*CHAPTER V (a). [ * 205 OF PRESENTMENT OF A BILL FOR ACCEPTANCE-ACCEPTANCE- Ox delivery of a bill of exchange to the payee, or any other person who becomes holder by transfer, it is in some cases necessary, and in all advisable, to present it for acceptance. On such presentment, the drawee either complies with the drawer's request by accepting the bill, or refuses to do so: in which latter case it is in general incumbent on the holder to give notice to the various other persons who became parties to the bill antecedently to himself; after which any person not originally a party may accept it supra protest for the honour of the drawer or indorsers; and in some cases the holder may protest a bill for better security. In treating of each of these matters in their natural order, it will be necessary, to consider, First, when a presentment for acceptance is necessary, and at what time, and in what manner it must be made: Secondly, by whom, at what time, and in what manner, an acceptance may be made, and the obligation it imposes on the acceptor: Thirdly, the conduct which the holder must pursue, in case of a refusal to accept: Fourthly, the protest for better security; and Lastly, of acceptances supra protest. Sec. 1. Of presentment for accept *When a bill is drawn payable within a specified time after sight, it is necessary, in order to fix the period when it is to be paid, to present it to the drawee for acceptance (b); but in other cases it ance; and is not incumbent on the holder to present the bill before it is due (c); and in Bristol it is said, that the practice is not to pre- [206] (a) As checks, promissory notes, and bills, when payable on demand, are never presented for acceptance, or accepted, the observations in this chapter in regard to presentment for acceptance, will in general be inapplicable to those instruments. (b) Per Eyre, C. J. in Muilman v. D'Eguino, 2 Hen. Bla. 565. but if a bill be on an insufficient stamp, no presentment seems necessary, ante, 75. (c) Per Gibbs, C. J. in O'Keefe v. Dunn, 1 Marsh. 616, 621.—6 Taunt. 305. S. C. and ante, 162, n. 1-Bayl. 100.-1 Selw. 4th ed. 310, 1. Goodallv. Dolley, 1 T. R. 713.-Blesard v. Hirst, Burr. 2670. Per Lord Ellenborough, in Orr v. Maginnis, 7 East, 362.—acc. Mar. 46. Com. Dig. tit. Merchant, F. 6, semb, contra. VOL. J. ла 1st, when necessary. 2ndly, At what time presentment should be marle for ac E *The holder of an inland bill payable after sight is not bound instantly to transmit the bill for acceptance, *he may put it into circulation, and if he do not circulate it, he may take a reasonable ceptance. **209] in order that the period may commence from which the payment is to take * 210 place, but the question, what is reasonable time, must depend on the particular circumstances of the case; and it must always be for the jury to deter mine, whether any laches are imputable to the plaintiff-Per Buller, J. the only rule I know of, which can be applied to the case of bills of exchange, is, that due diligence must be used. Due diligence is the only thing to be looked at, whether the bill be foreign or inland; and whether it be payable at sight, or at so many days after, or any other manner. But I think a rule may be thus far laid down as to laches with regard to bills payable at sight or a certain time after sight, namely, that they ought to be put in circulation; and if a bill drawn at three days sight were kept out in that way for a year, I cannot say that there would be laches; but if, instead of putting it in circulation, the holder were to lock it up for any length of time, I should say that he would be guilty of laches, but further than this no rule can be laid down. Per Heath, J. no rule can be laid down as to the time for presenting bills payable at sight, or at a given time afterwards. In the French ordinances of 1673, in Postlethwaite and Marius, it is said, that a bill payable at sight or at will is the same thing.-See also Bayl. 100, 1.2. Goupy and another v. Harden and others, 7 Taunt. 159.-2. Marsh. 454. -1 Holt, C. N. P. 342. S. C. Indorsee of two bills of exchange drawn in London, 12th of May, 1815, upon Gould and Co. of Lisbon, at thirty days after sight, payable to defendants, and by them indorsed in London, and transmitted by them to the plaintiffs in Paris, and afterwards indorsed by the plaintiffs to Ricci and Sons, who further negotiated them. It was proved that the drawees paid their bills to the 30th June, 1815, but the bills were not presented to them for acceptance until the 22d August in the same year, when they were refused, and protested for non-acceptance. In this action against the defendants as such indorsers, it was objected that there had been laches in not presenting the bills for acceptance; that the bills were payable at thirty days sight. If they had been sent to Gould and Co. with due diligence, and he had refused to accept upon notice of the dishonour to the defendants, they might have recovered against the house of De Franca and Co. the drawers, who continued solvent more than two months from the date of the bills, but instead of transmitting the bills in the ordinary way to Lisbon, they are sent in general circulation, and the defendants hear nothing of the transaction till five months after the indorsement. Per Gibbs, C. J. on the trial," The distinction is between bills payable at a certain number of days after date, and bills payable at a certain number of days after sight. In the former, the holder is bound to use all due diligence, and to present such bill at its maturity; but in the latter case, he has a right to put the bill into circulation before he presents it, and then of course it is uncertain when it will be presented to the drawee. It is to the prejudice of the holder if he delays to do it, and he loses his money and his interest." There are dicta that it ought to be done in a reasonable time. Verdict for he plaintiffs. Goupy v. Harden, 7 Taunt. 