and on trial is a competent witness notwithstanding the death of the other party to such contract. In that case Judge Woodson very ably and fully discussed the Missouri cases and cases from other states on the question and directly overruled Banking House v. Rood, 132 Mo.256, 33 S. W. 816, one of the cases relied on by respondent here.

This division has since approved and followed Wagner v. Binder, supra, in the case of Allen v. Jessup, 192 S. W. 720, loc. cit. 722. Practically all of the cases prior to the Wagner Case, cited by respondent as authority for his contention that Max R. Orthwein was incompetent to testify, are fully discussed and distinguished by Judge Woodson in the Wagner Case.

Respondent contends that Scott v. Cowes, 274 Mo. 398, 195 S. W. 732, handed down since the Wagner Case, sustains his position. In that case the agent was held incompetent, not on the ground of his agency, but because he was himself a party to the contract and also a party to the suit. The fact of the agency of Bennett for one of the other parties to the contract was held not to make him a competent witness when he was himself one of the principals. We are unable to see wherein this case is in any wise inconsistent with the Wagner Case. Judge Woodson, who wrote the opinion in the Wagner Case, concurred in the Scott Case, and apparently felt that the rulings were harmonious. Respondent also contends that he is supported by the late case of Edmonds v. Scharff, 279 Mo. 78, 213 S. W. 823. The supporting value of this case is destroyed, we think, by the language of White, C., who wrote the opinion of the court: "However, the question of whether an agent conducting a transaction may afterwards testify, when the other party to the transaction is dead, hardly enters in this case. Mrs. Summers was not the agent of her daughter; according to her own testimony as she gives it, she was herself the original party to the contract. Speaking of G. L. Edwards, she testified: 'I bought some lots in Bernie from him and paid him about $300 for them. He owed me some notes which I had been trying to collect for a long time and he gave me the lots for the notes. I had the deed made to my daughter, M. A. Edwards. * ** The notes I turned over to G. L. Edwards for these lots and they were canceled at the time, and I gave him a receipt for the account he owed me.' The effect of the transaction as she describes it is precisely the same as if she had purchased the lots and had the conveyance made to herself and subsequently had conveyed to her daughter. She is a party to the original contract or cause of action. The wording of the statute completely covers her case. tion 6354, Revised Statutes 1909. The provision is this: 'Provided that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of another party to the action claiming under him.'" (Italics used by White, C.)

It therefore appears that the trial court erred in excluding the testi

mony of Max R. Orthwein touching the transactions with Nolker and Mrs. Orthwein tending to show waiver of presentment and notice of dishonor, and for that reason the judgment must be reversed, and the cause remanded for new trial.

SECTION 2.-PRESENTMENT FOR ACCEPTANCE

BRIGHT v. PURRIER.

(London Sittings, 1765. Buller's N. P. 269.)

A foreign bill of exchange was drawn, payable at 120 days after sight, but when the bill was presented for acceptance, that was refused; upon which an action was immediately brought against the drawer, without waiting till the expiration of the 120 days. On the trial the defendant objected that he was not liable till the expiration of the 120 days, and offered to call evidence to prove that the custom of merchants was such. But Lord MANSFIELD said the law was clearly otherwise, and refused to hear the evidence. So the plaintiff recovered.

ROSCOW v. HARDY.

(Court of King's Bench, 1810. 12 East, 434.)

The plaintiff, as indorsee, sued the indorser of a bill of exchange for £50. dated Manchester, 4th January, 1810, and stated it to have been drawn by J. and P. Walmsley, at three months after date, in favor of R. Kirk or order, on Messrs. Shaw and Edwards, Walbrook, London, and indorsed by Kirk to the defendant, and by the defendant to the plaintiff. At the trial at Guildhall before Lord Ellenborough, C. J., the bill, when produced, had eleven other indorsements upon it; and it appeared that it was in the possession of the Warrington Bank when it was tendered for acceptance on the 23d of January, and refused to be accepted; but it did not appear that the Warrington bankers had given any notice of the dishonor at the time to any person; but as soon as the bill was due, they again tendered it for payment; which, being refused, they called upon the plaintiff for payment; and he, not knowing any of the circumstances, took the bill up, and then called upon the defendant; who, being apprised of the dishonor on the 23d of January, refused payment; alleging his discharge by the laches of the then holders. And upon proof of these facts the plaintiff was nonsuited.

