instrument is of no value for want of a stamp (a), or when the bill is not negotiable (b).

FOREIGN LAWS.

summons of

case of non

for the sum

France. The exercise of the rights of the holder against the Protest and drawer and indorsers depends upon the regularity of the protest. the parties The holder may act either against the drawer and each of the individually in indorsers or collectively against them. If he goes against them payment. individually, whether against his own indorser or against any other he might prefer, he must give notice to him of the protest, and if he does not pay cause him to be summoned to court within fifteen days from the date of the protest. If the party Time allowed resides more than five myriamètres distant from the place mons. where the bill was payable, the time is extended by one day for every 2 myriamètres exceeding the five myriamètres. If the excess is less than that, the additional time would not be granted. If the distance is more than five myriamètres, and yet less than ten, the time should be calculated as if there were really ten myriamètres. The only point is, that the summons must be made within the fortnight. If the last day is a blank day, no further delay is granted. If the bill was payable in Corsica, in the island of Elba or Capraja, in England, or in the neighbouring States of France, the time within which the drawer and indorsers may be summoned is two months. It is four months for bills which are payable in other States of Europe; six months for those which are payable in the East or on the Northern coasts of Africa; one year for those which are payable on the Western Coasts of Africa, to and including the Cape of Good Hope, and in the West Indies; two years for those which are payable in the East Indies. These respective periods of six months, one year, and two years, are double in time of maritime war; but no further delay is granted in consequence of minority or other causes. Once the holder has protested the bill, and summoned the parties within the prescribed time, whatever may render the drawer insolvent is at their risk. Should the holder neglect to resort in time against his imme- Effect of delay diate indorser, he cannot act against the drawer, or any of in summoning

the parties liable to the

bill.

To whom it should be sent.

Where.

the previous indorsers, claiming so many fifteen days as each indorser would have had against the preceding party. This time is only granted as regards each party against whom he wishes to go, so that if the holder wishes, for whatever cause, to proceed against the drawer, or against the first indorser, without suing the others, he must go against him within the fortnight from the day after the protest, with the increase of time according to distance. Two things are necessary to be done: the notice and protest, and the summons to court. The time within which the notice of the protest must be given is limited by that of the summons. A copy of the protest must be sent with the notice, so that each party may know all that relates to the pursuit against them. If the holder act against the parties collectively, he has, as regards each party, the time above indicated, so that if one reside within the distance of five myriamètres, and another beyond that distance, each should receive the notice and the summons within the time calculated, according to the distance of his domicile. If the protest has been communicated amicably in due time, and if the party who received this notice promised to pay, asking to avoid any legal steps being taken, he cannot afterwards object to the want of such steps. The non-observance of these formalities constitutes laches, and the holder will lose all his rights of recourse against the parties, except in the following cases. First, where the drawer does not prove that he had funds in the hands of the drawee; inasmuch as the delay or want of protest could not possibly do him any injury, and the loss of rights on that account would be an injustice; and, secondly, where the drawer or indorsers have received sums on account, or have recovered things which constituted part of the fund for the payment of the bill (a).

United States.-The holder must not only show to have made a demand, or due diligence, to get the money from the drawee of the bill or cheque, or from the maker of the note, but he must give reasonable notice of his default to the drawer and indorsers to entitle himself to a suit against them. Notice to one of several partners, or to one of several joint drawers or indorsers, is notice to them all. The notice must be

(a) Pardessus, Droit Commercial, vol. i. p. 523.

sent by the first direct and regular conveyance. This means, by the first mail that goes after the day next to the third day of grace; so that if the third day of grace be on Thursday, and the drawer or indorser reside out of town, the notice may be sent on Thursday, but must be put into the post-office, or mailed, on Friday, so as to be forwarded as soon as possible thereafter; and if the parties live in the same town, the rule is the same, and the notice must be sent by the penny post, or placed in the office on Friday. Reasonable diligence and attention is all that the law exacts, and it is now settled, that each party into whose hands a dishonoured bill may pass shall be allowed one entire day for the purpose of giving notice. If the demand be made on Saturday, it is sufficient to give notice to the drawer or indorser on Monday, and putting the notice by letter into the post-office is sufficient, though the letter should happen to miscarry. Nor is it necessary to send the notice by the public By what mail. The notice may be sent by a private conveyance or special messenger, and it would be a good notice though it should happen to arrive a little behind the mail. Where the parties live in the same town, and within the district of the letter-carrier, it is sufficient to give notice by letter through the post-office. If there be no penny post that goes to the quarter where the drawer lives, the notice must be personal, or by a special messenger sent to the dwelling-house; and it is necessary in that case, that the notice be personally given to the party to be charged, or at his dwelling-house or place of business, and the duty of the holder does not require him to give notice at any other place.

means.

