acceptance is a forgery, he will be [1] precluded from suing the acceptor, if such affidavit be made and sworn, though it be false.]

his conduct, confirmed him in such a belief, it might have altered the

case.

[Anderson v. Cleveland, 13 East's Rep. 480. n. In an action by an indorsee against the acceptor of a Bill, no demand was proved till three months after the Bill was due, and when the drawer had become insolvent. But by Lord Mansfield, the acceptor of a Bill or maker of a Note, always remains liable. The acceptance is proof of having assets in his hands, and he ought never to part with them, unless he be sure that the Bill is paid by the drawer.]

[1] Stevens v. Thacker, Peake, N. P. C. 187. The Plaintiff, who was indorsee of a Bill, presented it to the Defendant, as acceptor, for payment. The Defendant said the acceptance was a forgery, and offered to make an affidavit that he had never accepted the Bill. The Plaintiff at first agreed not to sue him, if he would make such affidavit ; but being afterwards convinced that the Defendant had accepted the Bill, refused to receive the affidavit, and brought this action. The affidavit had been engrossed, but not sworn. It was urged, that the Plaintiff could not recede from his agreement. But Lord Kenyon said, That had the affidavit been sworn, he should have held, that the Defendant had discharged himself from this action; though such affidavit had been false. But not having been sworn, the Defendant was still liable, unless he could prove the acceptance a forgery. Verdict for the Plaintiff

САР.

CAP. IV.

Of the Presentment for Acceptance or Payment. Of Payment. And of Notice of a Non-acceptance of Non-payment.

sary,

THE receipt of a Bill or Note implies an under taking from the receiver to (a) every person who would be intitled to bring an action on paying it, to (b) present in proper time the one, where necesfor acceptance, and each for payment, to (c) allow no extra time for payment, and to give (d) notice without delay to such person of a failure in the attempt to procure a proper acceptance or payment; and a (e) default in any of these respects will discharge such person from all responsibility on account of a non-acceptance or non-payment, and make (ƒ) the Bill or Note operate as a satis faction

(a) Vide post p. 129. to p. 142. (b) Vide post p. 99. to p. 107.

(c) Vide Tindal v. Brown, post p. 116. note (b) (d) Vide post p. 115. to 130.

(e) Vide post p. 115. to 130.

Syderbottom v. Smith, Str. 649. In an action against the indorser of a Note, Eyre, C. J. of the Common Pleas directed the jury to find for the Defendant, because the Plaintiff had not proved diligence to get the money from the maker; being of the old opinion that the indorser only warrants upon default of the maker.

Gee v. Brown, Str. 792. The holder of an Inland Bill gave the ac ceptor time, by intervals, from 14th of May, when the Bill became due, to 7th of June, and then sued the drawer, but there being no notice to him, Eyre, C. J. held the loss ought to fall on the Plaintiff.

(ƒ) By 3 and 4 Ann. c. 9. § 7. It is enacted, that if any person doth accept any such Bill of Exchange, for, and in, satisfaction of any former debt, or sum of money formerly due unto him, the same shall be ac

counted

faction of any debt or demand for which it was given.

The presentment is to be made where the Bill or Note is payable.

If the drawee or maker cannot be found at the place where the Bill or Note is payable, and it ap pears that he never lived there, or has (a) absconded, the Bill or Note is to be considered as dishonoured; if he has only removed, the holder (b) must endeavour to find out to what place he has removed, and make the presentment there.

If on a presentment it appears that the drawee or maker is dead, the holder (c) should enquire after his personal representative, and if he lives within a reasonable distance, present the Bill or Note to him.

[If in the absence of the drawee, a Bill has been

counted and esteemed a full and complete payment of such debt, if such person accepting of any such Bill for his debt, doth not take his due course to obtain payment thereof, by endeavouring to get the same accepted and paid, and make his protest as aforesaid, either for non, acceptance, or non-payment thereof.

(a) Anon. Lord Raym. 743," The custom of merchants is, that if B. upon whom a Bill of Exchange is drawn, absconds before the day of payment, the man to whom it is payable may protest it, to have better security for the payment, and to give notice to the drawer of the ab sconding of B." Proved by merchants at Guildhall, Tr. 6 W. and M. before Treby, C. J.

(6) Collins v. Butler, Str. 1087. The maker of a Note shut up hie house before the Note became due, and in an action against an indorser, the question was, Whether the Plaintiff had shewn sufficient in proving that the house was shut up? and Lee, C. J. thought not, but that he should have given in evidence that he enquired after the maker, or attempted to find him out. [Vide Bateman v. Joseph, post p. 141. n. [1] (c) Molloy, B. 2. c. 10. § 34. "If a Bill be accepted, and the party dies, yet there must be a demand made of his executors or administra tors; and in default of payment, a protest must be made.

accepted

accepted by his agent, and at the time when the Bill becomes due, the drawee be still absent, presentment for payment [1] should be made to such agent.]

