PLACE OF PAYMENT. By the Continental law the place of the drawee or maker is an indispensable requisite to a bill or note, and the place so named is the proper place for presentment, unless the instrument is expressly made payable at a different place. In some countries also, a drawer or indorser is not entitled to notice unless he indicates on the instrument the place to which notice shall be sent. But in Eng land and the United States the place of the drawee or maker or drawer or indorser need not be given, and, even if given, is not the proper place for presentment, or Bervice of notice, unless it is actually the place of business or residence of the respective parties.

See Index - Place of Presentment and Place of Serving Notice.

Conf. Turnbull v. Thomas, 1 Hughes, 172; King v. Vance, 46 Ind. 246; Campbell . Farmers' Bank, 10 Bush, 152.

STAMPS. For the requirements of the English statutes, see Byles, Bills (11th ed.), 102-116. In the United States, a tax of two cents is imposed upon " every bankcheck, draft, or order for the payment of money, drawn upon any bank, banker, or trust company, at sight or on demand." U. S. Rev. St. § 3418.

DATE. A date in a bill or note is required only for the purpose of fixing the time of payment. Accordingly, a bill or note may be antedated or postdated. Passmore v. North, 13 East, 517; Brewster v. McCardel, 8 Wend. 478; Godin v. Bank of Commonwealth, 6 Duer, 76; Walker v. Geisse, 4 Whart. 252; Bumpass v. Timmins, 3 Sneed, 459; or if the time of payment is otherwise indicated, no date whatever is necessary. Even when the date is omitted in a bill or note payable at a fixed period after date, the instrument is not on that account unnegotiable, for any holder who is willing to receive such an instrument may fill up the blank, with the date of the issue. See Mitchell v. Culver, infra, 733, where indeed the holder acting under the direction of his vendor was permitted to antedate the note.

In pleading, if the date of the bill is not set forth, it will be intended to be the same as the date of the alleged making or drawing. De la Courtier v. Bellamy, 2 Show. 422; Hague v. French, 3 B. & P. 173; Giles v. Bourne, 6 M. & Sel. 573; Seldonridge v. Connable, 33 Ind. 375.

FORM OF SIGNATURE. The signature of a party to a bill or note may be by his initials. Merchant's Bank v. Spicer, 6 Wend. 443; Palmer v. Stephens, 1 Den. 471 ; or by figures; e. g. “1. 2. 8”; Brown v. Butcher's Bank, 6 Hill, 443; or by a mark ; George v. Surrey, M. & M. 516; Hilborn v. Alford, 22 Cal. 482; Shank v. Butsch, 28 Ind. 19; Willoughby v. Moulton, 47 N. H. 205. The signature may be printed. Pennington v. Baehr, 48 Cal. 565.

MATERIAL REQUISITES OF BILLS AND NOTES. A bill or note is almost invariably written in ink, upon paper, but there would seem to be no legal objection to the use of other materials. Byles, Bills (11th ed.), 76; Geary v. Physic, 5 B. & C. 234; Brown v. Butcher's Bank, 6 Hill, 443; Reed v. Roark, 14 Tex. 329; Closson v Stearns, 4 Vt. 11.-ED.

CHAPTER II.

ACCEPTANCE.

SECTION I.

An Acceptance should import a Promise to pay according to the Tenor of the Bill.

ANONYMOUS.

SITTINGS IN LONDON, CORAM LORD HOLT, C. J., DEC. 2, 1696.

PER HOLT, CH.

order, that is, to

[Reported in Comberbach, 401.]

Where a bill of exchange is payable to a man's himself, if he makes no order, and if the party underwrites the bill, presented such a day, or only the day of the month, it is such an acknowledgment of the bill as amounts to an acceptance. And this by the jurors was declared to be the common practice.1

PETIT v. BENSON.

TRINITY TERM, 1697.

[Reported in Comberbach, 452.]

A BILL was drawn upon the defendant, who accepts it by indorsement, in this manner: "I do accept this bill to be paid, half in money and half in bills." And the question was, whether there could be a qualification of an acceptance; for it was alleged that his writing upon the bill was sufficient to charge him with the whole sum. But it was proved by divers merchants that the custom among them was quite otherwise, and that there might be a qualification of an accept ance; for he that may refuse the bill totally may accept it in part. But he to whom the bill is due may refuse such acceptance, and pro

1 See Hunter v. Cobb, 1 Bush, 239.- ED.

test it so as to charge the first drawer; and though there be an accept ance, yet after that he hath the same liberty of charging the first drawer as he before had.1

1 Wegersloffe v. Keene, 1 Stra. 214, accord.

In this case, the objections to sanctioning the practice of giving partial acceptances were forcibly presented in the notable argument of Strange, of counsel for the defendant. The material parts of his argument are contained in the following extract:

"The single point which will arise upon this case is, whether a partial acceptance be good or not within the custom of merchants. And I shall endeavor to prove that this acceptance is a void acceptance, and consequently the plaintiff has no cause of action.

