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 Commentaries on the law of bills of excli 
 
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COMMENTAEIES 
 
 ON THE LAW 01' 
 
 BILLS OF EXCHANGE, 
 
 FOREIGN AND INLAND, 
 
 AS ADMINISTHEED IN 
 
 ENGLAND -AN]),A1ERICA; 
 
 wiTn 
 
 OCCASIONAL ILLUSTRATIONS FROM THE COMMERCIAL LAW OP THE 
 NATIONS OS CONTINENTAL EUROPE. 
 
 By JOSEPH STDRT, LL. D. 
 
 ONE or THE JUSTICES OF THE SUPKEME COUKT OF THE DNITED STATES, 
 AND DANE PKOFESSOR OF LAW IN HAKVAKD UNIVEKBITY. 
 
 " Panllatim ergo et non semel simulque ad earn perfectionem, guam hodie mira- 
 mur, pervenit Negotiatio ista Cambialis." Heineccius, De Camb. cap. 1, J 8. 
 
 " Quamvis vero tot Gentium Civitatumqne Leges Cambiales non per omnia con- 
 venlant, sunt tamen qusedam omnibus commnnia." Ibid. cap. 1, J 13. 
 
 THIRD EDITION. 
 
 BOSTON: 
 LITTLE, BEOWN AND COMPANY. 
 
 1853. 
 
Entered according to Act of Congress, in the year 1853, by 
 
 WILLIAM W. STOET, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 BIVEBSIDE, CAMBBIDOE: 
 PBINTED BT H. O. HOUGHTON ASO COMPANT. 
 
ADVERTISEMENT TO THE SECOND EDITION. 
 
 The present Edition will be found to be considerably 
 enlarged from the last. The Editor has, however, made 
 no other change in the text than to insert the manuscript 
 alterations and additions left by the Author, and to cite in 
 the notes such new cases as have fallen within his obser- 
 vation. 
 
 W. W. Story. 
 
 Boston, Decbmbee, 1846. 
 
ADVERTISEMENT TO THE THIRD EDITION. 
 
 The present Edition of the Commentaries on Bills of 
 Exchange, contains the illustrations and authorities fur- 
 nished by the cases decided in England and America since 
 the publication of the second Edition. With the view of 
 preserving the original text, as left by the Author, the new 
 matter introduced, except merely the names of additional 
 cases, is marked by brackets ; thus, [ ]. 
 
 Charles Sumner. 
 Boston, January, ;1853. 
 
TO 
 
 SIMON GREENLEAF, Esq., LL.D. 
 
 EOTALL PKOFESSOE OF LAW IN HAEVAED UHIVEKSITT. 
 
 My deah Sir, 
 It was my original intention to dedicate to you the 
 entire collection of my Juridical Works, when my labors 
 in the Dane Professorship should be completed. But ad- 
 vancing years admonish me, that the term of my life may 
 not be so far prolonged, as to enable me to reach the full 
 consummation of my purposes. I avail myself, therefore, 
 of the opportunity of dedicating this work to you, as 
 a memorial of our long, uninterrupted, and confidential 
 friendship. We have been coadjutors in the instructions 
 of the Law Department of Harvard University for no brief 
 period of time, and have united, heart and hand, in our 
 endeavors to promote its prosperity and enlarge its useful- 
 ness. I can bear full testimony to the eminent ability, 
 the unwearied diligence, the ample learning, and the con- 
 scientious fidelity with which you have performed all 
 your official duties. The general voice of the public has 
 already awarded to you that tribute of praise, which never 
 fails, first or last, to attend upon high desert ; and to the 
 
"VIU DEDICATION. j 
 
 Royall Professor may be emphatically applied the lan- 
 guage of Cicero : " Is et ipse scripsit multa praeclare, et 
 docuit alios." ^ That you may long continue to occupy 
 the professorial chair with distinguished honor, and add to 
 a reputation, already reposing on the most solid founda- 
 tions, is the earnest wish of 
 
 Your affectionate friend, 
 
 JOSEPH STORY. 
 
 Cambkidge, MasB., January 2, 1843. 
 
 ' Cicero De Clar. Oral, cap. 8. 
 
PREFACE 
 
 In presenting the present Work to the indulgent consi- 
 deration of the public, a few explanatory remarks may 
 seem necessary, inasmuch as the plan essentially differs 
 from that adopted by all the English elementary writers 
 upon the same subject. The subject of Bills of Exchange 
 is here treated entirely distinct from that of Promissory 
 Notes and other Negotiable Securities of a kindred nature. 
 I am aware, that many of the principles of the latter are 
 strictly applicable to the former; and that, therefore, it 
 it may, at first view, be thought a superfluous labor aa 
 well as an unnecessary repetition to discuss them at large 
 in separate volumes. In truth, my attention was first 
 attracted to the great practical inconvenience of uniting 
 and intermixing the doctrines respecting Bills of Exchange 
 and Promissory Notes in one and the same treatise, in the 
 course of my instruction of the Law Students in Harvard 
 University. The excellent work of Mr. Baron Bayley is 
 used in our Lectures as a Text Book ; and, as is well 
 known, the doctrines concerning Bills of Exchange, and 
 those concerning Promissory Notes, are in that work uni- 
 versally intermixed with each other, and the illustrations 
 of those doctrines are constantly and indiscriminately 
 drawn from each source, although they sometimes apply, 
 not only with varied force, but also in an opposite man- 
 ner ; so that it is often found very difficult to make stu- 
 dents completely understand the reasons, either for the 
 
X PREFACE. 
 
 coincidences, or the diversities. Besides ; although many 
 of the doctrines belonging to Bills of Exchange are equally 
 applicable to Promissory Notes, with more or less qualifi- 
 cations and limitations; yet there are many doctrines 
 peculiar to each of them, which cannot, without some 
 violence to a just distribution and orderly arrangement of 
 the materials, find any appropriate place and connection in 
 both. And I cannot but persuade myself that some of 
 the difficulties which occasionally present themselves in 
 the arguments at the bar upon these topics, arise from 
 the confiision necessarily incident to the practice of thus 
 blending authorities and doctrines, which, however cogent 
 in themselves, often have but a remote bearing upon, or 
 analogy to, the points directly in controversy in the case 
 before the court. 
 