Topping moved to set aside the nonsuit, and contended that the plaintiff ought not to be prejudiced by the laches of the subsequent holders of the bill, of which he was wholly ignorant at the time when he paid it, and without any means of information. The bill apparently came back to him in due course of time, and there was nothing apparent upon the face of it by reference to its date to raise the suspicion of a diligent man that it had been presented for payment and dishonored two months before, nor anything to impeach his want of due diligence in obtaining knowledge of that fact; and without that knowledge he could not have defended himself against an action on the bill by the Warrington bankers. Then no laches being imputable to himself, or apparent upon the face of the bill when paid by him, he ought not to be debarred from his remedy over.

Lord ELLENBOROUGH, C. J. If the indorsers on the bill be once discharged by the laches of the holder at the time in not giving due notice of the dishonor of it, their responsibility cannot be revived by the shifting of the bill into other hands.

LE BLANC, J. It is admitted, that the fact of the dishonor on the 23d of January, and the want of due notice, would have been a good defense to the plaintiff against the Warrington bankers, if he had been apprised of it at the time of the demand made upon him; and that such laches was also a discharge to the other indorsers. How then can it change the liability of those other indorsers, who perhaps might have known the fact, and had a legal defense to the action, if payment had been then demanded of either of them by the Warrington bankers, that those bankers first called upon one of the indorsers, who happened not to know of their laches?

The other Judges assenting,

Rule refused.

O'KEEFE v. DUNN et al.

(Court of Common Pleas, 1815. 6 Taunt. 305.)

This was an action brought against the defendants, as the drawers of a bill of exchange drawn on Ricketts & Co., at one month after date, payable to Sinclair, and by him indorsed to the plaintiff, for the ⚫ nonacceptance of the bill by Ricketts. The defendant pleaded, that before the indorsement to the plaintiff, and presentment by her for acceptance, the bill was presented by Sinclair for acceptance and refused, and that the defendants had no notice given them of such refusal to accept. After verdict for the defendant on this issue joined on a traverse of this plea, Vaughan, Serjt., for the plaintiff, who at the trial before Gibbs, C. J., at the sittings at Guildhall after Hilary term, 1815, proved the facts of his declaration as above stated, in Easter term obtained a rule nisi to enter up judgment for the plaintiff non obstante

veredicto, upon the ground that the special plea averring no notice to the plaintiff of the first dishonor of the bill, was insufficient in law.11 DALLAS, J., stated the case, and proceeded as follows: Two points seem to be clear, first, that a bill payable at a future day; or so many days after date, need not be presented for acceptance, but may be demanded, without such presentment, when due. Secondly, that if, however, presentment be made, and there be a refusal to accept, notice. of such refusal ought to be given by the party to whom it was made; and that for the want of such notice, as between the drawer and such holder of the bill, the drawer will be discharged; if, therefore, this bill had continued in the hands of Sinclair, the payee, to whom the refusal to accept was made, and by whom no notice of such refusal was given, the drawer, as to him, would have been discharged; but the action is not brought by Sinclair, but by the plaintiff to whom he had indorsed the bill, and without notice by him to her that the bill had been refused acceptance. The question then will be, whether she can stand in a situation different from that in which he would have stood if he had brought the action. On the part of the defendants it is argued, that there is no distinction; and this is contended, first, upon the reason of the rule by which the drawer would be discharged against a party knowing of the refusal to accept and omitting to give notice; secondly, on the authority of a decided case, which is said not to be distinguishable from the present. And first, as to the reason of the rule, the drawer is presumed to have effects in the hands of the drawee, and the bill is an order to appropriate so much to the payee or his order. If, therefore, on presentment the drawee refuse to accept, from the very nature of the transaction, the drawer should have notice, that he may withdraw his effects, or proceed against his debtor, as the case may seem to him to require. But if he have no effects, the reason of the rule fails, and with it the rule; and in such event, notice is not necessary.