162. Same case on a motion by defendant to set aside the verdict. Per Gibbs, C. J. "If these bills had been locked up and not sent into circulation, the case would have been widely dif ferent. I know dicta may be found, that a bill payable at sight, must be pre sented within a reasonable time; but this very question occurred in this court in the case of Muilman v. D'Eguino, 2 Hen. Bla. 565. Bills were sent out to India, and one question was whether they were presented for acceptance within a reasonable time. in India, and it was held that they were; but the main question was, whether they were delayed too long in Europe before they were sent out." Upon the last point, Eyre, C. J. says, "There would be great difficulty in saying at what time such a bill should be presented for acceptance. The courts have been very cautious in fix time to present it for acceptance, and a delay to present it until 2ndly, At the fourth day a bill on London, given within twenty-miles thereof, is not unreasonable (a). ing any time for an inland bill payable at a certain period after sight, to be presented for acceptance; and it seems to be more necessary to be cautious with respect to a foreign bill payable in that manner. I do not see how the courts can lay down any precise rule on the subject." Heath, J. says, "No rule can be laid down as to the time for presenting bills payable at sight or a given time after." The jury have found that these bills were presented in a reasonable time, but the law prescribes only that they must be presented at some time. Buller, J. is still stronger, and lays down the rule only that the bill must be put into circulation. In the present instance these bills were put into circulation, and they passed through Paris and Genoa. He proceeds to say, if they are circulated the parties are known to the world, and their credit is looked to; and if a bill, drawn at three days sight, were kept out in that way for a year, I cannot say that there would be laches." But, if instead of putting it into circulation the holder were to lock it up for any length of time, I should say that he was guilty of laches. I am therefore clearly of op nion that the parties were not guilty of laches, in putting this bill into circulation before it was presented for acceptance." (a) Fry v. Hill, 7 Taunt. 397. This was an action for goods sold and delivered, and upon the trial before Parke, J. at the sittings after Michaelmas term, 1817, it appeared that the defendant having occasion to pay the plaintiff 134/. 18s. for goods, early on Friday the 9th of the month, the defendant's bankers on his account as to Z134. 188. (parcel) and receiving from the plaintiff the difference in cash, delivered at Windsor to the plaintiff's servant, a bill, to which the defendant was no party, drawn by themselves upon their corresponding banker in London, at one month after sight, for 1401. The bill was presented for acceptance on the 13th of the same month, and the country bankers having failed on that same day, acceptance was refused. Shepherd, Solicitor-General, contended, that as well by this course of dealing which the plaintiff himself had elected, as by his laches in presenting the bill, he had made the bill his own, and was paid for the goods. The jury, however, under the direction of Parke, J. who relied on Goupy v. Harden, ante, 209, found a verdict for the plaintiff. The Solicitor General now moved to set it aside, and enter a nonsuit, renewing the same objections. He insisted that it was the duty of the plaintiff, receiving a bill payable at a certain time after sight, to present it for accep tance, as soon as he conveniently could: If the plaintiff had forwarded this bill for acceptance on the Friday, Saturday, Sunday, or Monday, he would thereby have enabled the defendant to withdraw his funds from his banker's hands. The necessity is more urgent to present for acceptance a bill payable after sight, than a bill payable after date, because, by deferring it, the holder protracts the period of that payment, whereby the drawer proposes to withdraw his effects from the hands of the drawee. Secondly, it was for the plaintiff's own convenience of remittance, that, instead of taking a check for the sum which the defendant proposed to pay, he had commuted it for a bill, and this was strongly evinced by his taking a bill not for L134. 188. but for L140. paying the difference, and therein blending his own property with this payment, whereby he had rendered the bill completely his own, and was paid for his goods. Gibbs, C. J. The defendant's argument on the first point, would go to the extent, that the holder of a bill payable after sight is bound to transmit it for acceptance, without putting it into circulation at all. But even if it were a case in which it was required to give instant notice, it has been repeatedly determined that the holder of a bill is not bound to send it on the same day that he receives it; and there was no post to London on the Saturday. He might have sent it on the Sunday. But I do not go upon that ground. The holder must present a bill payable after sight in a reasonable what time presentment should be made for acceptance, 2ndly, At what time presentment should be made for ac ceptance. [ * 211 ] *It has been said, that the question what is a reasonable time, must depend on the particular circumstances of the case; and that it must always be for the jury to determine, whether any laches are imputable to the plaintiff a); and this rule appears to have been adopted in the more recent cases applicable to this subject (b), but from other cases it should seem that reasonable time is to be taken as a question of law dependent upon the facts (c). It was said by Lord Mansfield (d), that what is reasonable time for giving notice of the dishonour of a bill, is partly a question of fact and partly of law; it may depend in some measure on facts, such as the distance at which the parties live, the course of the post, &c.; but that whenever a rule can be laid down with