"That I may not be misunderstood when I call this a void acceptance, I would premise that I do not mean it is so absolutely void as to exclude any remedy against the acceptor, for I must admit that this acceptance will create a contract between the parties, upon which an action upon the case would have laid. But what I shall insist upon is that this is a void acceptance within the custom of merchants, upon which the plaintiff has founded his case; and if it be void within the custom of merchants, then whatever effect it would have as a private contract between the parties will be a matter foreign to the present question, inasmuch as the plaintiff has not relied on it as such, but has brought his action upon the custom.

"I have inquired into the practice of merchants in this case, but have not been able to get any certain account of this matter, the true reason of which I apprehend to be that it is a case which seldom or never happens amongst merchants; for they honor one another's bills, though there are no effects of the drawers in their hands; and they would esteem it the greatest blemish that could be cast upon them, if their correspondent should once refuse to answer their bills any further than they had effects in his hands.

"What account I have received, I shall submit to the court. Some are of opinion that an acceptance for part is an acceptance for the whole; inasmuch as it deprives the party of the benefit of protesting, and so resorting back to the drawer. But I apprehend there is no reason at all for this. To say that, because commonly a man does honor another's bill beyond what effects he has in his hands, that therefore he must do it, is a strange conclusion. For suppose he has but £20 of the drawer's in his hands, and is bound to answer a bill for so much, it would be highly unreasonable that, in case the other should draw for £10,000, this man must either pay the whole or subject himself to an action for non-performance of the condition.

"But, if this notion should prevail, that an acceptance for part is an acceptance for the whole; yet as, on the one hand, it charges the acceptor with the entire sum, so, on the other hand, it discharges him of this action. For then there can be no color to split the demand into two actions; but the plaintiff, in declaring for part, ought to show that the rest is satisfied. Salk. 65.

"Others are of opinion that the party ought not to have taken this acceptance, but protested the bill as to the whole, an' sent for another to the value of what the drawee would answer. This likewise makes for the acceptor the defendant.

"I am informed, indeed, there is one gentleman does attend to say that this mat ter has happened in his own experience; but he, by what I find, is alone in that >pinion, and perhaps may not have considered the consequences of it.

"As there is this diversity of opinions upon a matter which seldom or never comes

in practice, I shall take it upon the reason of the thing, with a view likewise to the many inconveniences which will follow as a consequence of establishing this partial acceptance.

"The better to come at this, it may not be improper to state the method of transacting these affairs. When the party to whom a bill of exchange is made payable receives it, he immediately applies to the drawee to get his acceptance. If he accepts it, nothing farther is done till the day of payment; and then, if it be paid, the matter is at an end. But, if the drawee will not accept it, then the party is to protest the bill, and send back the protest by the next post. When the time of payment comes, he tenders the bill again; and then the drawee may either pay it or refuse it. If he refuses it, then there is a second protest for non-payment, and the bill itself is returned; and so it is if he accepts it, and afterwards refuses to pay it. From all this, I would infer that there can be no partial protest for non-acceptance; which, as I am informed, is a protest not in the memory of any but one of the notaries public. The words of all protests are: 'I exhibited the original bill to the person to whom directed, and demanded his acceptance thereof.' Now an acceptance of part is not an acceptance thereof, no more than payment of part is a payment of the whole. There is a book which goes by the name of 'Advice concerning Bills of Exchange,' and is esteemed amongst those who are most conversant in these affairs. And, in fol. 33 of that book, it is said that nothing but an acceptance to pay secundum tenorem billæ can deprive the party of the benefit of a protest; and, in fol. 16 of the same book, he puts the case of a bill drawn on A and B, who are not joint-traders, and an acceptance by one only. This,' says he, 'goes for nothing; and the party must protest the bill, as in case of no acceptance.' These are the words of the book; and, by putting the case of two who are not joint-traders, I should apprehend he means that, each being charged with a moiety, the acceptance of one is but an acceptance to pay a moiety, which is but a partial acceptance, and therefore void; and this is explained by the case of Pinkney v. Hall, Salk. 126, where one jointtrader accepted a bill, and it was held to be the acceptance of both, because both were equally liable to pay the whole. And to this purpose likewise is Molloy's 'De Jure Maritimo,' in the chapter concerning bills of exchange.