 The plan, therefore, which I have adopted, is, to discuss 
 the whole Law, relating to Bills of Exchange, in the pre- 
 sent volume, as a separate and independent treatise ; and 
 in another volume to present to .the learned reader a full 
 review, in a similar method, of the whole law relating to 
 Promissory Notes, Checks, and other Negotiable Instru- 
 ments of a kindred character. In executing this plan, I 
 TiEive availed myself freely of all the English Treatises 
 extant upon the same subject, and especially of the work 
 of Mr. Baron Bayley, which contains a fuU collection of 
 the most important cases, and that of Mr. Chitty, which is 
 very valuable from his great practical experience, and 
 familiar knowledge of the authorities ; and I have occa- 
 sionally made extracts from the crowded pages of the 
 latter, to illustrate more fully than the brevity of my own 
 text would allow, some doctrines and distinctions of an 
 important nature. I have also extended my researches 
 into Fpreign Jurisprudence, and I have examined the 
 works of some of the most distinguished Foreign Jurists, 
 
PREFACE. XI 
 
 and especially the ■writings of Savary, Pothier, Pardessus, 
 and Heineccius. They are highly useful in stating general 
 principles, but rarely extend their discussions into the 
 more minute ramifications of those principles which enter 
 into the practical details of the daily business of com- 
 mercial life. They expound the theory, and often discuss 
 the abstract propriety of particular rules and exceptions ; 
 and awaken a spirit of inquiry, although, perhaps, they do 
 not always satisfy our judgment by their results. But it 
 is to the elaborate judgments of the tribunals of England 
 that we must look for the most copious, exact, and minute 
 instruction upon this important subject, and for thorough 
 practical adaptations of general principles to the varied 
 exigencies of human life, and the due administration of 
 civil justice. America received from the parent country 
 the materials, out of which she has constructed her own 
 system of Commercial Jurisprudence, and her labors have, 
 as we trust, added to the common stock some .valuable 
 illustrations and some, solid doctrines. If the remark of 
 Scaccia, made more than two hundred years ago, in the 
 comparative infancy of commerce was then true, it applies ' 
 with far more force to us in the present age. Quinimo, 
 Gambia adeo sunt Reipublicse utilia et necessaria, ut si 
 Gambia cessarent, omnia pene mercaturee officia dissipa- 
 rentur, ac destituerentur.^ 
 Cambridge, January 2, 1843. 
 
 1 Scaccia, Tract, de Coram. ^ 1, Quest. 6, § 14, p. 130 (edit. 1664.) 
 
CONTENTS. 
 
 Pago 
 
 Index to Cases Cited *^ 
 
 CHAPTER I. 
 Origin and Nature of Bills of Exchange . . . .1-27 
 
 CHAPTER II. 
 Different Kinds of Bills of Exchange . . . .28-44 
 
 CHAPTER III. 
 Requisites of Bills of Exchange . . . 45-92 
 
 CHAPTER IV. 
 Competency and Capacity of Parties to Bills . . 93 - 128 
 
 CHAPTER V. 
 
 Rights, Duties, and Obligations of Parties to Bills of 
 
 Exchange 129-207 
 
 CHAPTER VI. 
 Bills of Exchangp — Consideration of . . . 208-231 
 
 CHAPTER VII. 
 Of the Transfer of Bills of Exchange . . .232-268 
 
 CHAPTER VIII. 
 Presentment of Bills for Acceptance . . . 269-318 
 
 B. OP EX. 5 
 
XIV CONTENTS. 
 
 CHAPTER IX. 
 Non-acceptance — Proceedings on . . 319-397 
 
 CHAPTER X. 
 Presentment for Payment ... . 398-481 
 
 CHAPTER XL 
 Non-payment — Proceedings on ... . 482 - 529 
 
 CHAPTER XII. 
 
 Of Payments and other Discharges of Parties to Bills < 
 
 of Exchange 530-580 
 
 CHAPTER XIII. 
 Guaranty of Bills, and Letters of Credit . . . 581-608 
 
 CHAPTER XIV. 
 Inland Bills 609-630 
 
INDEX TO CASES CITED. 
 
 Tbc references are to the Sections. 
 
 Section 
 Abal V. Holmes 428 
 
 Abat V. Ryon 304 
 
 Abbott V. Bayley 91 
 
 Abrahams v. Skinner 222 
 
 Acheson u. Fountain 210 
 
 Ackland v. Pearce 189, 190 
 
 Adams v. Gregg 252, 266 
 
 V. Jones 203, 457, 458, 462 
 
 V. Oakes 360 
 
 Agan V. McMauus 314 
 
 Agrey «. Davenport 436 
 
 Alexander v. Burchfield 471 
 
 Alexandria, Bank of, v. Swann 290 
 Alderson v. Pope 392 
 
 V. Eobsou 448 
 
 Allaire v. Hartshorne 184, 187, 188, 
 
 192 
 Allen V. Dockwra 
 V. Edwardson 
 
 V. Mawson 
 
 I'. Rightmere 
 
 V. Williams 
 
 AUport V. Meek 
 Alves V. Hodgson 
 American Bank v. Doolittle 
 Amory v. Merryweather 
 
 325 
 
 291, 299 
 
 33, 35, 58 
 
 215 
 
 246 
 
 262 
 
 134, 137 
 
 431 
 
 187 
 
 Anderson v. Cleveland 252, 266, 325 
 
 V. Drake 235, 351, 352 
 
 V. Hicks 
 
 V. Heath 
 
 246 
 247 
 
 Anderton v. Beck 326 
 
 Andrews v. Boyd 317 
 
 V. Franklin 47 
 
 u.Pond 132,134,135, 
 
 147 to 149, 220 
 
 • V. His Creditors 
 
 Ansell V. Baker 
 Anson v. Thomas 
 Anthon v. Fisher 
 Antoine v. Morehead 
 Appleby t;. Biddnlph 
 
 99. 
 