respect to this reasonable time, it should be decided by the court, and adhered to for the sake of certainty (e). Presentment should [212] in all cases be made during the usual hours of business (f); but a neglect to make a presentment at a proper time may be excused by illness, or by the circumstance of war having been declared, or by other reasonable cause or accident not attributable to misconduct of the holder (g). time; but it is in the power of the holder to postpone the day of payment by postponing the day of the presentment for acceptance, and he certainly may put the bill into circulation if he will. In the recent case of Goupy v. Harden, the bills were put into circulation; here it does not appear what was done with the bill in the interval. The question on these bills drawn at sight certainly is left very loose by the cases. The result of the cases undoubtedly is, that which I have stated, and Eyre, C. J. says, in Muilman v. D'Eguino, (2 Hen. Bla. 565) that it is, under all circumstances, a question for the jury to determine whether such a bill was presented in reasonable time. Buller, J. in the same case, rather narrows that doctrine, and though he agrees, that if it were in circulation a twelvemonth, there would not be laches; yet he says, that if, instead of putting it into circulation, the holder were to lock it up for any length of time, he would be guilty of laches. Is this, therefore, a case, in which the plaintiff can be said to lock up this bill for any length of time? If we were to grant a new trial, the result would come at the last to this: it would be a question for the jury, whether there has been a default to present a bill within a reasonable time. That question has already been left to the jury, and they have found that the bill was presented in a reasonable time. We think, as the matter stands, it is perfectly right. - Rule refused. (a) Per Eyre, C. J. in Muilman v. D'Eguino, 2 Hen. Bla. 569.-Boehm . Sterling, 7 T. R. 425. (6) Muilman v. D'Eguino, 2 Hen. Bla. 565. ante 208 n. 1. and Fry v Hill, 7 Taunt. 397. ante 210. n. 1. (c) Darbishire v. Parker, 6 East. 12, 13.—Bayl. 100. (d) In Tindal v. Brown, 1 T. R. 167. (e) Appleton v. Sweetapple, Bayl. 65. n. c. et post. See also Darbishire v. Parker, 6 East. 12, 13.– Parker v. Gordon, 7 East. 382. (ƒ) Mar. 112.—Parker v. Gordon, 7 East. 385. (g) Vid. pest, as to what will excuse the want of giving notice of nonacceptance, or not presenting for payment; and see Patience v. Townly," 2 Smith's Rep. 223, 4. The presentment should be to the drawee himself, or to his au- 3dly, Mode of presenting thorised agent, for otherwise the drawer or indorsers will not be for acceptchargeable (a). It has been said that ex rigore, the drawee ought ance. to accept the bill immediately on presentment, or refuse to do so, and he is not allowed three days for deliberation by the custom of merchants (b); as, however, it is but reasonable that the drawee should have an opportunity, before he determines whether he will accept or not, of seeing whether he has effects of the drawer in his hands, the payee or holder usually may leave the bill with him twenty-four hours, or until the next day after the presentment, unless in the interim he accept or declare a determination not to accept(c); (a) Check v. Roper, 5 Esp. Rep. 175. Declaration against drawer of a bill for default of acceptance. To prove the fact of the bill having been presented to Hammond for acceptance, the plaintiff proved that the bill was sent by the witness, who was called, who carried it to the house which was described to him as Hammond's house; he offered it to some person in a tau-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. (6) Com. Dig. tit. Merchant, F. 6.—Marius, 15, 16, and see Hamburg Ordinance. (c) Ingram v. Forster, 2 Smith's Rep. 243, 4.-Bellasis v. Hester, 1 Lord Raym. 281.-Mar. 62-Beawes, pl. 17.-Mal. b. 3. c. 5. s. 1. Com. Dig. Merchant, F. 6.-Molloy, b. 2. c. 10. pl. 16. Bellasis v. Hester, Lord Raym. 281. Per Treby, C. J. The party may have the whole day to view the bill, and that is allowed him by the law. Marius, 15. No three days for acceptance-twenty-four hours for acceptance. But if the party to whom the bill of exchange is directed be a merchant well known unto you, and when the bill is presented to him to accept he shall desire time to consider on it, and so shall intreat you to leave the bill of exchange with him, and to come to him the next day, (provided the post do not go away in the interim) and that then he will give you answer whether he will accept or not, herein he doth demand nothing of you but what is usually allowed between merchants known one to another; for, according to custom of merchants, the party on whom the bill is drawn, may have four and twenty hours time to consider whether he will accept the bill or not; but that time being expired, you may, in civility, demand of the party on whom your bill is drawn, the bill of exchange you left with him to be accepted, if so he pleased, if he then say that he hath not as yet accepted it, and that he would desire you to call for it some other time, or the like; the four and twenty hours being expired, it is at your choice to stay any longer or not, and you may then desire a notary to go the dwelling-house of the party that hath the bill and demand the bill of exchange of him, accepted or not accepted, and in default of present delivery thereof, you may cause protest to be made in due form. But though this may be lawfully done, yet notwithstanding, amongst merchants which do know one another, they do not usually proceed so strictly for acceptance, but do leave their bills with the parties to whom they are directed to be acceptel, sometimes two or three days, if it be not to their prejudice, as namely, if the post do not depart in the interim; but if the post is to depart within two or three days, then it is a very reasonable thing, and which men, that know the custom of merchants, will not omit to de |