mere inftrument of the acceptor. This is reversing the order of things. As far as concerns the drawer, it is what it has been called, a mere accommodation; and all consideration of effects of the drawer in the hands of the acceptor may be laid afide. It seems clear, that notice can be of no use to him; his situation being this, that if the acceptor does not pay he muft, and may then and not till then refort to the acceptor to be re-imbursed: notice therefore can amount to nothing, for his fituation cannot be changed. If there be any case in which notice should be dispensed with, furely it is this. Perhaps, indeed, it ought never to be dispensed with, fince it is a part of the fame custom of merchants which creates the duty; especially

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as the grounds for dispensing with it are such as cannot influence

1797 the conduct of the holder of the bill at the time when he is to determine whether he will or will not give notice; for ninetynine times in a hundred he cannot know whether the drawer have St. Quintin. or have not effects in the hands of the acceptor, or for whose accommodation the bill was drawn. It has, however, been resolved in many cases where the drawer has had no effects in the hands of the acceptor, that notice might be dispensed with. But it may be proper to caution bill-holders not to rely on it as a general rule, that if the drawer has no effects in the acceptor's hands notice is not necessary. The cases of acceptances on the faith of confignments from the drawer not come to hand, and the case of acceptances on the ground of fair mercantile agreements, may be stated as exceptions; and there may possibly be many others. . Where the drawer has no effects, and has no fair pretence for drawing, or where he draws without having effects intended to be applied in payment, and only for the purpose of raising money by discount for himself, and à fortiori for the acceptor, which is this case, it is fairly deducible from the cases which have been resolved, that notice need not be given. And this makes it unnecessary to inquire whether the drawer's absenting himself from his place of abode before the bill became due, will excuse the want of notice. The second point necessary to be confidered is, whether the holder of the bill has discharged the drawer by forbearing to proceed against the acceptor on the application of Mr. Annesley. Had this forbearance taken place before noting and protesting for non-payment, so that the bill had not been demanded when due, it is clear that the drawer would have been discharged: it would have been giving a new credit to the acceptor; and the holder not having pursued the custom, this would have been deemed, as between the holder and the drawer, laches sufficient to discharge the drawer. But after proteft for non-payment, and notice to the drawer, or what has been held equivalent to notice, a right to fue the drawer has attached, and the holder is not bound to sue the acceptor: he may therefore forbear to fue him. Is then the answer to Mr. Annesley's letter more than mere forbearance? If the holder enters into a new agreement with the acceptor for securing the payment of the bill, that may satisfy the bill as between him and the drawer, and may be considered as a new credit to the acceptor. There was in this case a treaty for such security, but it went off. Proposals for a security bind no one unless they can be made use of to impute laches; and after the protest no laches can be imputed.

The

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1797 The last point is, that the holder having accepted 40l. 5s. from

the payee on account of this bill, the drawer is thereby dif.

charged. I do not recollect that this point was urged at Nik St. Quintin. Prius. It is supposed to be supported by the authority of very

great names. In Tassel & Lee v. Lewis, i Ld. Raym. 743. the custom of merchants was stated by merchants in evidence as was then the course; and it was there agreed by Holt Ch. J. that if the indorfee of a bill accept but two-pence from the acceptor, he can never after resort to the drawer. Kellock v. Robinfon, 2 Str. 745. was an action brought by the indorsee of a promissory note against the indorser : it appeared, that the Plaintiff after the ipdorsement had received part of the drawer of the note, and it was held to be a taking upon himself to give the whole credit to the drawer, and absolutely to discharge the indorfer; fo the Plaintiff was nonfuited. The rule in both cafes is laid down in the most general terms without qualification or exception, and down to that time must have been considered as settled law. On the other hand, there is in Mr. Juftice Buller's Introduction to the Law relative to the Trials of Nij Prius (a), a note of the cafe of Johnson v. Kenyon, in this Court, Hil. 5 Geo. 3. which is probably Lord Bathurst's own note. In that note the rule is ftated with this exception; “ unless he give timely notice to the drawer that the bill is not paid : For,” it is said, “where a man takes part of the money only, and does not apprize the drawer that the whole is not paid, he gives a new credit for the remainder. But where timely notice is given that the bill is not duly paid, the receiving part of the money from the acceptor or indorfer will not discharge the drawer or other indorfers : for it is for their advantage that as much should be received from the others as may be.” I will not say that this is not a reafonable qualification of the rule: but it requires some further investigation; and the rather as the want of notice recurs, and furnishes the appear ance of an objection to the application of that cafe to the cafe now in judgment. That case supposes timely notice to have been given to the drawer that the bill is not paid. In our cale we have got to the length of resolving that notice is difpented with for one purpose, viz. to make the drawer answerable. Will it follow, that in respect of the consequence of receiving part of the money from the acceptor or indorfer, according to the language of the cafe in Mr. Justice Buller's book, the notice shall also be dispensed with ? This would be carrying that case a ftep further than the case itself goes; when, perhaps () P.271. ed. 3.