 132 
 431 
 228 
 101 
 101 
 46 
 
 Section 
 
 Appleton V. Sweetapple 471 
 
 Archer v. Bank of England 207, 
 
 210,211 
 
 Armstrong v. Toler 136 
 
 — '- u. Christiani 301 
 
 Arnott V. Redfern 148 
 
 Arnould v. Revoult 92, 128, 196 
 Arundel Bank v. Goble 425 
 
 Ashley v. Bell 81 
 
 Aspinwall v. Meyer 79 
 
 Atkinson v. Manks 43 
 
 Attorney General v. Life & Fire 
 
 Ins. Co. 79 
 
 Auriol V. Thomas 321, 407 
 
 Averel v. Lyman 431 
 
 Avery v. Pixley 330 
 
 V. Stewart 338 
 
 Ayer v. Hutohins 187 
 
 Aylett V. Aston 90 
 
 Aymar v. Beers 228, 231 
 
 U.Sheldon 142,177,296,366 
 
 Ayrey v. Fearnsides 43 
 
 B. 
 
 Bacheller v. Priest 193, 231, 304 
 Backhouse v. Harrison 416 
 
 Backus V. Shipherd 375 
 
 Bacon v. Searlea 269 
 
 Bailey t). Baldwin 426,427 
 
 V. Porter 301 
 
 Bain v. Ack worth 398 
 
 Baker v. Birch 306, 316, 376 
 
 U.Gallagher 311,320,367 
 
 Baldwin, ex parte 224 
 
 V. Richardson 308 
 
 Ballingalls u. Gloster 60,108,176, 
 204, 321 
 Banbury v. Lissat 47, 63, 239 
 
 Bancroft v. Hall 290, 291, 295, 300 
 Bank of Rochester v. Gray 283 
 
XVI 
 
 INDEX TO CASES CITED. 
 
 Section 
 Bank of Commerce v. Union 
 
 Bank 113,264 
 
 U. States V. U. States 399, 
 
 4i5 
 
 Vergennes v. Cameron 301 
 
 Banks v. Ebstin 198, 360 
 Barber t'. Backhouse 184, 187 
 V. Richards 203, 207, 220 
 
 Barclay v. Bayley 
 
 ex parte 
 
 Baring v. Lyman 
 Barker v. Clark 
 V. Parker 
 
 Barlow v. Bishop 
 Barnett v. Braudoo 
 Barnwell v. Mitchell 
 Barrinaton & Barton, in the Mat> 
 
 328, 349 
 303 
 462 
 297 
 
 365, 374 
 92, 128, 196 
 192 
 299 
 
 ter of 
 Barton v. Baker 
 Bartrum v. Caddy 
 Bartsch v. Atwater 
 Bass i\ Clyde 
 Bateman v. Joseph 
 
 109 
 
 314,346,374 
 
 223 
 
 161,163 
 
 262 
 
 235, 299, 308, 
 
 351 
 
 223, 
 
 Bauerman V. Radenius 
 Baven v. Stoddard 
 Baxter v. Lord Portsmouth 
 Bay V. Coddington 
 Bayard v. Shunk 
 Bayou v. Vavasseur 
 Beard v. "Webb 
 Beardsley v. Baldwin 
 Beauchamp v. Cash 
 Beck V. "Robley 
 Beckwith v. Correll 
 Bedford v. Deakin 
 Beeching v. Gower 
 
 Bell V. Bruen 
 
 V. Ingestre 
 
 V. Quin 
 
 Bellasis v. Hester 
 
 Belmont Bank u. Patterson 351 
 
 Belder v. Lamb 
 
 Bennet v. Farnell 
 
 Bentick v. Dorrien 
 
 Bernard v. Barry 
 Berkshire Bank v. Jones 
 Berry v. Robinson 
 
 V. Usher 
 
 Betts V. Kempton 
 
 Beveridge v. Burgis 235, 299 
 
 Beverly v. Lincoln Gas Light 
 
 Co. 79 
 
 Bickerdike v. Bolman 311,367 
 
 Bigelow V. Wilson 329 
 
 17 
 
 398 
 
 106 
 
 192 
 
 225 
 
 139 
 
 90 
 
 46 
 
 301 
 
 269 
 
 194 
 
 426,427,431 
 
 111,225,354, 
 
 472,475 
 
 463 
 
 203 
 
 186 
 
 237, 329 
 
 352 
 
 298 
 
 200 
 
 252 
 
 157 
 
 375 
 
 325 
 
 443 
 
 93 
 
 308 
 
 240, 
 
 Bignall v. Andrews 
 Bignold V. Waterhouse 
 
 Bilbie v. Lumley 
 Bire v. Moreau 
 Bird V. McDowell 
 Bishop V. Hayward 
 V. Young 
 
 Sectiuii 
 312 
 305, 312, 
 392 
 320 
 24 
 313 
 218 
 16, 63 
 Black V. Peele" 252, 267 
 
