10 Mass. 1 | Mass. | 1813
The bills in this case, having failed of acceptance, were accepted and afterwards paid by a friend of the plaintiff, who had endorsed them, for his honor. This payment did not vary the duties of the holder. He was still bound to cause them to be protested for non-acceptance, and, at their maturity, to cause them to be duly protested for non-payment by the drawee. He was also obliged to give the same notice to the antecedent parties to the bills, as if they had not been taken up.
In the case at bar, there was no legal evidence of a protest for non-acceptance. The holder is not obliged to forward such protest at the time;
Besides the want of regular evidence of a protest for non-acceptance, there was, .in this case, an inexcusable delay of forwarding the protest for non-acceptance; nor is the delay satisfactorily ac
ADDITIONAL NOTE.
I See Grosvenor vs. Stone, 8 Pick. 79. — Konig vs. Bayard, 1 Pet. 262.
The acceptor of a bill for the honor of the drawer, cannot maintain an action thereon against him, without proof of presentment to the drawee, non-acceptance or nonpayment by him, and notice thereof to the drawer. — Baring vs. Clark, 3 9 Pick. 220.
A foreign bill was drawn on C. Co., at Liverpool, payable to A, in London. C. ^ Co. having refused to accept it, it was accepted in London, by B, for the honor oí the payee, if regularly protested, and refused when due. Held, in an action against B, the plaintiff must prove presentment for payment to C. Co. at Liverpool, and refusal by them, and a protest there; and therefore the bill was properly presented there for payment on the day it fell due. — Mitchell vs. Baring, 10 B. fy C. 4. — F. H.]
[In Blakely vs. Grant, (6 Mass. Rep. 388,) Parsons, C. J., said, “ As to notice of • the protest of a foreign bill, a copy of the protest should be given or offered to the drawer, or due diligence used to furnish him with this notice, before he can be charged.” Bailey says, (c. 7. sec. 2,) “ To give -this notice, in the case of a foreign bill, effect, it is necessary that a minute of the non-acceptance, or non-payment, and a solemn declaration on the part of the holder, against any loss to be sustained there by, (which minute and declaration is called a protest,) should be made out by a notary public; or, if there be no such notary in or near the place where the bill is payable, by an inhabitant, in the presence of two witnesses; and,, in some cases, a copy, or some other memorial of it, should accompany the notire. But if a man draw or endorse a bill on this country abroad, and afterwards come here, a notice to him here-need not be accompanied with a protest or memorial of it. At least, he cannot object to such notice, unless he applied for the protest on receiving the notice.” He cites Rogers vs. Stevens, 2 T. R. 713. — Gale vs. Walsh, 5 T. R. 239. — Brough vs Parkins, Ld. Raym. 993. — 6 Mod. 80. — Salk. 131.— Orr vs. Maginnis 7 East, 359.— Cromwell vs. Hynson, 2 Esp. N. P. C. 511. — Robins vs. Gibson, 334. — 1 Maule & Selw
[A protest for non-payment is wholly unnecessary, if a protest for iion-accept anee has been made. — De la Torre vs. Barclay, 1 Stark. N. P. 7. — Price vs. Dardell, Chitty on Bills, 233, n.—Miller vs. Hockley, 5 Johns. Rep. 375. — Forster vs. Jut dison, 16 East, 105. — Ed.]
[This seems hardly consistent with what precedes. If the holder is not obliged to forward the protest at-the time of giving notice of the fact, what has the delay in forwarding it to do with the case, if it be sent before the suit? Or when required ? If the expressions “ protest for non-acceptance ” were used by mistake for u notice of non-payment,” which, by recurring to the direction of the judge at the trial, would seem probable, then the opinion of the Court, so far as their judgment depended upon this circumstance, was clearly erroneous, for we have seen that in case of a protest and notice of non-acceptance, a protest and notice for non-payment is wholly unnecessary.— Chitty on Bills, 6th ed. p. 309. — Ed.]