2. The jury were also instructed that this affidavit was such evidence of the loss of the note as to let in secondary proof of its contents, and that if the jury were of opinion, upon the whole evidence, that the note was not paid to the testator in his lifetime, but remained in the hands and custody of the defendant, at the time of the testator's decease, this would be sufficient to rebut the presumption of payment arising from the non-production of the note by the plaintiffs. It was held, that the instructions were unexceptionable. Ibid.

3. The question, whether the loss of a promissory note has been sufficiently proved to entitle the plaintiff to introduce secondary evidence of its contents, is to be determined by the court, and not by the jury. Ibid.

4. A accepted a draft drawn on him by two partners, and they procured from a bank a discount of the acceptances, by presenting a copy thereof, which the officers of the bank supposed to be the original. The partners soon after failed, and assigned to the bank all their dues, demands, &c., and delivered to the bank a trunk of papers; but the acceptance was not among them. One of the partners was soon after committed to the State prison, where he died unmarried in about three years, leaving no papers there, and no administration was taken on his estate. The other partner, soon after the failure of the firm, absconded, leaving his wife, and went to New York, where he resided three or four years, and then went to parts unknown, and was never again heard of. In about five years and a half after the acceptance was payable, the bank commenced an action against A, in the name of the surviving partner, to recover the amount of the acceptance; and, in order to introduce secondary evidence of the contents thereof, first gave evidence that inquiry had been made of the near relations of the partners, who said that the original was not and never had been in their possession; that it was not among the papers of the firm which were left by the surviving partner with his wife and with his attorney; but that there was, among the papers so left, the account of sales, signed by A, for the balance of which the acceptance was given, as was noted on the margin of said account. Held, that this evidence was sufficient to warrant the introduction of secondary evidence of the acceptance. Foster v. Mackay, 7 Met. 531.

7. Burden of Proof.

1. Where by statute promissory notes of a certain description issued after a certain day were made void, it is incumbent on the defendant, in an action on certain notes bearing date before the day, to prove that they were issued after it, and not on the plaintiff to prove that he received them before the day. Bayley v. Taber, 6 Mass. 452.

2. In an action by the indorsee against the maker of a negotiable note, the burden is on the defendant to prove that the note was negotiated after it was due and dishonored; and that burden is not removed by proof that the note was transferred and delivered to the plaintiff before it was dishonored, but was not indorsed until afterwards. Ranger v. Cary, 1 Met. 369.

3. In a suit by the payee against the maker, on a promissory note given in consideration of a promise to forbear to sue a third person for six months, the burden of proof is not on the payee to show that he has forborne according to his promise, but on the maker to show that he has not. Jennison v. Stafford, 1 Cush. 168.

4. In an action against the indorser of a note by an indorsee, who received it of the maker, the burden of proof, as to facts set up in avoidance of the note, is on the defendant, although he was apprised, when he received the note, that the defendant indorsed it merely for the maker's accommodation. Lincoln v. Stevens, 7 Met. 529.

5. In an action upon a promise to pay a sum of money, in such iron castings as the plaintiff might wish, he furnishing his own patterns in case the defendant should not have such as the plaintiff might want, and the plaintiff having requested that the castings should be made on a basket belonging to the defendant, the burden of proof was on them to show that the basket was not a pattern. Perry v. Botsford, 5 Pick. 189.

6. Where a partnership is carried on in the name of an individual, the burden of proof, in an action on a note in common form signed by such individual, is on the holder, to show that it was given for the use of the partnership. Manufact. Bank v. Winship, 5 Pick. 11.

7. Where one partner gives a note in the name of the firm for his private debt, the burden of proof is on the person taking such note, in an action against one who indorsed it without any consideration, to show that the indorsee knew the circumstances under which the note was made. Chazournes v. Edwards, 3 Pick. 5.

8. In an action against a firm as a party to a note or bill made or indorsed for the accommodation, or as surety of another, where the contract is the act of an individual partner, the burden of proof is on the plaintiff to show that such partner was authorized by the others so to bind the firm, or that they subsequently ratified his act. A precedent authority may be implied from the common course of business of the firm, or the previous course of dealing between the parties. A subsequent ratification may be inferred from the acts or omissions of the other partners after they know, or have the means of knowing, of the act of such individual partSweetser v. French, 2 Cush. 310.

ner.

9. In assumpsit by the bearer of a note against the maker, the burden is on the defendant to show that a partial payment, not indorsed, was made before the transfer. Wilbour v. Turner, 5 Pick. 525.

