pay. CHAPTER excused. Proof of a protest of a foreign bill is excused, if the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honoured (g); or if the when protest drawer has admitted his liability, by promising to "By the drawer's promise to pay," observes Lord Ellenborough, "he admits the existence of every thing which is necessary to render him liable. When called upon for payment of the bill, he ought to have objected that there was no protest. Instead of that, he promises to pay it. I must, therefore, presume he had due notice, and that a protest was regularly drawn up by a notary" (h). And it is said, that where the drawer adds a request or direction, that in the event of the bill not being honoured by the drawee, it shall be returned without protest, by writing the words "retour sans protêt," or "sans frais," a protest as against the drawer, and perhaps as against the indorsers (i), is unnecessary. Inland bills may be protested for non-payment under the Protest of inland 9 & 10 Will. 3, c. 17, and for non-acceptance under the bills and notes. 3 & 4 Anne, c. 9. But it has been held, that a protest is unnecessary, except to enable the holder to recover interest (k); and subsequent and uniform practice, confirmed by a late decision (1), has settled that it is superfluous even for this purpose. Foreign bills are very frequently protested, both for nonacceptance and non-payment; but a protest is hardly ever made for non-acceptance of an inland bill, though it is sometimes protested for non-payment (m). It is conceived, that a protest of an inland bill is unknown to the common law, and must, therefore, derive its efficacy from the above enactments; from which it will follow, that it is applicable only to such instruments as are therein described, and that the steps therein required must be taken. As the 3 & 4 Anne, c. 9, puts promissory notes on the same footing as bills, it should seem to authorize a protest and such protest is accordingly sometimes made (n). It would, therefore, be of no practical benefit further to discuss the provisions of these (g) Legge v. Thorpe, 12 East, 171; 2 Camp. 310, S. C. (h) Gibbon v. Coggon, 2 Camp. 188; Patterson v. Beecher, 6 Moore, 319; Greenway v. Hindley, 4 Camp. 52. (i) i Pardessus, 540; Chitty, 10th ed. 114. : (k) Harris v. Bensom, 2 Stra. (1) Windle v. Andrews, 2 B. 98. (n) Kyd, 97. CHAPTER Protest of lost bill. Pleading. Evidence. Effect of a promise to pay. too loosely drawn and obscure statutes, with respect to the protest of inland bills. The loss of a bill is no excuse for the absence of protest (o). In an action against the drawer of a foreign bill, protest must be averred (p) as well as proved; and it has been held that, if protest of an inland bill be set forth in pleading, it must be proved (q). But this decision proceeded on the ground that an allegation of protest of an inland bill involved a consequential claim for interest and costs; whereas it has been since decided, that such a claim may be made without protest (r). In an action on a foreign bill, presented abroad, the dishonour of the bill will be proved by producing the protest, purporting to be attested by a notary public: or, if there is not any notary near the place, purporting to have been made by an inhabitant, in the presence of two witnesses (s). But a protest made in England is not evidence of the presentment here (t). A promise to pay is good primâ facie evidence of protest (u), and of notice thereof (x). CHAPTER ΧΧ. acceptance. WHEN acceptance is refused, and the bill is protested for non-acceptance, or where it is protested for better security, any person may accept it, supra protest (b), for the honour Mode of such of the drawer, or of any one of the indorsers. The method of accepting, supra protest, is said to be as follows, viz. the acceptor, supra protest, must personally appear before a notary public, with witnesses, and declare that he accepts such protested bill in honour of the drawer or indorser, as the case may be, and that he will satisfy the same at the appointed time; and then he must subscribe the bill with his own hand, thus-"Accepted, supra protest, in honour of A. B.," &c. (c); or, as it is more usual, "Accepts, S. P." And a general acceptance, supra protest, which does not (a) Called in French, "Acceptation par Intervention," Code de Commerce, 126. (b) I am not aware of any authority to show that there may be an acceptance for honour without a protest, and the statute 6 & 7 Will. 4, c. 58, seems to assume that bills accepted for honour are always protested; see Vandewall v. Tyrrell, M. & M.87; Geralopulo v. Wieler, 10 C. B. 690; Bayley, 6th ed. 181; Noguier, Lettres de Change, ss. 584-591. Unless, indeed, there be a direction to another person in case of need. Chitty, 165, 236. Where the direction, in case of need, is appended, it is said to be necessary to