accept in the usual way, by writing his name on the face, but declines accepting otherwise, or without seeing the bill, he cannot be charged with the penalties of non-acceptance; but if the drawee makes no such objection, and does or says what is the equivalent of acceptance, he cannot afterwards refuse to be held. on the ground that he did not see the bill.(g)

A drawee may demand a delay of twenty-four hours, during which he may inspect his accounts with the drawer, and determine whether to accept the bill or refuse acceptance, and during this time the bill may be left with him.() As soon, however,

as he accepts or refuses, although within the time, the holder should withdraw the bill. If the drawee delays acceptance more than twenty-four hours, the holder may treat this as a refusal to accept, and must indeed do so to hold the other parties.(i) It has been held, where the holder by his negligence or fault enables a third party to get possession of a bill which he had left with the drawee for acceptance, and which had subsequently been accepted, that the drawee is not liable in trover for the bill to the holder.(j)

(g) Supra, chap. 9. In Fall River Union Bank v. Willard, 5 Met. 216, it was held that, where the holder merely informs the drawee that he has the bill, and the latter tells him that it will not be accepted nor paid, the indorser is not thereby discharged, if no notice is given of the drawee's declaration. Hubbard, J. said: "The term presentment imports, not a mere notice of the existence of a draft which the party has in his possession, but the exhibiting of it to the person on whom it is drawn, that he may see the same and examine his accounts or correspondence, and judge what he shall do,whether he shall accept the draft or not Here there appears to have been nothing more than a casual meeting of the parties, and the conversation on the subject of the draft ensued." In Carmichael v. Bank of Pa., 4 How. Miss. 567, Sharkey, C. J. said: “Anything which amounts to a notification of the holding of the bill, with a request to accept, accompanied by the bill, will amount to a presentment. No formal presentment is necessary, or rather there is no form for a presentment. The bill explains itself, and the object is understood in the mercantile community, when it is shown and an answer required."

(h) Ingram v. Forster, 2 J. P. Smith, 242. In Bellasis v. Hester, 1 Ld. Raym. 280, Treby, C. J. said: "The party may have the whole day to view the bill, and that is allowed him by the law." See Hubbard, J., Fall River Union Bank v. Willard, supra, note g.

(i) See Ingram v. Forster, 2 J. P. Smith, 242.

(j) Morrison v. Buchanan, 6 Car. & P. 18. In this case the plaintiffs' clerk left the bill with the drawee for acceptance, and, subsequently calling for it, found that it had been accepted and delivered to another person. The plaintiffs sued the drawee for the bill. In defence, it was proved by the drawee that it was his custom to deliver accepted bills to the party calling for and accurately describing them; that the bill in suit had a private mark upon it, and was delivered to a person who, on being asked, gave the

The bill should be presented for acceptance either to the drawee in person, or to some one authorized by him to receive and accept.(k) As the holder must prove presentment in case he founds any right or claim on non-acceptance, the burden lies on him, if he presents it to an agent of the drawee, to prove that the agent was authorized to accept. But this proof may undoubtedly, as in other cases of agency, be circumstantial or indirect; as, for example, that he was the clerk of the drawee, known to be accustomed to do this kind of business for the drawee.

We have already seen, that an acceptance by one of two or more partners binds the firm.() Therefore, if a bill is drawn on partners, it may be presented to one alone. presented to one alone. If it is drawn on two or more who are not partners, it should be presented to all; but if presented to a part, or if presented to all and refused by a part, the acceptance will bind such as make it.

With regard to the place where presentment should be made. we refer to the chapter on Presentment for Demand, where the

right mark, amount, &c. Two days had elapsed between the time when the bill was left and the time when it was called for. Littledale, J., in summing up, said to the jury: “The questions for you will be: first, whether there was any negligence on the part of the plaintiffs in their conduct with respect to the bill; and, secondly, whether there was negligence on the part of the defendant. If you are of opinion that there was negligence on the part of the plaintiffs, then they will not be entitled to recover; but if the negligence was on the part of the defendant, then the plaintiff's will be entitled to the verdict. If there was not any negligence on the part of either plaintiffs or defendant, then the matter may be reserved for further consideration; as it is admitted to be a doubtful point of law. As to the first point, you will consider whether the plaintiffs' witnesses were the cause of the finding out of the private mark. . . . . . If he (the plaintiffs' clerk), by his improper act, enabled a person to ascertain the private mark, and thereby to procure the bill to be delivered out according to the usual course of business, then it will be for you to say whether you do or do not consider that as negli gence. The question as to the defendant is, Has he been guilty of that kind of negli gence which amounts to a conversion of the bill?" The jury found negligence in the plaintiffs' clerk, and that the defendant had used due caution. Verdict for the defendant. (k) Cheek v. Roper, 5 Esp. 175. This was a suit against a drawer. To prove presentment, it was shown that the bill was sent by the witness, who carried it to a place pointed out to him as the drawee's house, and offered it to some one in an adjoining tan-yard, who refused to accept. The witness could not swear that the person to whom he offered the bill was the drawee, or represented himself as such. Lord Ellenborough said, that the allegation of presentment for acceptance to the drawee "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 the drawee, 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."

