liability on the drawer. The rule adopted, as we have seen, is, it must be presented in a reasonable time under all the circumstances. But Courts, not infrequently, experience great perplexity in making a distinction between a reasonable time for the presentation of such paper and laches on the part of the holder. Every case differs so essentially in its facts, it has given rise to many apparently contradictory decisions, but through all of them is noticeable the efforts of the Courts to ascertain whether the bill was kept in circulation for only a reasonable period in the regular course of business. When that fact is once established the liability of the drawer is regarded as continuing. It will be found the decisions differ only in what the various Courts deemed reasonable in each particular case.

In Robinson v. Ames, 20 Johns. 147, the bill declared on was drawn on the 6th of March, but not presented for payment to the drawees until the 20th of May. In the meantime the drawees had failed, but in a well-reasoned opinion the Court came to the conclusion there was no such laches as would discharge the drawer.

In Jordon v. Wheeler, 20 Tex. 698, the bill in suit was put in circulation and indorsed by defendants without having been presented for acceptance before it came to the hands of the plaintiff; that a little more than a month elapsed before he presented it for payment, and that was declared to be according to usage.

In Nichols v. Blackmore, 27 Tex. 586, the Court was of opinion a delay of forty-seven or forty-eight days was not such laches as would forfeit the right of the holder to recourse against the drawer in default of payment by the drawees.

Many other cases of the same import might be cited, but these are sufficient for our present purpose. They establish, beyond doubt, the fact, there is no fixed period in which the bill must be presented for payment, but that each case must be decided on its own peculiar facts in the light of commercial usage.

In the case at bar the bill was immediately put in circulation. It was mailed to the payee on the day it bore date, to his proper address in Dakota. Some delay occurred, attributable to interruption in the transmission of the mails, but

this fact could not be imputed to the payee as laches. On the receipt, the payee immediately undertook and availed of the first opportunity to negotiate the bill. It was kept in circulation, and no delay was suffered other than that incident to the transaction of business in a sparsely populated territory like Dakota. The facts and circumstances proven show no laches on the part of any holder that would operate to discharge the drawers.

Aside from the presumption that will be indulged, the drawers must have known the bill was liable to be put in circulation for a limited period. The evidence, though conflicting, warranted the Court in finding the draft was sold with the knowledge that it was to be sent to the payee in Dakota. That being so, on every principle of justice, waiving all consideration of commercial usage, defendants ought to be held to have taken upon themselves the risk of the failure of the drawee for such reasonable time as it would take the bill to go there and be returned in the usual course of business, all things considered, and to be presented to the drawee at Chicago. We entertain

no doubt their obligation is to this extent. It would be absurd to suppose it was within the contemplation of the drawers the bill was to be sent directly to the drawee at Chicago for payment. The law imposed no such duty upon the party procuring it. He could rightfully send it to his creditor and be guilty of no laches.

No error appearing in the record, the judgment will be affirmed.

Judgment affirmed.

CHEEK v. ROPER.

5 Esp. 175. 1805.

Assumpsit on a bill of exchange against defendant as drawer.

The declaration stated in the usual form that the defendant drew his bill of exchange for £60 on one J. Hammond, tanner, in Bristol, which was duly shown, and presented to the said

Hammond for his acceptance, etc., who refused to accept or pay the same, by reason whereof the defendant became liable.

To prove the fact of the bill having been presented to Hammond for his acceptance, the plaintiff proved that the bill was sent by the witness, who was called, who carried it to the place which was described to him as Hammond's house, he offered it to some person in a tan-yard, who refused to accept it; but he did not know Hammond's person, nor could he swear that the person to whom he offered the bill was he, or represented himself to be so.

Lord ELLENBOROUGH said that the allegation respecting the bill was a material one, as the drawer could only become liable on the acceptor's default, which default must be proved. That the evidence here offered proved no demand on Hammond, and was therefore insufficient, so that the plaintiff could not recover on the bill. Some evidence must be given of an application to the party first liable.

The Acceptance Considered.-1. Who May Accept.*

DAVIS v. CLARKE.

