#### Robert Lenox *versus*Charlotte Levereti, Administratrix.

When a bill of exchange is protested for non-acceptance, and afterwards taken up and paid, for the honor of a party to the bill, the holder is still bound to the same duties, as to protests and notice, as if the bill had not been paid.

Assumpsit on two bills of exchange, of which *William Levereti,*the defendant’s intestate, was the first endorser.

The action was tried on the general issue, at the last November term in this county, before *Parker,*J., from whose report of the trial the following facts appear: —

. The bills in question were drawn by *Robert Fields,*on the 9th of January, 1809, upon *Frederick Dawson,*of *Mile-End-Road, London,*payable, in sixty, days after sight, to said *William Leverett*or order, and, on the 19th of January aforesaid, sold to the plaintiff in *New York,*through the agency of a Mr. *Willard,*of *Boston,*who transmitted them to the plaintiff, the said *Leverett*having endorsed *10them, and having received five per cent, advance on the face thereof.

On the 27th of the same January, the plaintiff remitted the [ * 2 ] * bills to his correspondents in *London,*who received the same on the 25th of the ensuing March; and on that and the succeeding day, the clerks of the merchants in *London*made diligent search for *Lawson,*the drawee, but were unable to gain any intelligence of him : on the contrary, they ascertained that there had been no such person as *Frederick Lawson*at *Mile-End-Road.*On the 1st of April, the bills were carried to a notary, who *noted*the same for non-acceptance; but there was no evidence that any *protest*for non-acceptance was ever made, except what arises from a letter to the plaintiff from Messrs. *Holford &/■ Gonne,*merchants of *London,*to whom the said bills had been remitted, dated the 5th of April, 1809, stating, among other things, that, in the course of their inquiries, they had called on Messrs. *Thomas Murdock &/■ Co.,*who offered to take up the bills, at their maturity, for the honor of the plaintiff, and had delivered to them the protest in form, &c. This letter was received by the plaintiff on the 9th of June, 1809, and the contents thereof immediately communicated to Mr. *Willard*in *Boston,*and by him to *Leverett,*the endorser. On the 3d of June, 1809, the bills were duly protested for non-payment, and were taken up and paid by said *Murdock 8f Co.*

On the 19th of June, *Murdock &f Co.*wrote the plaintiff that the bills had been protested for non-payment, and that the bills and protest were forwarded ; and upon receipt of this letter, information was immediately communicated to Mr. *Willard,*and by him to *Leverett.*No protest came to hand with said letter; and the only evidence that a protest was forwarded, except what arises from said letter, was contained in the deposition of *John P. Glen,*clerk to" Messrs. *Murdock Sf Co.,*stating that it appeared by their letter-book, and was verily believed by the witness, that on the said 19th of June, a letter was written by them to the plaintiff, enclosing the said bills, and regular protests, and advising that the said bills had been paid by them under protest, for the honor of the plaintiff; and that the said letter was sent to the general post-office in *London,*[ * 3 ] in duplicate, * one to be forwarded by the packet, and the other by a private ship ; and that the said *Murdock Co.,*on the 5th of December, 1809, having learned, by a letter from the plaintiff, that the said bills and protests had not been received by him, duplicates thereof were then immediately forwarded to him by the packet.

It was in evidence that the usual intercourse between the *United States*and *Great Britain*was interrupted at the time the bills were taken up as aforesaid ; but that a packet, carrying a mail, sailed every *11month from *England,*being advertised for the first Wednesday of each month, and usually sailing within a week or ten days after that time. It was also proved that none of the monthly mails from *England*by the packets had been missing.

The duplicate of the bills and protest forwarded on the 5th of December, 1809, was received in March, 1810, by the plaintiff, sent to Mr. *Willard,*and by him communicated to *Leverett.*

The bills, when drawn by *Fields,*were negotiated by *Benjamin Leverett,*brother of the deceased, and one half of the amount was paid to *Fields,*the other half being retained, with a view to ascertain whether they would be accepted. The money so received had been paid over to the plaintiff, upon an agreement that the payment should not affect the question between the parties.