subject is treated of at length. We may here, however, state, that if a bill be presented at the proper place, whether this be designated on the bill, or otherwise determined, and no one appears to accept it, it should be duly protested for non-acceptance, and notice be given. And if the drawee cannot be found at the place specified in the bill, and it appears that he never resided there, the bill is then also to be considered and treated as dishonored.(m)

SECTION II.

PROCEEDINGS ON NON-ACCEPTANCE.

The

WHAT the holder should do in case of non-acceptance or a refusal to accept, is much the same with the conduct which the holder of a bill should pursue in case of non-payment. rule, in general, is, that a foreign bill should be protested for nonacceptance, and due notice given to the prior parties; otherwise the holder will lose all remedy, both on the bill and the consideration for which it was given. It is customary, but not necessary, to protest inland bills. For a further consideration of this subject, reference may be made to the chapters on Presentment for Demand,(n) on Notice,(o) and on Protest.(p) The peculiarities with respect to bills of exchange, as regards acceptance for honor, better security, or by a drawee au besoin, have already been considered.(g) The holder, after due protest for and notice of nonacceptance, is entitled to sue the drawer immediately, without waiting for the bill to mature. (r) The reason is, that what the

(m) Wolfe v. Jewett, 10 La. 383. See Starke v. Cheesman, Carth. 509. (n) Infra, chap. 11.

(0) Infra, chap. 12, 13.

(p) Infra, chap. 14.

(q) Supra, pp. 64, 313.

(r) Bright v. Purrier, Buller, N. P. 269; Milford v. Mayor, 1 Doug. 55; Lord Eldon, C. J., Bishop v. Young, 2 B. & P. 78, 83; Boot ". Franklin, 3 Johns. 207; Miller v. Hackley, 5 id. 375; Robinson v. Ames, 20 id. 146; Wallace v. Agry, 4 Mason, 336; Sterry v. Robinson, 1 Day, 11; Winthrop v. Pepoon, 1 Bay, 468; Evans . Bridges, 4 Port. Ala. 348; Watson v. Tarpley, 18 How. 517. In Mississippi it is declared by statute, that the holder shall not be sued till after maturity. In Watson v. Tarpley, the drawer lived in Mississippi, the bill was drawn on New Orleans, and the holder lived in Tennessee. The suit was brought in the United States court, and it was held that the statute did not affect the rights of the holder. Although there is no right of actiɔn

drawer had undertaken has not been performed, the drawee not having given him the credit which was the ground of the contract.(s) The holder has also the right to sue any indorser forthwith,(t) the latter being considered, in this respect, as a new drawer.(u) The amount which he is entitled to recover is the face of the bill, interest, costs of protest, and damages. (v) The same rules apply here as in the case of non-payment.

The holder may, if he pleases, present again for payment, but the liability of the drawer and indorsers having become fixed by proper presentment and notice of non-acceptance, irregularity of proceeding in presentment for payment and notice thereof will have no effect in prejudicing his right in this respect. (w) Nor need presentment for payment be averred, nor, if averred, need it be proved, the allegations to this effect being clearly surplusage.(x) There seems to be no lapse of time short of the Statute of Limitations which can affect this right of the holder to sue, or which can be considered negligence, as the same rule applies as in the case of liability on any other contract.(y)

The holder is, as has been said,(z) entitled to expect an absolute acceptance, and the other parties have also the right to

till notice of non-acceptance, the debt is considered to have accrued at the time of drawing the bill. Macarty v. Barrow, 2 Stra. 949, 3 Wils. 16. See Puckford v. Maxwell, Hickling v. Hardey, 7 Taunt. 312.