6 Adolphus & Ellis, N. S., 16; 6 Queen's Bench, 16; 51 Eng., C. L., 15. 1843.

Assumpsit. The first count stated that "one John Hart," on the 8th day of March, 1838, "made his bill of exchange in writing and directed the same to the defendant, and thereby required the defendant to pay to him or his order 100l.," value received, at twelve months after date, which had elapsed before the commencement, etc.; "and the defendant then accepted the said bill, and the said John Hart then indorsed the same to plaintiff;" averment of notice to defendant, promise by him to pay plaintiff, and that he did not pay.

There was also a count on an account stated.

The first plea denied the acceptance; the second the promise;

* See Sec. 799, Vol. 6, Cyclopedia of Law.

the third alleged a discharge of the defendant by the Insolvent Debtor's Court.

The replication joined issue on the first two pleas, and traversed the discharge alleged in the third; on which traverse issue was joined.

On the trial, before PARKE, B., at the Essex Summer assizes, 1843, a written paper, in the following terms, was given in evidence on behalf of the plaintiff.

"£100.

"London, 8th March, 1838. "Twelve months after date pay to me or my order one hundred pounds, value received.

"To Mr. John Hart.

JOHN HART.”

Across the face of this instrument was written the follow

ing:

"Accepted.

"H. J. Clarke.

"payable at 319 Strand."

This writing across the face was proved to be the defendant's handwriting.

No other evidence being produced, the learned baron directed a non-suit. In Michaelmas term, 1843, Petersdorff obtained a rule nisi for a new trial.

The defendant has not accepted the bill described in the declaration: the instrument produced is indeed no bill of exchange. In Gray v. Milner (8 Taunt., 739), where the instrument was not addressed to any one, but had only a place of payment added, and in other respects resembled the document here proved, the acceptor was held liable, as having admitted himself, by the acceptance, to be the party pointed out by the place of payment. Here the drawer addresses himself; and the instrument more nearly resembles a promissory note. It may be that the defendant might have been sued as a surety.

This principle of Gray v. Milner (8 Taunt., 739), applies. The defendant, by his acceptance, estops himself from disputing his own character and the nature of the instrument. In Polhill v. Walter (3 B. & Ad., 114), indeed, it was said that no one could be liable as acceptor, unless he were the person to whom the bill was addressed, or an acceptor for honor. But the question of acceptance in this form was not then distinctly

before the court. Here it may be contended that the defendant identifies himself as the person addressed under the name of John Hart. The judge at nisi prius was requested, but refused, to allow an amendment, by calling the instrument a promissory note made by the defendant; the writing the name was a new making, according to the principle of Penny v. Innes. (1 C. M. & R., 439; S. C., 5 Tyrwh., 107; he referred also to Jackson v. Hudson, 2 Camp., 447.)

Lord DENMAN, C. J. There is no authority, either in English law or the general law merchant, for holding a party to be liable as acceptor upon a bill addressed to another. We must take it on this instrument that the defendant is different from the party to whom it is addressed. Polhill v. Walter (3 B. & Ad., 114), and Jackson v. Hudson (2 Camp., 447), are authorities showing that the defendant here cannot be sued as acceptor. In Jackson v. Hudson, Lord Ellenborough treated an acceptance by a party not addressed as "contrary to the usage and custom of merchants."

No previous case seems to be exactly like this. In Jackson v. Hudson (2 Camp., 447), there was one acceptance by the party to whom the bill was addressed, prior to the acceptance by the defendant. In Gray v. Milner (8 Taunt., 739), no party was named in the address; and I must say that the decision in that case appears to me to go to the extremity of what is convenient. It may be considered as having been decided on the ground that the acceptance was not inconsistent with the address, so that the acceptor might be deemed to have admitted. himself to be the party addressed. But here another person, the drawer himself, is named in the address. I do not know that a party may not address a bill to himself, and accept, though the proceeding would be absurd enough. Then it is said that the defendant is estopped: but that cannot be supported where the instrument shows, on its face, that he cannot be the acceptor.

The only question is, whether the defendant is such an acceptor as is described in the declaration; that is of a bill of exchange directed to him. No doubt this can be so only where he is the drawee; but here the bill is not addressed to the de