If a Bill or Note is made payable at a banker's, it is (a) sufficient to present it for payment at the banker's, and if the banker is himself the holder, it is (a) sufficient for him to see whether he has effects in hand.

[If a Note be made payable at a particular place, and that place be mentioned in the body of the Note, presentment for payment [2] must be made

[1] See Philips v. Astling, post. p. 138. n. [1]

at

(a) Saunderson and others v. Judge, 2 H. Bl. 509. A Note made payable at the Plaintiffs' was indorsed to them; when it became due, the maker having no effects in their hands, they wrote to one of the indorsers to say it was not honoured, and afterwards brought an action against him; but it appearing that they had made no demand on the maker, they were nonsuited; on shewing cause however against a rule for a new trial, the Court held, that it was sufficient to present the Note where the maker made it payable, and as the persons at whose house it was made payable were themselves the holders, it was sufficient for them to refer to their books, and see whether they had effects in hand, and a new trial was granted,

[2] Sanderson v. Bowes and others, B. R. M. 52 Geo. III. In an action on twelve country bank notes, for £1. 1s. each, issued by the Defendants from their banking-house, at Workington, the declaration contained a count upon each Note, stating that the Defendants made a certain Promissory Note, "and thereby, on demand, promised to pay at the banking-house at Workington, to one R. N. or bearer," the sum of £1. 1s.; and that thereby the Defendants became liable, and promised to pay, according to the tenor and effect of the Note. There was however no averment of a presentment for, or demand of, payment, at the banking-house; but only the usual allegation, that the Defendants, 66 although often requested," (without saying where) had refused to pay. To these counts there was a general demurrer and joinder: and after argument, the Court held, that there being no privity between these parties, but in respect of the Note, and that being a contract to pay at a particular place, a demand of payment at that place, was in

the

at that place: but where the place is mentioned in the margin, it does [1] not appear that such presentment is necessary.]

[And it [2] seems that if a Bill be accepted,

payable

the nature of a condition precedent to the Plaintiff's right to recover; and there being no averment of such demand, the Defendants were intitled to judgment; and they gave judgment accordingly.

[1] In Wild v. Rennards, 1 Campb. N. P. C. 425. n. Bayley, J. held, that if a Promissory Note be made payable at a particular place, there is no necessity for proving, in an action against the maker, that it has been presented there for payment. And upon this case being cited in Sanderson v. Bowes, Bayley, J. said, that as far as he could recollect, the place was not incorporated with the body of the Note, it was only mentioned, in a memorandum, at the bottom. And in Callaghan v. Aylett, 2 Campb. N. P. C. 551. and Sanderson v. Judge, 2. H. Bl. 509. the same distinction is taken.

[2] Upon this point, there are conflicting decisions: the Court of Common Pleas having determined that it is necessary that such a presentment should be made; and the Court of King's Bench, in a subsequent case, that it is not.

Callaghan v. Aylett, C. B. H. 51 Geo. III. 3 Taunt. S. C. 2 Campb. N. P. C. 549. In an action against the acceptor of a Bill, it appeared that the Bill was accepted, payable at Messrs. Ramsbottoms, bankers, London; and two objections were taken to the Plaintiff's right to recover; first, that there was a variance between the acceptance proved, which was a special one, and that averred in the declaration, which was a general one; and secondly, that there was no proof of a presentment for payment at the place, where the Bill, by the acceptance, had been made payable. A verdict was found for the Plaintiff, subject to the opinion of the Court upon these points, which were reserved. · A rule nisi, to set aside this verdict and enter a nonsuit, was obtained, and after cause shewn, the Court (Mansfield, C. J. absente) held, that the place where a Bill is made payable, must be considered as part of the contract between the acceptor and the holder. That this was a special and qualified acceptance; binding the acceptor to pay at Ramsbottoms, and not universally. They said, it seemed fair, that when a party had provided funds at his banker's, for the due satisfaction of a Bill, he should be allowed to protect himself from the risk of being arrested upon it, by a malicious creditor. They referred to Parker v. Gordon. 7 East, 385, and said it could make no difference (for this purpose) whether the action were against the drawer or acceptor. Rule absolute. Fenton v. Goundry, 13 East's Rep. 459. Drawer against the acceptor of a Bill. The declaration stated, that the Defendant accepted the Bill payable

H