6 T. R. 52;

(s) Lord Mansfield, Bright v. Purrier, cited 1 Doug. 55, who said that the law on the point had been clearly settled so long ago as 1765.

(t) Ballingalls v. Gloster, 3 East, 481, 4 Esp. 268; Mason v. Franklin, 3 Johns. 202; Weldon v. Buck, 4 id. 144; Aymar v. Sheldon, 12 Wend. 439; Bank of Rochester v. Gray, 2 Hill, 227; Watson Loring, 3 Mass. 557; Lenox v. Cook, 8 id. 460; Wild v. Bank of Passamaquoddy, 3 Mason, 505; Morgan v. Towles, 8 Mart. La. 730; Evans v. Gee, 11 Pet. 80. In Aymar v. Sheldon, 12 Wend. 439, the bill was drawn in Martinique on Bordeaux. By the law of France, protest for non-payment, as well as for non-acceptance, is necessary to render the drawer and indorsers liable. The indorsement was made in New York. Held, that, although presentment for payment would have been necessary to charge the drawer, it was not necessary to charge the indorser.

(u) Lord Ellenborough, Ballingalls v. Gloster, 3 East, 481.

(v) Sterry v. Robinson, 1 Day, 11; Weldon v. Buck, 4 Johns. 144.

(w) Miller v. Hackley, 5 Johns. 375; Evans v. Bridges, 4 Port. Ala. 348. We have already seen that the holder is not bound to present again, at the request of the drawer, supra, p. 339.

(x) Mason v. Franklin, 3 Johns. 202; Wallace v. Agry, 4 Mason, 336.

(y) Story, J., Wild v. Bank of Passamaquoddy, 3 Mason, 505, where a year had clapsed, and the drawer had become insolvent. Objections were made on these grounds to the right of the holder to recover against the indorser, but were overruled See also Lenox v. Cook, 8 Mass. 460.

(z) Supra, p. 330.

require that the acceptance should be absolute, or else that they should know that such an acceptance had been refused. The reason is, that the drawer and indorsers promise to pay in case the drawee does not fulfil the contract expressed in the terms of the bill; because, if the holder had the right to receive a conditional or partial acceptance without their knowledge and consent, it would be, in fact, giving him the right to bind them by another and different contract from that into which they had entered. Therefore, if the holder take an acceptance varying from the terms of the bill, without giving notice to the prior parties, he discharges them. (a) If he causes the bill to be protested, and gives a general notice to all the parties of nonacceptance, that is considered as a refusal of the drawee's offer, and the latter is not bound. (b) Hence it would seem that the only course for a holder to pursue in such cases, in order to hold the drawee and the other parties, is to give them notice of tho terms offered, and obtain their consent to his taking the accept

ance.

It has been said that the effect of neglect to give notice where there is a conditional acceptance is done away or prevented by the completion of the conditions before the maturity of the bill; and a neglect, where there is an acceptance as to part, and a refusal as to the residue only, discharges the persons entitled to notice as to the residue only; but this has been doubted. These questions have never been distinctly settled by adjudication, and text writers do not agree in relation to them. (c)

(a) Bayley, J., Sebag v. Abitbol, 4 Maule & S. 462, 466; Paton v. Winter, 1 Taunt. 419. In Walker v. State Bank, 5 Seld. 582, 13 Barb. 636, a bill drawn by the Empire Mills on A was presented by an agent of the holder, and accepted, “payable at the American Exchange Bank, Empire Mills, by A, Treasurer." The agent gave no notice of this acceptance to the holder, drawer, or indorsers. Held, that the agent should have treated the bill as dishonored, and given notice accordingly, and for neg. lect so to do was liable to the holder.

(b) Sproat v. Matthews, 1 T. R. 182. See Bentinck v. Dorrien, 6 East, 200; Mitchell v. Degrand, 1 Mason, 176.

(c) This is so stated in Bayley on Bills, 5th ed., 274, and by Chitty, 331, citing Bayley. Story, in his work on Bills, § 272, note, says, after quoting the remarks of Bayley: "It does not appear to me, that, upon principle, this doctrine can be supported; for the acceptance in both cases is contrary to the tenor of the bill, and may vary the rights and interests of the antecedent parties. The duty, therefore, would seem to be clear, that there should be a due protest, and due notice to the antecedent parties of the dishonor, and qualified or conditional acceptance, in order to bind them. This is the doctrine asserted by Pothier, De Change, n. 47. 48."