8. Evidence, in General.

1. It is competent for the defendant, in an action by the indorsee of a bill of exchange against the drawer, to prove that the plaintiff holds the bill merely as agent for the payees, and that they have ordered the drawer not to pay it. Barker v. Prentiss, 6 Mass. 430.

2. In an action upon a note payable to a single woman, brought by her husband and herself after marriage, it is incompetent for the defendant to prove the marriage unlawful, such matter being wholly in abatement. Coombs v. Williams, 15 Mass. 243

THE LAW OF BILLS OF EXCHANGE,

AN APPENDIX TO

THE MANUAL FOR NOTARIES PUBLIC.

1. WHAT IS A BILL? 2. BILLS AND NOTES ACCEPTED AND MADE BY AGENTS. 8. TIME OF PRESENTMENT. 4. EXCUSES FOR DUE PRESENTMENT. 5. PAROL ACCEPTANCE. 6. DESTRUCTION OF A BILL. 7. STATUTES AS TO ACCEPTANCE. 8. ACCEPTANCE OF A NON-EXISTING BILL. 9. ERASURE OF AN ACCEPTANCE. 10. WAIVER OF ACCEPTANCE. 11. CONDITIONAL ACCEPTANCE. 12. RIGHTS OF AN ACCEPTOR, SUPRA PROTEST. 13. WHAT IS A PROMISSORY NOTE? 14. NOTES PAYABLE TO A FICTITIOUS PERSON. 15. WHERE IS THE PLACE OF PAYMENT? 16. BANK CHECKS. 17. DAYS OF GRACE ON SIGHT BILLS. 18. CIRCUMSTANCES TO EXCUSE PRESENTMENT. 19. PRESENTMENT-BY WHOM TO BE MADE. 20. MODE OF PRESENTMENT. 21. MODE OF DEMAND. 22. EXCEPTIONS TO DEMAND. 23. WAIVER OF PROTEST. 24. PROTEST OF FOREIGN BILLS. 25. LEX Loci. 26. NOTICE TO ENDORSERS IN THE SAME TOWN. 27. WHEN NOTICE TO BE GIVEN. 28. NOTICE TO NON-RESIDENTS. 29. AN ENDORSER BOUND TO GIVE NOTICE. 30. NOTICE BY SPECIAL MESSENGER. 81. NOTICE TO JOINT ENDORSERS. 82. DEATH OF ENDORSER. 83. ACCEPTOR, SUPRA PROTEST. 34. TO WHAT PLACE SHOULD NOTICE BE SENT. 35. DECISIONS IN NEW YORK. 36. PERSONS BY WHOM NOTICE IS GIVEN. 87. NOTICE TO AN AGENT.

1. What is a Bill?

In a case reported in 26 Vermont, (3 Deane,) 345, an order in these words, "The Treasurer of the town of W. is directed to pay to F. or bearer $10, on demand. January 17, 1851," was held to be a valid bill of exchange. So, too, in 1 E. D. Smith, (N. Y.) 1, the omission of the name of the drawee was held not to vitiate a bill, as the acceptance supplied the defect, and was an admission that he is the person meant. But in the case of Peto v. Reynolds, 26 Eng. Law and Equity Rep. 404, an instrument in these words "Cameroons, September 3d, 1852. Exchange for £200. At sight of this, my third of exchange, the first and second, of the same tenor and date, being unpaid, please to pay A. B., or order, the sum of £200 for value received, and place the same, &c., to the account of C. Accepted, D. Bristol," was held not to be a bill of exchange, as it had no drawee. Nevertheless, the court said, "if it were shown that D., whose name was written across the instrument, had promised to pay the amount, and so ratified the act of the drawer, he would be liable on that promise.

In 12 Eng. Law and Equity Rep. 424, the instrument sued upon ran as follows, viz.: "Two months after date, I promise to pay to A., or order, £50 for value received." It was signed by B., directed to C., and across its face was written, "Accepted, payable at O., bankers, London, C." The court held the writing to be a bill of exchange. (See Manual, pp. 34, 35.)

2. Bills and Notes Accepted and Made by Agents.

H. signed a note with his own name, adding "Agent of the Churchman." It was held, that he was personally liable, although the Churchman was a business name of a person whom H. had power to bind by that name. (De Witt v. Walton, Selden's Notes of Decisions in Court of Appeals, April, 1854. But see Babcock v. Beman.)