 Blackburn, ex parte 109, 225 
 
 Blackham v. Doren 311, 369 
 
 Blackie v. Pedding 348 
 
 Blakely v. Grant 215, 299, 308 
 
 Blanchard v. Hilliard 329 
 
 1^. Russell 135, 158, 168, 
 
 169 
 Bland v. Ryan 210 
 
 Blankenhagan v. Blundell 16, 64 
 Blessard v. Hirot 320 
 
 Blogg u. Pinkers 181,184 
 
 Bloxham, ex parte 192 
 
 Boehm v. Campbell 25 
 
 V. Stirling 220, 223, 472 
 
 — V. Garcias 240 
 
 Bolton V. Dugdale 42, 43, 46 
 
 , ex parte 249 
 
 V. Richards 108 
 
 Bomley v. Frasier 381 
 
 Bond V. Farnham 351, 374 
 
 Boot u. Franklin 321,353 
 
 Borradaile v. Lowe 320, 373 
 
 Bosanquet v. Anderson 262 
 
 V. Dudman 183, 192,220 
 
 Boucher v. Lawson 136, 137 
 
 Boultbee u. Stubbs 318,425 
 
 Boulton V. Welsh 301, 390 
 
 Boussmaker, ex parte 99 
 
 Bowyer v. Bampton 189, 190 
 
 Bowers v. Hurd 181 
 
 Bowes 11. Howe 326, 476 
 
 Bowie V. Duvall 356 
 
 Boyce v. Edwards 249, 462 
 
 Bracey v. Carter 184 
 
 Brackett ». Norton 132 
 
 Bradford v. Farrand 165 
 
 V. Hubbard 433 
 
 Bradley v. Carey 458, 462 
 
 V. Davis 391 
 
 Braham v. Bubb 46,47 
 
 Braithwaite v. Gardiner 85 
 
 Bramah v. Roberts 188, 192 
 
 Brander v. Phillips 420, 421 
 
 Brandon v. Nesbitt 101 
 
 Brathan v. West 190 
 
 Bray v. Hadwen 290, 293 
 
 Braynard v. Marshall 158, 166 
 
INDEX TO CASES CITED. 
 
 XVll 
 
 Section 
 Bridges V. Beny 325, 326 
 
 Brien v. Maynard 426 
 
 Bright V. Purrien ,321 
 
 Brigham v. Marean 198, 224 
 
 Brind V. Hampshire 203 
 
 Bristol V. Sprague 192 
 
 V. Warner 178 
 
 Britten u. Webb 218 
 
 Brooks V. Stuart 431 
 
 Brough V. Parkins 281, 302, 468 
 
 ,v. Perkins 273 
 
 Broughton v. Manchester Water 
 
 Works Co. 79 
 
 Brown v. Gilman 54 
 
 V. Joddrell 106 
 
 V. Kewley 109 
 
 V. Thornton 137,277 
 
 V. Barry 273 
 
 u.Maffey 311,312,314,370 
 
 u. Davies 187,220 
 
 V. Carr 425, 432 
 
 V. Lusk 342 
 
 V. Williams 428 
 
 V. Butchers' & Drovers' 
 
 Bank 33, 53 
 
 Browner v. Appleby 183 
 
 Browning v. Kinuear 235, 299, 308 
 Bromage v. Lloyd 203 
 
 Bruce v. Bruce 111, 225 
 
 V. Warwick 127 
 
 Brunetti u. Lewin 121,256 
 
 Brush V. Beeves' Administrator 200 
 
 V. Scribner 192 
 
 Buckner v. Finley 23, 465 
 
 BuUer v. Crisp 35, 47 
 
 V. Creps 467 
 
 Bullet II. Bank of Penn. 448, 449 
 Burbridge v. Manners 223,290, 382, 
 417, 469 
 Burchall v. Slocock 60 
 
 Burghart v. Hall ' 84 
 
 Burrill V. Smith 426, 428 
 
 Burrough v. Moss 92, 128, 196, 198, 
 
 220 
 Burrows u.Jemino 134, 140, 164, 265 
 Bush V. Livingston 190 
 
 Bussard v. Levering 287, 338, 382 
 Buxton u. Jones 350,351 
 
 Caldwell v. Cassady 356 
 
 Callaghan v. Aylett 239 
 
 Callow V. Lawrence 223, 269 
 b* 
 
 Section 
 
 Camidge v. Allenby 108, 109, 111, 
 
 225,318,325, 326,472,476 
 
 Campbell v. PettengiU 240, 272, 
 
 311 
 V. Webster 280 
 
 Canal Bank v. Bank of Albany 262, 
 263, 412, 451 
 Caneppa v. Larcio 242 
 
 Canfield v. Vaughan 215 
 
 Cape Fear Bank v. Leawell 388, 
 
 390 
 Carey v. Gooding 443 
 
 Carkey, ex parte 304 
 
 Carlos V. Pancourt 16,46 
 
 Carnegie v. Morrison 249, 43 1 , 462 
 Caroline, The 99 
 
 Carpenter v. Marnell 81 
 
 Carrick v. Vickery 197, 412 
 
 Carroll v. Blenco 91 
 
 V. Upton 157, 298, 351 
 
 Carr v. Shaw 171 
 
 Carruthers v. West 191 
 
 Carstairs v. RoUeston 270, 428, 432 
 Carter v. Burley 288, 291 a. 294, 
 382, 384 
 