present a foreign bill to that other person. But then he is more properly an (c) Beawes, pl. 38. CHAPTER ΧΧ. Who may so accept. Conduct which holder should pursue. express for whose honour it is made, is considered as made for the honour of the drawer (d). Any person may accept a bill supra protest: and the drawee himself, though he may refuse to accept the bill generally, may yet accept it supra protest, for the honour of the drawer or of an indorser (e). And though we have seen that, after one general acceptance, there cannot be another acceptance (ƒ), yet, when a bill has been accepted, supra protest, for the honour of one party, it may, by another individual, be accepted, supra protest, for the honour of another (g). In no one case is the holder obliged to take an acceptance for honour (h). The holder of a dishonoured bill, who is offered an acceptance for the honour of some one of the preceding parties to the bill, should first cause the bill to be protested, and then to be accepted, supra protest, in the manner above described. At maturity he should again present it to the drawee for payment, who may, in the meantime, have been put in funds by the drawer for that purpose. If payment by the drawee be refused, the bill should be protested a second time for non-payment (i), and then presented for payment to the acceptor for honour (k). Doubts having arisen as to the day when the bill should be again presented to the acceptor for honour, or referee, in case of need, for payment, the 6 & 7 Will. 4, c. 58, enacts, that it shall not be necessary to present, or in case the acceptor for honour or referee live at a distance, to forward for presentment, till the day following that on which the bill becomes due (7). B. & C. 477; 1 M. & R. 394, S. C. (1) According to the French law the acceptor for honour is bound to give notice to the person for whose honour he accepts. "L'IN TERVENANT EST TENU DE NOTIFIER SANS DELAI SON INTERVENTION A CELUI POUR QUI IL EST INTERVENU," Code de Commerce, 127:-"Parce que autrement," says Rogron, "le tireur, ignorant ce qui est arrivé, pourrait envoyer la provision au tiré ; l'observation de cette disposition donne lieu à des dommages-intérêts contre l'accepteur par intervention si le tireur en éprouve quelque préjudice," But according to Beawes, pl. 47, any one accepting a bill, supra In a case which attracted much attention, it was proved, that where a foreign bill, drawn upon a merchant residing in Liverpool, payable in London, is refused acceptance, the usage is to protest it for non-payment in London. The bill is put into the hands of a notary, and he formerly used to make protest at the Royal Exchange, but that custom is obsolete: the notary now is merely desired by the holder to seek payment of the bill, and on a declaration by the holder that the drawee has not remitted any funds, or sent to say where the bills will be paid, the notary at once marks it as protested for non-payment. The Court (with the exception perhaps of Mr. J. Bayley) seemed to think this might, if the bill were payable in London, be, in ordinary cases, sufficient. But they were all agreed that it would not have been sufficient in the principal case to charge the acceptor, supra potest, because the acceptance was in these words-"If regularly protested and paid when due;" and they said the drawees could not be said to refuse, unless they were asked. The Court also appear to have been clear, that though there might be cases in which an exhibition of the bill to a notary in London is sufficient, yet that in all cases a bill may be sent to the drawee, and indeed that such is the more regular course (m). By the 2 & 3 Will. 4, c. 98, it is enacted, that all bills made payable by the drawee in any place other than his residence, are, on non-acceptance, to be without further presentment protested for non-payment in the place where they are made payable. CHAPTER protest. XX. The undertaking of the acceptor, supra protest, is not an Liability of absolute engagement to pay at all events, but only a acceptor supra collateral conditional engagement to pay, if the drawee do not. "It is," says Lord Ellenborough, "an undertaking to pay, if the original drawee, upon a presentment to him for payment, should persist in dishonouring the bill, and such dishonour by him be notified, by protest, to the person who has accepted for honour" (n). The learned Judge proceeds protest, for the honour of the drawers or indorsers, though without their order or knowledge, has his remedy against the person for whose honour he accepted. It seems, that, according to the Scotch law, a holder may take an acceptance supra protest, and yet sue the drawer or indorsers, Thompson, 489. Such is certainly the French law: "Le porteur de la lettre de change conserve tous ses droits (m) Mitchell v. Baring, 10 B. (n) Hoare v. Cazenove, 16 East, |