The central legal point established in the judgment is that the liability of the endorser under the Negotiable Instruments Act is contingent upon proper presentment for payment and wrongful refusal by the drawee.

Venkatasubba Rao, J.

1. The 1st defendant drew the Hundi in question, in favour of the 2nd defendant, the drawee being one Suppiah Chetty of Rangoon. The 2nd defendant endorsed the Hundi in favour of the plaintiff, who instituted the present suit. The claim was made against the 1st defendant on the ground that he was the drawer and against the 2nd defendant, on the ground that he was the endorser.

2. The first question that arises for determination is, "was this Hundi presented for acceptance or payment to the drawee at Rangoon?"

3. The learned Subordinate Judge has found that the plaintiff has not proved that the bill was duly presented for payment and has dismissed the suit against the 2nd defendant.

4. The Hundi bears the date, 29th April, 1916. It was endorsed in favour of the plaintiff, on 7th May 1916. The plaintiff says that he sent the Hundi to one Malayandi Chetti of Rangoon, requesting him to present it to the drawee for payment. Malayandi has not been called. But the plaintiff has relied on a letter, which purports to have been written to him by Malayandi. It refers to Malayandi having presented the Hundi and the drawee having refused to pay the amount.

5. The questson is, Can this statement of Malayandi Chetty be received in evidence?"

6. The learned vakil for the plaintiff refers to Section 32 of the Evidence Act:

Statements made by a person, whose evidence cannot be procured without an amount of delay or expense, which under the circumstances of the casa appears to the Court unreasonable, are themselves relevant facts, when the statement was made by such a person in the ordinary course of business.

7. This is the relevant portion of the section with which we are concerned. Granting for a moment that the statement was made by Malayandi "in the ordinary course of business" the question still remains:

Is the evidence of Malayandi Chetti not procurable without an amount of delay or expense, which under the circumstances appears unreasonable.

8. This is purely a question of fact. An application was made to the Court, on 18th December, 1920, for the issue of a warrant to this Malayandi Chetti. The Court ordered only the issue of summons. A subpoena was taken out, for the hearing fixed on the 11th March, 1921, and it was served on Malayandi on the 12th January 1921. It is said that Malayandi left for Rangoon, before he could be called to give evidence and therefore Section 32 could be invoked, on behalf of the appellant. It does not appear that any further steps were taken, to get the evidence of Malayandi. There was no application for the issue of a warrant, nor was an application made to take his evidence on commission. The mere fact that a witness happens to live at Rangoon is not a ground for holding that his evidence cannot be procured without unreasonable delay or expense. We overrule the contention that the statement in the letter in question is admissible under Section 32.

9. It is also noticeable that the drawee of the note, Subbiah Chetti, has not been examined. The plaintiff himself is not personally aware, either of demand having been made, or refusal to pay or accept. In these circumstances, we must hold, that the bill was not duly presented for acceptance or for payment.

10. On this finding, what is the result? Several sections of the Negotiable Instruments Act have been referred to; but in my opinion, Sections 35 and 91 have a direct bearing, on the question that arises. Section 35 refers to the liability of an endorser. It says that, in the absence of a contract to the contrary, the endorser of a Negotiable Instrument is bound to a subsequent holder, in case of dishonour by the drawee. There cannot generally be any dishonour by the drawee, without presentment of the bill to him for acceptance or for payment. Dishonour by the drawee is a condition precedent under Section 35, for the coming into existence of the liability of the endorser. As the plaintiffs case is that the bill was presented to the drawee and