*Fields,*the drawer, was insolvent before the drawing of these bills, although at that time he had some property, and a credit at one of the banks in *Boston.*In November, 1809, his furniture was attached, and his credit totally gone. Soon after the bills were negotiated by *Leverett,*he expressed some apprehension that they would not be accepted; as other bills drawn by *Fields*had been '•eturned protested.

The defendant’s counsel insisted, 1. That the plaintiff ought not to recover, without producing a protest for non-acceptance, and notice thereof to the endorser; and, 2. That the delay in notifying the endorser of the non-acceptance and non-payment had discharged him from all liability.

* The jury were instructed that any unreasonable delay [ * 4 ] m notifying the non-acceptance or non-payment was fatal to the plaintiff’s claim, notwithstanding the bill had been taken up for his honor; that a protest for non-acceptance was not necessary to be produced, if the endorser had otherwise due notice that the bills were not accepted; but that the delay from the 3d to the 19th of June, before any letter or other information was sent of the nonpayment, was laches, which discharged the endorser; unless they were satisfied that such delay was occasioned by difficulties in com munication, which could not be removed.

The jury returned a verdict for the plaintiff, which the defendant moved to set aside, as being against law and evidence.

*Selfridge*for the defendant.

The holder of these bills was guilty of laches in employing his clerks to present the bill, instead of a ' notary, (1) or in not employing a notary until three days after the bill was received; and the case shows that he then made the protest for facts which were not within his knowledge. There were laches

*12also in delaying to give the necessary information ; by which delay the opportunity of a packet was lost, and thus the information was received here a month later than it might and ought to have peen. (2) The same delay again took place in forwarding the protest for non-acceptance.. What is reasonable notice, is said, by Lord *Mansfield,*(3) to be partly a question of fact, and partly a question of law. Then, when the facts are agreed, it must be wholly a question of law. There was no protest for non-accep'tance produced at the trial, which is necessary to support this action. (4)

*Welsh*for the plaintiff.

There was sufficient evidence to satisfy the jury that the bills were regularly protested for non-acceptance. It was not necessary to produce the protest at the trial; noi at any time to produce it to the endorser; so that notice of the non-acceptance was forwarded, and duly given to him. (5) The defendant had a right of action against the drawer immediately on [ * 5 ] notice * of the non-acceptance. When this right accrued to the defendant, a like remedy lay for the holder against him

(1)

 4 *D. & E.*175.

(2)

 2 *H. Black.*569.

(3)

 1 *D. & E.*168.

(4)

 2 *D.*& *E.*713. — 5 *D. & E.*239. — 7 *East.*359.-6 *Mod.*81. — 1 *Salk.*13]. — 2 Ld. *Raym.*992.

(5)

 2 *H. Black.*509, 567.-2 *Esp. Rep.*511. — *Butler's*N. *P.*269. — *Doug.*55.

*By the Court.*

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; (a) but he must give notice of the fact to such prior *13parties as he intends to resort to. When he institutes his action for the non-payment, both protests are to be produced. (b)

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*14counted for. (c) The verdict must be set aside, and a new tria1 granted.

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.]

(a)