 V. Aunders 74 
 
 V. Union Bank 276 
 
 Cartwright v. Williams 253 
 
 Cash «. Kenuion 148, 151 
 
 Cassel V. Dows 209, 249, 462 
 
 Castle V. Burditt 329, 330 
 
 Cast V. Rees 93 
 
 Catesby's case 143, 330 
 
 Catskill Bank v. Stall 297, 351 
 
 Caudell v. Shaw 90 
 
 Caunt V. Thompson 376, 377 
 
 Cayuga Banku. Hunt 291, 346, 349, 
 362, 379, 389 
 Central Bank «. Davis 317 
 
 Chadwick v. AUeu 55, 60 
 
 Chalmers v. Lauion 188 
 
 Chamoine v. Fowler 303 
 
 Champion v. Plummer 54 
 
 Chapman «. Lipscombe 299, 305, 
 
 308 
 
 V. Keene 304 
 
 V. Robertson 143 
 
 V. British Guiana 
 
 Bank 391 
 
 Charles v. Marsden 191 
 
 Charters v. Caimes 132, 163 
 
 Chaters v. BeU 208, 276, 278 
 
 Chaworth v. Beech 204 
 
 Cheek v. Eoper 229, 350 
 
 Cheetham v. Ward 431 
 
 Chewning v. Gatewood 301 
 
XVUl 
 
 INDEX TO CASES CITED, 
 
 Chenango Bank :;. Root 
 Chesmer v. Noyes 
 Chick V. Pilsbury 
 Childs V. Monins 
 Churchill v. Gardner 
 Church V. Barlow 
 City Bank of Columbus v 
 
 Beach 
 Clark V. Cock 
 
 V. Pigot 
 
 V. Russell 
 
 V. Eldridge 
 
 V. Ricker 
 
 Section 
 389 
 277 
 287, 291 
 74 
 203 
 292 
 
 V. Sigourney 
 
 192 
 
 242, 244, 462 
 
 210, 2-24 
 
 273 
 
 391 
 186, 187 
 
 203 
 
 Clarke u. Benton Manufac. Co. 61 
 
 V. Cochran 
 
 V. Devlin 
 
 V. Nowell 
 
 V. Perceval 
 
 V. Sharpe 
 
 V. Wilson 
 
 Claridge v. Dalton - 
 Clay V. Oakley 
 Clayton v. Gosling 
 Clegg V. Cotton 
 
 V. Levy 
 
 Clio, The 
 Cobham v. Upcott 
 Cockell V. Gray 
 Cockerell v. Barber 
 Cocks V. Borradaile 
 V. Masterman 
 
 Coddlngton v. Davis 
 
 Coggill V. American Exchange 
 
 137 
 
 425,426 
 
 434 
 
 46 
 
 299 
 
 432 
 
 284,311,428 
 
 297 
 
 47,63 
 
 311,316,376 
 
 137,159 
 
 103 
 
 458 
 
 143 
 
 150 
 
 208 
 
 451 
 
 276,320,371 
 
 Bank 
 Colcott V. Haigh 
 Colehan v. Cooke 
 Coleman v. Sayer 
 CoUins V. Butler 
 
 V. Martin 
 
 CoUis V. Emmett 
 
 262,412 
 
 428,432,434 
 
 46,47 
 
 228,329,342 
 
 235, 346 
 
 178,188 
 
 25, 53, 56, 200, 
 
 343, 250 
 
 Colt B.Noble 292 
 
 Columbia, Bank of «. Lawrence 295, 
 
 297 
 
 V. Pattison, 
 
 Admr. 79 
 
 Combe v. Ingram 63 
 
 V. Wolfe 425, 432 
 
 Commercial Bank v. Cunning- 
 ham • 432 
 Commonwealth v. Mauley 92 
 Cone V. Baldwin 194 
 Conner v. Bellamont 148 
 
 V. Martin 196 
 
 Conroy v. Warren 187, 313, 367 
 
 Section 
 
 Cook V. French 301 
 
 Coolidge V. Payson 249, 462 
 
 Cooper V. Earl of Waldgrave 181, 
 
 168,164,177 
 
 V. Le Blanc 262 
 
 Comey v. De Costa 316, 374 
 
 Cornu V. Blackburne 101 
 
 Corp V. M'Comb 382 
 
 Coryu. Scott 284, 311,312,314,369 
 Cosmopolite, The 103 
 
 Cotes V. Davis 92, 128 
 
 Cowles V. Harts 301 
 
 Cowperthwaite v. SheflSeld 301, 303 
 Cox V. Troy 252 
 
 Cramlington v. Evans 63 
 
 Crawford v. Millshaugh 426, 431 
 Crawley v. Crowther 60 
 
 Crawshay v. Collins 197 
 
 Critchlow V. Parry 110, 412 
 
 Crocker v. Getchell 304 a. 
 
 Cromwell v. Hynson 235, 302, 305, 
 
 362 
 Crook J7. Jadis 416 
 
 Crosse v. Smith 291, 300 
 
 Crossen v. Hutchinson 346 
 
 Cruchley v. Clarance 53, 54, 56, 222 
 
 V. Mann 53, 54, 242 
 
 Cruger v. Armstrong 187 
 Cuming v. French 320 
 Cutts u. Perkins 250,413 
 Cuyter«.Nellis 297 
 V. Stevens 293, 337 
 
 D. 
 
 Danbury v. Lisset 46 
 
 Daniel v. Cartony 190 
 
 Darbishire v. Parker 285, 286, 288 
 to 290, 295, 308 
 184, 187 
 101 
 425 
 431 
 447 
 43,46,63 
 35,58,121,254 
 348, 448 
 
 Dawkes v. Earle of Dolovaine 46 
 
 184 
 
 431 
 
 90, 93 
 
 357 
 
 46 
 
 46 
 
 Darnell v. Williams 
 Daubur v. Morshead 
 Davey v. Prendergrass 
 David V. EUiee 
 Davies v. Dodd 
 
 V. Wilkinson 
 
 Davis V. Clark 
 V. Todd 
 
 Day V. Nix 
 Dean v. Newhall 
 
 V. Richmond 
 
 De Bergareche v. Pillin 
 De Bernales v. Fuller 
 De Forest v. Frary 
 Dehers v. Harriot 35, 59, 209, 228, 
 279, 342 
 
INDEX TO OASES CITED. 
 