Now it has been contended, that this rule cannot vary by the shifting of hands, for that the drawer is equally injured by the want of notice, in whatever hands the bill may be; and further, that when the drawer is once discharged, his responsibility cannot be revived by the acts of others independent of him. With respect to the first part of the statement, it may be admitted to be true; but with regard to the latter, it is begging the question; for the question is, if this responsibility have ever ceased as to a party in the situation of the plaintiff. Or rather, whether the defendants have not agreed so to be responsible in the events which have happened in the present case. The inquiry, therefore, must be, whether an indorsee for a valuable consideration, and without notice of any illegality not making the bill void in its origin, or of any laches in the course of its circulation, is to be considered as receiving a bill subject to all that might affect it in the hands of the

11 The arguments of counsel, the concurring opinions of Gibbs, C. J., and Heath J., and the dissenting opinion of Chambre, J., are omitted.

payee, or of a previous indorser, or, in other words, may not the drawer be discharged as to the payee becoming indorser and yet continue liable to his indorsee? The nature of the contract appears to me to be this: The drawer of the bill payable at a future day enables the payee, by making the bill payable to him or to his order, to hold out to all the world, that he will pay the bill, in default of the acceptor, to the party entitled to present it for the acceptance or payment. He does not stipulate for himself that it shall be presented for acceptance, nor does the law cast such an obligation on the payee. The drawer, therefore, must be considered as contented to rest in ignorance whether it has been accepted or not, till the bill becomes due. And whether presented or not, depends upon the casualty of how the holder of the bill may choose to proceed. Any party who takes it, paying a valuable consideration, takes it, then, knowing that presentment for acceptance is not necessary, and nothing appearing upon the face of the bill to show it to have been presented and acceptance refused. Indeed he has reason to conclude the contrary in every case in which there is no noting for nonacceptance, which noting would be notice on the face of the bill, and under such a circumstance he would act at his peril. Taking it, therefore, before it becomes due, and ignorant of a refusal to accept, he is a purchaser for a valuable consideration, without notice, against a party who has enabled the indorser to put off an instrument, good upon the face of it, and by which, as far as appears, he has contracted to be bound. And considered in this light, I am of opinion, that from the very nature of the contract he is entitled to notice from the party having knowledge of the refusal to accept, and is discharged for want of such notice; but that he must be taken to have stipulated that this rule shall be confined to such party, and not be extended to an innocent and ignorant indorsee.

On the reason and convenience of the thing, this doctrine appears to me to be equally supported. It can do no harm to the circulation of bills of exchange, that the holder should be required, when acceptance is refused, to give immediate notice to the drawer, and that the consequence of a neglect to do it should devolve upon himself; but it would greatly clog the negotiability of such securities, if, upon some latent defect, and without any default in himself, every man shall be taught, and so be made to feel, that in the moment of paying the full value of a bill, he may be purchasing that which may turn out to be a mere nullity. This has hitherto been confined to two or three special cases, and ought not, I think, to be further extended; and I will only add, that in what I am now saying, I mean such bills as the genuine purposes of commerce require. It may be said, this may be guarded against by ascertaining, before taking the bill, whether it has been refused acceptance or not, and this is certainly possible, but for reasons that must be obvious, would in practice be so inconvenient, as almost to amount to a prohibition to take any unaccepted bill. As to cases in point, I am not aware of any which are directly so, and will