The notice in all cases is good, if left at the dwelling-house of Where. the party, in a way reasonably calculated to bring the knowledge of it home to him; and if the house be shut up by a temporary absence, still the notice may be left there. If the parties live in different towns, the letter must be forwarded to the post-office nearest to the party, though, under certain circumstances, a more distant post-office may do.

The notice must specify that the bill is dishonoured, and the What it design of it is, that the drawer may be enabled to secure his should conclaim against the acceptor, and the indorser against the maker,

but there is no precise form of the notice. It is sufficient that it state the fact of non-payment, and it is not necessary to state

tain.

Who is to give notice.

What will excuse notice.

Protest neces

sary.

expressly, for it is justly implied that the holder looks to the indorser.

The party receiving notice is bound to give notice likewise to those who stand behind him, and to whom he means to resort for indemnity; and if a second indorser, on receiving notice of the dishonour of the bill, should neglect to give the like notice with due diligence, to the first indorser, the latter would not be liable to him. It is not necessary in the case of notice of nonacceptance or non-payment of a bill, that a copy of the bill and protest should accompany the notice. It is sufficient to give notice of the fact.

There are many cases in which notice is not requisite, or the want of it is waived. If the drawee refuses to accept because he has no effects of the drawer on hand, notice to the drawee is not necessary. Notice is requisite if the want of it would produce detriment, as if in case notice had been given and the bill taken up, the drawer would have had his remedy over against some third person; or if it was drawn with a bona fide expectation of assets in the hands of the drawee, as upon the faith of consignments not come to hand, or upon the ground of some fair mercantile agreement. The exception applies only to the drawer, and not to the indorser of a bill drawn without funds. Neither the insolvency of the drawer, or drawee or acceptor, or the fact that the drawer has absconded, does away with the necessity of a demand of payment and notice to the drawer or indorser; nor does knowledge in the indorser, when he indorsed the paper, of the insolvency of the maker of the note or drawee of the bill, do away with the necessity of notice in order to charge him. In case of bankruptcy of the party entitled to notice, the holder is bound to give notice to the assignee. If the notice of nonacceptance or non-payment be not given, or a demand on the maker of a promised note be not made, yet a subsequent promise to pay by the party entitled to notice will amount to a waiver of the want of demand or notice, provided the promise was made clearly and unequivocally and with full knowledge of the fact of a want of due diligence on the part of the holder (a).

Germany.-In order to proceed against the drawer and

(a) Kent's Commentary, vol. iii. p. 133.'

indorser, it is requisite to prove that the bill has been presented for payment, and that the presentation and non-payment are embodied in a protest made in due time. The protest may be made the same day when the bill became due, but cannot be made later than the second working day after it. The request not to protest the bill often inserted by the words "without protest," "without expenses," &c., is considered a dispensation of the protest, though not a dispensation to present the bill in due time. It is with the obligee of the bill to prove that the bill was not presented in due time. Nor does such a request dispense with the obligation to pay the charges of protest. A bill payable at the residence of other parties must be presented for payment at the residence of such parties, and if no other parties are named, it must be presented to the drawee himself, at the place of his residence; and if the payment is not made, the bill must be protested at that place. If the bill is not duly Notice of proprotested at the residence of the parties indicated in the instru- test necessary. ment, the right of recourse is lost not only against the drawer and indorsers, but against the acceptor also. But except in the above case the right against the acceptor will not be lost by the non-presentation of the bill or the want of a protest. The holder of a bill protested for non-payment is bound to give a written notice to his immediate indorser of the non-payment within two days after the protest, and it is sufficient if he can prove to have posted the letter within that time. Every person on whom notice has been served must in the same way notify the protest to the preceding holder within the same time, which is calculated from the day the notice has reached him. The holder who omits to give notice is liable for all the damages which may thereby arise to the other indorsers, and loses his rights against these parties. If the indorser has transferred the bill without indicating any place, the notice must be sent to the one preceding him. The holder or indorser who does not give notice is responsible for the damage or loss suffered, in consequence of the want of notice, to those who have preceded him, or those who have been passed by. He also loses his right to demand from them interest and charges, and can only demand the amount of the bill. To prove that the notice has been sent to the drawer or preceding indorser without delay it is sufficient to produce a certificate of the post office showing that a letter from