"If there can be no protest for non-acceptance of part, I would consider how the case would stand in regard to allowing this partial acceptance. The natural and plain consequence of that will be to put it in the power of the drawee to defeat the other of the benefit of protesting a bill for £10,000 by his acceptance to pay one penny only. For this, I would submit that, if the party may take such an acceptance, he must take it. If it will be good, he cannot refuse it; for it is not at his election to charge the drawer, but upon the other's default. The drawee is the person he must first resort to; and, if he refuses, then, and not till then, is there a proper remedy against the drawer; and therefore, in the action against the drawer, the plaintiff must show a protest, which is an endeavor to receive the money of the drawee. Salk. 131.

"But even admitting there may be a partial protest for non-acceptance, yet the inconveniences which will follow, of course, are so great that I hope it shall never be established by the judgment of the court.

"It would be endless to put cases where it has been held that rent-charges and the like cannot be apportioned; and therefore I shall rely entirely upon the reason of the thing, that in this case the contract between the drawer and the person to whom the bill is payable is entire, and not divisible. By this contract, the drawer (and, consequently, the indorsor) subjects himself to an action, if the money be not paid at the time. But though he becomes liable to one action, yet there is no reason that, by transactions between the party to whom the bill is payable and the drawee, tó

which he is not privy, this contract should be branched out into several actions, which will unavoidably be the case of every partial acceptance; for I do not apprehend how this can be reduced to one action by refusing this partial acceptance, and protesting for the whole; because (as I observed before), if the party may take it, he must take it, and can charge the drawer no farther than there is a default in the drawee.

"As, therefore, two actions are the fewest he can be charged with, I would beg leave to instance how he may be charged with a great many: The acceptor will charge him as far as his undertaking; then another for the honor of the drawer (as is usual amongst merchants) may undertake for another part, and, by the same reason, a third and a fourth; and nobody can say where it shall stop. So many different persons may accept for so many different pence; and every one of these has his distinct remedy against the drawer.

"Another inconvenience, which naturally occurs upon this occasion, is that the drawee will insist to have the whole bill delivered up, when he pays but a part only. For, according to the authors who treat of this subject, he can never charge the drawer, when they come to make up their accounts, with more than he has vouchers for under the hand of the drawer. In 'Lex Mercatoria,' 274, it is said that, if the bill be lost, the drawee cannot justify the payment, though he has a letter of advice. And this refutes all the expedients of indorsing part, or giving a special receipt for so much; because, in neither of those cases, will the drawee have any authority to produce under the hand of the drawer. If the drawer then refuses to allow what the other has paid, his only remedy will be to bring his action. And how he will be to maintain it upon the custom of merchants, I must confess myself at a loss to find out; for he will want the necessary evidence to maintain such an action, which is the bill itself that was drawn upon him.

"If this, then, will be the case where he pays the money without taking up the bill, I must contend that, by all the rules of prudence and justice, he may insist to have the whole bill delivered up to him, when he only pays part of it, according to his acceptance.

"Supposing him, then, in possession of the whole bill, I would consider in what a condition we have left the party to whom it was made payable. He must be supposed to have advanced a consideration adequate to the whole sum, and consequently is, in justice, entitled to his whole money of somebody or other. It will be said that he may get what he can of the drawee, and then go back to the drawer for the residue. It is true, he may do so; and the drawer may be a man of so much honor as to pay him every farthing. But what must he do, when he finds he is mistaken in his man; when the drawer, instead of ordering him the money, as he expected, shall tell him: No, you have nothing to produce under my hand; and, if you have been so foolish as to deliver up the bill, you must take it for your pains. I know of no remedy in this case but what would be worse than the disease; and, therefore, the most prudent thing he can do will be to sit down by the loss.

"And this will be so far from being a trick in the drawer, that it will be no more than what every prudent man will do. For if, upon the report of what has been done, he should advance the residue of the money, yet still there is a bill standing out against him for the whole, upon which bill it cannot appear he has paid the money which the drawee had left unpaid. And whether, in that case, he would not afterwards be answerable for the whole, may be proper to be considered.

"I have now done with what I had to offer in maintenance of the negative of the question I proposed to speak to, and shall therefore proceed to take notice of what was hinted at upon the former argument in behalf of the plaintiff in this case.