the

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the reason why notice is necessary in the latter instance is not the 1797. fame as in the former. Notice is required in the one to make the drawer responsible: it feems necessary in the other to prevent his being discharged from his responsibility. The effect of certain St. Quintin. circumstances may be, that he may become responsible without notice: but being responsible, is not his responsibility to remain, or be discharged in the same manner as the responsibility of any other drawer who is made responsible by having notice? Giving a new credit to the acceptor would undoubtedly discharge a drawer made responsible without notice. Then is not the receiving a part of the money considered as giving a new credit? The note in the Introduction tothe Law of Nih Prius (a) says, the indorfer is difcharged because “the indorfee has made his election to have his money from the “ drawer.” This is not very intelligible. In Kellock v. Robinson (6), the reason given is, that the holder takes upon himself to give the whole credit to the drawer. In one refpect the two notes in Lord Raymond and Strange are imperfect; namely, that they do not state whether the money was received before, or at the time when the bill became payable, or whether afterproteft, and perhaps notice alfo, when the rights of the holder had attached. In the latter case possibly a payment in part might be received from one without prejudice to the right to proceed against another for what remains unpaid, upon the ground stated by Mr.J. Buller, that it is for the interest of all who are liable, that as much should be received as can be got. And doubtless receiving part is a different thing from taking a security for the whole. The party gives no credit in respect of what he actually receives, and as to what remains unpaid, he is in the same situation as he was in before. The fact sworn to by Thomas the indorfer, in oppofition to the Plaintiff's attorney, if it had been believed, would have saved the trouble of difcuffing this part of the cafe. He swore that it was agreed, that in confideration of 401. 55. to be paid, the holders would proceed no further on the bill. This must have discharged the drawer. But the attorney swore, and the jury found, that the money was received generally on account of the bill. We come now to a very material consideration. Of whom was the money received? The answer is, of the payee; that is, it was paid by an indorfer to his indorfee, to whom he was responsible. Butone indorfer may pay the whole money due upon a bill to another indorfer without fatisfying the bill as between him

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(a) P. 273. where Kellock v. Robinson is referred to. VOL. I.

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(6) As reported in 2 Str.745,

and

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1797. and the acceptor and the drawer. It is every day's practice for a

difhonoured bill to be thrown back upon the first indorfer; eachin

dorser taking back from his immediate indorser what he has paid St. Quintin, on account of the bill, and at the same time delivering up the bill

to him, and the latter again throwing it back on his immediate indorfer till it at lait arrives at the first indorser. They may arrange the matter among themselves; and any one indorfer may sue the acceptor or drawer instead of any of the preceding indorsers, striking out all the names upon the bill below his own. According to the very perplexed report of the case of Johnson v. Kenyon, in 2 Wilf. 262. (a), the first indorsee of a dishonoured bill for 1000l. after receiving 232l. from the payee who indorsed it to him, and getting back the bill from Baldwyn to whom he had indorfed it for value, and to whom he returned the money, recovered the whole 1000l. against the drawer; and on a motion for a new trial the verdict was confirmed : and very rightly. It was nothing to the drawer how the indorsers arranged the bufiness among themselves. The point of notice supposed to be an ingredient in the case in Mr. Justice Buller's note did not arise. It was assumed that the drawer was liable. The question, as far as I can collect it, was, Whether the indorsee should recover the whole 1000l. against the drawer, having received 232l. upon the bill from the first indorfer? which is exactly our case: and it was held that he should; that he might recover for the firft indorfer the 2321. which the latter had paid, and that the Defendant could have no reason to complain, for he only paid what he ought to pay. If the acceptor had paid any thing on account of the bill, it had been otherwise: so much of the bill would then have been fatisfied, and at furtheft the residue only could be recovered against the drawer (6). According to thetwonotes in Ld. Raymond and Strange, nothing could have been recovered in that case against the drawer. But they are very short notes; and possibly the rule may have been meant to be laid down only in respect of payment by acceptors when the bill is demanded. But whether that be fo or not, they do not apply to this case; for they both speak of the holder receiving a part-payment of the acceptor of a bill, or of the drawer of a promiffory note who is an acceptor : whereas the

(a) In Bacon v. Scarles, 1 H BI. yo. (6) So vice verja, if part be received Wilson J. observes, that the case of Yohnson from the drawer, the residue only can be v. Kenyon is inaccurately reported in 2 Wilf. recovered against the acceptor. Pierfoss. and that he was difpoled to think that the Dunlop, Corp. 571, and Bacon F. Scaries, Chief Juilice never said what he is there I H. BI. 88. reported to have faid.

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