3. Time of Presentment.

The following abstract of cases may be of service in determining what is a reasonable time, within the meaning of the text:

Where a creditor received from his debtor an order on a third person for the amount of his debt, dated the 9th of December, 1804, and which the drawee agreed to pay in ten or fifteen days, and the order was not presented until March, and in the mean time the drawee failed; it was held that the holder had not used due diligence to get the money, and that the loss ought to fall upon him. (Brower v. Jones, 3 Johns. 229.)

A bill of exchange was drawn in the city of New York, on the 12th day of December, 1822, payable at three days' sight, to be borne by the payee, who was then in New York, to Richmond, in Virginia, where the drawees resided; but owing to the ill health of the bearer, the bill was not presented for acceptance until the 10th day of January, 1823. It was held, that the delay in presentment was not unreasonable. (Aymar v. Beers, 7 Cowen, 705. See Manual, p. 41.)

4. Excuses for Due Presentment.

The sudden illness or death of the holder, or of his agent intrusted with the presentment, or any other accident or casualty, or the operation of superior force, or political events or war, the holder will be excused if he make a presentment afterwards, so soon as he reasonably can. Or if the holder, without any fault on his part, be at a great distance from the acceptor, so that it is impossible to make a due presentment on his part, the holder will be excused from making presentment at the proper time. So, too, if the drawer has no funds in the hands of the acceptor, and had no right to expect an acceptance, no presentment need be made to bind the drawer; and, generally, any party to the bill or note can waive any negligence on the part of the holder. (Story on Bills, §327. See Manual, pp. 41, 42.)

5. Parol Acceptance of Bills.

The rule would seem to be, both in this country and in England, that acceptance is implied when the drawee not only detains the bill, but from the whole of his conduct leads the holder to believe that he considers it accepted. (Chitty on Bills, part 1, chap. 7, sec. 2. See Manual, pp. 43, 44.)

6. Will the Destruction of a Bill by the Drawee Amount to an

Acceptance?

It has been supposed that the drawee's destroying a bill may amount to an implied acceptance; and in the case of Jeune v. Ward, 1 Barn.

ド

& Ald. 653, two judges were of that opinion, but the other two thought that the destruction of the bill was no acceptance; and a doubt was expressed by the latter, whether in any case destruction would do more than subject the party to an action of trover. It has been decided that if there has been a refusal to accept, and the holder submit to that refusal, but omit to take the bill away, a subsequent destruction of it by the drawee is not necessarily an acceptance. It is not easy to see how the wrongful act of destroying a bill, which is calculated to defeat the remedy on the bill, should be deemed evidence of a contract on the part of the drawee to pay the bill to the holder. (Chitty on Bills, part 1, chap. 7, sec. 2. See Manual, p. 45.)

7. Statutes Relating to Acceptances.

By Stat. 1 and 2, Geo. 4, chap. 8, no acceptance of any inland bill of exchange is sufficient to charge any person, unless such acceptance be in writing on the bill. This statute, and that of New York, referred to in the text, have been followed in Georgia and Missouri. (See Manual, p. 45.)

8. Acceptance of a Non-existing Bill.

The written promise must describe the bill to be drawn in terms not to be mistaken, so as to identify and distinguish it from all others; the bill should be drawn within a reasonable time after the paper was written, and it should be received upon the faith of the promised acceptance. If either of these circumstances fail, the promise will not amount to an acceptance. Where the writing containing the promise has no reference to the particular bill to be drawn, but is a general authority to draw at any time, and to any amount, against property to be shipped, the writer cannot be held as an acceptor of a bill drawn under it. The writing, however, may be regarded as a promise to accept the bill, and the writer may be sued on such a promise, by any. person who may have taken the bill on the credit of the promise. (Story on Bills, § 249. Cassell v. Davis, 1 Blatch. Circuit Court R. 335. See Manual, p. 47.)

9. Erasure of an Acceptance.

The law was formerly otherwise, and the proposition in the text is to be understood with this limitation, laid down by Justice Story, (Bills, § 252,) that the holder has not, subsequent to the acceptance, with the knowledge of the acceptor, passed it to another person for value, who should take it upon the faith of an acceptance, with the consent of the acceptor. (See Manual, p. 47.

10. Waiver of Acceptance.

Although an acceptance, when made and delivered, is irrevocable, it may be waived by an agreement or consent, expressed or implied, between the holder and the acceptor. And this waiver will discharge all the other parties to the bill, unless their consent to the waiver is obtained. Cases of express waiver may easily be suggested, as where the