 XIX 
 
 Section 
 De La Chaumette v. Bank of 
 
 England 169,171,174 
 
 De La Courtier v. Bellamy 37 
 
 De Launey u. Mitchell 187 
 
 Delegal v. Nay lor 150 
 
 Delvalle v. Plomer 139 
 
 Dennis v. Morris 306, 318, 320 
 
 Denniston u. Bacon 187 
 
 V. Imbre 314 
 
 Denston v. Henderson 321 
 
 Depau V. Humphreys 137, 153 
 
 Derry v. Duchess of Mazarine 91 
 De Silva u. Fuller 417 
 
 De Tastet v. Baring 401 
 
 V. Crousillat 371 
 
 De Wolf V. Johnson 148 
 
 V. Murray 277, 301 
 
 Dickson, ex parte 109 
 
 Digberty v. Darnell , 43 
 
 Dingwall V. Dunster 252, 266, 325 
 Dobre v. Eastwood 294, 300 
 
 Dollfus V. Frosch 209, 311, 313, 327, 
 
 367 
 Don V. Lippman 139, 146, 147, 158 
 Douglas V. Wilkinson 54, 60 
 
 Douglass V. Reynolds 3 73 
 
 Down V. Hailing 194, 220, 416 
 
 Draper v. Jackson 92, 93 
 
 Drayton v. Dale 81 
 
 Dugan u. United States 209,415 
 Duhammel v. Pickering 101 
 
 Duncan v. Course 23 
 
 V. Scott 185 
 
 Duruford v. Patterson 342 
 Dutton V. Pool 462 
 D wight V. Scovill 376 
 Dyer v. Hunt 132, 134 
 , ex parte 242 
 
 E. 
 
 Eagle Bank v. Chapin 288, 293 
 
 Eagle Bank of New Haven v. 
 
 Smith 111 
 
 East India Co. v. Tritton 1 10, 11 1, 
 
 225 
 Eastley V. Crockford 194 
 
 Eastwood V. Kenyon 182 
 
 Eaton V. Bell 74 
 
 Edes V. Bury 33, 35 
 
 Edie V. East India Co. 210 
 
 Edwards v. Davis 90 
 
 y. Dick 190 
 
 V. Weeks 266 
 
 — V. Jones 188 
 
 Elford V. Teed 236, 328, 349 
 
 Section 
 Elkins u. East India Co. 148,150 
 Elliot V. Cowper 53 
 
 Ellis V. GaUndo 252, 266, 268 
 
 V. Ellis ■ 43 
 
 Emly V. Lye 109, 225 
 
 England Bank of u. Newman 200 
 English V. Darley 270, 425, 428, 
 429,435,436 
 Esdaile v. Sowerby 318, 326, 346 
 Etting V. Schuylkill Bank 294 
 
 Evans v. Cramlington 197, 214, 414 
 
 V. Drummond 431 
 
 V. Gee 366 
 
 V. Gray 163 
 
 V. Kymer 187 
 
 K.Lewis 58 
 
 U.Smith 192 
 
 V. Underwood 47 
 
 Exon V. Russell 
 
 F. 
 
 Fairlie v. Herring 
 Faithorne v. Blaquire 
 Fanning v. Consequa 
 Farnum 11. Fowle 
 Farquhar v. Southey 
 Feltmaker's Co v. Davis 
 Fenby v. Pritchard 
 Fenn v. Harrison 
 Fentum v. Pocock 252, 
 
 34 
 
 Ferguson v. Flower 
 Ferris v. Bond 
 Field V. Nickerson 
 Firth V. Thrush 
 Fish V. Jackman 
 Fisher v. Evans 
 
 V. Pomfret 
 
 Fisk V. Cox 
 Filler v. Morris 
 Fleming v. Simpson 
 Fletcher v. Froggart 
 V. Heath 
 
 299. 
 
 Flindt V. Waters 
 Foden et al. v. Sharp 
 Fogg V. Sawyer 
 Forbes v. Cochrane 
 Ford V. Beech 
 Forster v. Jurdison 
 Foster v. Fuller 
 Francis v. Rucker 
 V. Wigswell 
 
 398, 
 
 Franklin, The 
 
 V. Verbois 
 
 Freakley v. Fox 
 
 244 
 
 90 
 
 148 
 
 346 
 
 252, 266 
 
 462 
 
 192 
 
 109 
 
 253,268, 
 
 427,432 
 
 139 
 
 46 
 
 231, 325 
 
 308,320 
 
 297 
 
 299 
 
 56,210 
 
 181 
 
 386, 388 
 
 185 
 
 320 
 
 253 
 
 99 
 
 356 
 
 419 
 
 135 
 
 178 
 
 426 
 
 74 
 
 407,462 
 
 90 
 
 99 
 
 351 
 
 443 
 
XX 
 
 IXDEX TO CASES CITED. 
 
 tSection 
 Freakley v. Fox 443 a. 
 
 Frederick v. Cotton 56 
 
 Free v. Hawkins 110,262,317,371 
 Freeman v. Boynton 235,327,351 
 French u. Price •431 
 
 French's Ex'rs v. Bank of Co- 
 lumbia 311,314,367,377 
 Freyj). Kirk 165 
 Fry U.Hill 231,325 
 Fuller V. McDonald 371, 373 
 Furnisv. Gilchrist 79, 192 
 Furse «. Sharwood 301,390 
 
 G. 
 