**[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**13288. But lie afterwards says, “ A foreign bill should be noted for non-acceptance or non-payment on the day on which acceptance or payment is refused; *but it would scent that the protest may be formally drawn up at any future period, provided that, in the event of a*suit, *it be drawn up before the commencement of such suit.”*— Ch. 7, sec. 2.—And he cites *Butter,*N. P. 272. — *Leftly*vs. Mitts, 4 *T. R.*174.— *Chaters*vs. Bell, 4 *Esp.*N. P. *C.*48. — *Selw.*N. P. 379. — *Selwyn*says, Ld. *Kenyon*so held in *Chaters*vs. *Beil,*and also Ld. *Eldon,*on a new trial in the same case, and that a case was then reserved for the opinion of the court; that after argument, the court, considering the question to be of great importance, directed it to be turned into a special verdict. But the sum in dispute being very small, and the parties unwilling to incur the expense of a special verdict, the recommendation of the court was not attended to, and the case was not mentioned again — 1 *Selw.*p. 360, 5th ed. — *Starkie,*in his treatise on Evidence, lays it down as law, *that11*where the drawer resides abroad, the notice of the non-acceptance should be accompanied by a copy, or some other memorial, of the protest; for otherwise he cannot know of the protesting. But if he resides here, although at the time of the dishonor he be abroad, or if lie has returned to this country previous to the dishonor of the bill, notice of dishonor is sufficient; for he can make inquiry as to the protest ” —2 *Starkie on Ev.*265 — He cites *Goosetrey*vs. *Mead, Bul.*N. P. 271. — *Bailey on Bills,*118. — *Cromwell*vs. *Hynson,*2 *Esp. C.*oil. — *Robins*vs. *Gibson,*3 *Camp.*334. — 1 *Maule & Selw.*288.— *Chaters*vs. *Bell, 4 Esp.*N. P. 48. — Mr. *Selwyn*observes, that *Cromwell*¿j/* *Al.*vs. *Hynson*can no otherwise be reconciled with *Goosetrey*vs. *Mead,*than by considering the expressions used in the latter case,6 *not sending the*protest,’ as meaning nothing more than 6 *not giving notice of the*non-acceptance.’ ” — *Selw.*N. P. 339.— *Chitty*says, *(Chitty on Bills,*6th ed. p. 217,) *u*It has been said, that- the making a protest alone is not sufficient, and that a copy of it, or some other memorial, within a reasonable time, be sent, with a letter of advice to the persons on whom the holder means to call for payment; *but it has been recently decided that it is not necessary that a copy of the protest should accompany the notice of non-acceptance.”*He refers to the cases above cited, and particularly to *Robins*vs. *Gibson, Cromwell*vs. *Hynson, Chaters*vs. *Bell,*and *Bailey,*122. *Pothier, Traite du Contr. de Change,*Par. 1, ch. 5, s. 150. *Pothier*says, the holder will have satisfied the ordinance, if, after having caused the bill to be protested, he, within the time prescribed, give notice to the drawer or the endorsers, who are to pay, that the drawee has refused to pay ; although he has omitted to give a copy of the record of the protest in his letter of notice. Mr. Thomson, in reference both to the *English*and *Scotch*law, says, “ It is not now held necessary that notice should be accompanied by the bill, or by the principal, or a copy of the protest, even in the case of a foreign bill. *It does not even seem requisite to mention that there has been a protest,*when the person receiving the notice is in this country at the time of the dishonor; as he may, in that case, ascertain this fact, although it should not be notified to him. But if he is abroad, *the fact of a protest having been taken, ought to be mentioned*in the notice, since he cannot otherwise be supposed to be aware of it. If he afterwards require a copy of the protest, it must be sent to him.”— *Thomson on Bills,*pp. 505, 506, 507. He cites the *English*cases before referred to, and several *Scotch*cases; and particu larly *Johnston*vs. *Murray, Morr.*1556. — *Johnson*vs. *Hogg, Morr.*1570. — *Hawkins*vs. *Cochrane, Morr.*1581. — *Coutts*vs. *Nisbet, Morr.*1586. — 1 *Bell. Com.*326. — By the laws of *Holland,*it is said, “ The protest must be made within the days of grace, and transmitted to the prior endorser, from whom the holder received the bill, by the first opportunity, or, having given him notice thereof, direct to the drawer.”— *l'an der Linden,*692^-3. *Van Leeuwen,*440. — Ed.]

(b)

**[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.]

(c)

**[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.]