 91 
 
 33 
 
 355 
 
 372 
 
 84 
 
 280, 373 
 
 56 
 
 317 
 
 204 
 
 390 
 
 37 
 
 194,416 
 364 
 357 
 201 
 185 
 329 
 432 
 
 Goodall V. Dolley 
 Goodhall v. PolhiU 
 Goodman i>. Harvey 
 
 Goodnow V. Smith 
 Goodrich v. Gordon 
 Goostrey v. Mead 
 Goss V. Nelson 
 Gould V. Armstrong 
 V. Robson 
 
 Gaillon v. L'Aigle 
 Gaither v. Farmers' and Me- 
 chanics'' Bank 190 
 Gale V. Kemper's Heirs 356 
 
 V. Walsh 273, 302 
 
 Galers v. Maderley 93 
 
 Gallagher v. Roberts 300* 
 
 Galway, Lord v. Mathewson 185 
 Gantt V. Mackenzie 408 
 
 Gardner v. Gardner 90 
 
 Garforth v. Bradley 9 3 
 
 Garland v. Salem Bank 346, 3 73 
 Garnett v. Woodcock 236, 291, 328, 
 
 349 
 Gascoigne v. Smith 184 
 
 Geary v. Physic 33, 204 
 
 Gee U.Brown 237 
 
 Geill D. Jeremy 290,291,293 
 
 Geneva Bank v. Hewlett 297 
 
 Gerome v. Whitney 
 Gibb V. Mather 
 Gibbs u. Cannan 
 
 V. Merrill 
 
 Gibbon v. Coggan 
 Gibson u. Hunter 
 
 V. Scott 
 
 V. Powell 
 
 Gilbert v. Dennis 
 Giles V. Bourne 
 Gill V. Cubitt 
 Gillard v. Wise 
 Gillatt V. Averill 
 Gitson V. Minot 
 Gladstone v. Hadman 
 ■ Glassington v. Kawlins 
 Glendenning, ex parte 
 Gloucester Bank v. Worcester 426, 
 
 428 
 Goddard v. Merchant's Bank 262, 
 
 451 
 Goddin v. Shipley 
 
 Goupy V. Harden 
 Gowan v. Jackson 
 
 Grandin v. Le Roy 
 Grant v. Da Costa 
 
 V. Healey 
 
 V. Naylor 
 
 V. Vaughan 
 
 V. Welchman 
 
 Graves v. Dash 
 Gray v. Cooper 
 
 V. Milner 
 
 V. Palmer 
 
 Green v. Davis 
 
 V. Sarmiento 
 
 Greenway, ex parte 
 V. fiindley 
 
 Greenwood v. Curtis 
 Gregory w. Fraser 
 V. Paul 
 
 Grew V. Bevan 
 
 V. Burditt 
 
 Griffith V. Read 
 Grimshaw v. Bender 
 Griswold v. Waddington 
 Grosvenor v. Stone 
 Groton V. Dallhein 
 Grugeon v. Smith 
 Guernsey v. Barnes 
 Guinn v. Roberts 
 Gunson v. Metz 
 
 H. 
 
 Hague V. French 
 Haley v. Lane 
 Hall V. Franklin 
 
 V. Hale 
 
 V. Wilcox 
 
 V, Rogers 
 
 Halstead v. Skelton 
 
 Section- 
 
 312,320,367 
 
 124 
 
 193,194,392, 
 
 416 
 
 431 
 
 249 
 
 302 
 
 46,47 
 
 182 
 
 425,436 
 
 76,214,236 
 
 231,305,312, 
 
 392 
 
 191 
 
 63 
 
 151,152 
 
 58 
 
 62, 188, 207, 
 
 416 
 
 184 
 
 321,407 
 
 85,127 
 
 35, 58 
 
 262 
 
 55 
 
 165 
 
 S48, 448 
 
 280 
 
 135 
 
 185 
 
 91 
 
 185 
 
 187 
 
 420 
 
 407 
 
 99, 105 
 
 311 
 
 346 
 
 301 
 
 198,224 
 
 43 
 
 373 
 
 37 
 
 128, 188 
 
 82 
 
 194 
 
 430, 432 
 
 305 
 
 355 
 
 V. Mayor of New York 79 
 
 Halleday v. McDougal 277 
 
 Hallet V. Holmes 427 
 
 Hallifaxu.Lyle 127,261 
 
INDEX TO CASES CITED. 
 
 XXI 
 
 Section 
 Hammatt v. Wyman 431 
 
 Hammond v. Dufrene 311 
 
 Hammonds u. Barclay 413 
 
 Hankley v. Jones 82 
 
 Hansard v. Kobinson 325, 348, 419, 
 
 448 
 Hanson v. Stetson 317 
 
 Hard's case 16 
 
 Harley v. Thornton 235 
 
 Harmer v. Steele 266, 267, 443 a. 
 Harris v. Clark 299 
 
 V. Robinson 299, 308 
 
 Harrison v. Close 431 
 
 V. Constadd 428 
 
 V. Courtauld 268 
 
 V. Sterry 139 
 
 V. Ruscoe 303, 304 a. 
 
 Harrisburg Bank u. Meyer 187 
 
 Hartley v. Case 301 
 
 i\ Wilkinson 46 
 
 Harvey v. Archbold 149 
 
 V. Kay 35, 59 
 
 B.Martin 246 
 
 Hatch V. Trayes 16, 63 
 
 Hatehett v. Baddeley 90, 91 
 
 Haussolier v. Hastrinok 47 
 
 Havens v. Huntington 220, 223 
 Hawkes v. Salter 290, 291, 293 
 
 V. Saunders 182 
 
 Hawkey v. Borwick 357 
 
 Havfkins v. Cardy 207 
 
 Haydock v. Lynch 46 
 
 Hayes u. Warren 182 
 
 V. Caulfield 203 
 
 Hayling v. Malhall 428 
 
 Haynes v. Birks 285, 288, 291, 292, 
 
 293,318,469 
 Hayward v. Perrin 34 
 
 Haywood v. Watson 183, 191 
 
 Healey v. Gorman 148 
 
 Heath, ex parte 310 to 312, 314, 369, 
 
 370 
 Heathcote v. Crookshanks 266 
 
 Hedger v. Stevenson 301 
 
 Hemmings v. Eobinson 262 
 
 Henderson v. Apple ton 476 
 
 V. Benson 189, 190 
 
 Hendricks v. Franklin 407 
 
 Henning v. Brook 269 
 
 Henry v. Jones 329 
 
 ■ V. Lee 291 
 
 Hensehel v. Mabler 42, 43, 50 
 
 Hepburn v. Toledano 352 
 
 Heylin v. Adamson 204, 381 
 
 Hicks V. Brown 153, 154, 366 
 
 Highmore v. Primrose 63 
 
 Section 
 Hill V. Halford 34, 46 
 
 V. Lewis 60, 108, 199, 202 
 
 V. Martin 3 1 1 
 
 V. Read 434 
 
 Hills V. Bannister 74 
 
 Hilton V. Shepherd 234, 291, 308 
 Hine V. Alleby 350, 352 
 
 Hindsdale v. Bank of Orange 448, 
 
 449 
 
 Hinton's case 60 
 
 H itchcock V. Humphrey 305,372 
 
 Hoare v. Cazenove 121, 123, 125, 
 
 254, 256, 261, 344, 363, 396, 423 
 
 B.Graham 317 
 
 Hodges u., Stewart 16,60,204 
 
 Hoggattw. Bingaman 297 
 
 Hoffman, ea; parte 398 
 
 B.Smith 311 
 
 Hoffnung, The 103 
 
 Holbrow B. Wilkins 305 
 
 Holdsworth b. Hunter 6 7, 226 
 
 Holeman v. Hobson 188 
 
 Holford V. Blatchford 1 2, 1 7 
 
 HoUiday B. Atkinson 178,181,184 
 
 V. McDougal 23 
 
 Holmes b. Blogg 84, 85 
 
 B. Kerrison 228 
 
 346 
 192 
 
 Homes v. Smith 191, 338 
 
 Hone B. Allen 183 
 
 Hopkirk B. Page 234, 283, 286, 308, 
 311,327 
 Hordern v. Dalton 295 
 
 Horfbrd v. Wilson 320 
 
 Horn blower v. Proud 183 
 
 Hosford B. Nichols 148 
 
 Houghton B. Page 122, 134, 148 
 Houlditch B. Cauty 301 
 
 Houriet v. Morris 103 
 
 Howard b. Chapman 419 
 
 B.Ives 283,288,290,292, 
 
 299, 303, 304, 338 
 
 B. Oakes 93 
 
 Howden v. Haigh 430 
 
 Howes V. Bigelow 93 
 
 Hoyt V. Lynch 242 
 
 Hubbard v. Jackson 223 
 
 Hubbly B. Brown 425 
 
 Hunt B. Bridgham 432,436 
 
 V. Holden 330 
 
 B. Pish 192 
 
 B. Wadleigh 326, 346 
 
 Hunter, ex parte 53 
 
 Hussey b. Jacob ' 7 
 
 Hyde B. Price 90 
 
 ■ B. 
 
 • B. Smith 
 
XXII 
 
 INDEX TO CASES CITED. 
 
 Imeson, ex parte 43 
 
 Indian Chief, The 99 
 
 Ingram v. Foster 237 
 
 Innes v. Dunlop 1 73 
 
 Ireland, Bank of, v. Beresford 191, 
 253,268,428,432 
 
 w.Kip 297 
 
 Isaac V. Daniel 427 
 
 Jacaud v. French 
 Jackson v. Hudson 
 
 V. Newton 
 
 V. Pigot 
 
 V. Richards 
 
 V. AVarwick 
 
 James v. Badger 
 
 V. Catherwood 
 
 Jameson v. Swinton 
 Jarvis v. St. Croix Manf. Co. 
 Jeffrey v. McTaggart 
 Jenks V. Doyleston 
 Jenkins v. Morris 
 Jennison v. Stafford 
 Jenny v. Earle 
 Jeune v. Ward 
 Johnson v. Collins 
 
 V. Kennison 
 
 V. Kennion 
 
 Jolly V. Young 
 Jones u. Ashburnham 
 
 V. Darch 
 
 V. Fales 
 
 V. Fort 
 
 V. Hibbert 
 
 V. Jones 
 
 ». Ryde 
 
 V. Savage 
 
 V. Simpson 
 
 V. Thorn 
 
 V. Whitter 
 
 V. Broadhurst 
 
 V. Hibbert 
 
 Jonge Pioter, The 
 Joscelyn u. Ames 
 Joselyn v. Lasserre 
 V. Lacier 
 
 392,431 
 
 58, 122, 254 
 
 325 
 
 250 
 
 346 
 
 184,187 
 
 436 
 
 137,159 
 
 290,303,304 
 
 295 
 
 173 
 
 328 
 
 251 
 
 178 
 
 46 
 
 246, 248 
 
 17,249,462 
 
 207 
 
 269 
 
 330 
 
 458 
 
 84, 85, 127 
 
 43 
 
 360 
 
 187 
 
 63 
 
 no, 111,225 
 
 320 
 
 42 
 
 197 
 
 199 
 
 141,269 
 
 188 
 
 99 
 
 199 
 
 35,69 
 
 46 
 
 43 
 
 99 
 
 Judah V. Harris 
 
 Julia, The 
 
 Julian v: Scholbrooke 239, 240, 242 
 
 Juniata W.Hall 346,376 
 
 Kaskaskia Bridge Co. v. 
 
 Shannon 
 Kay V. Duchess de Pienne 
 Keane ». Boycott 
 Kearney v. King 
 Kearslake v. Morgan 
 Keith V. Jones 
 Kemble v. Mills 
 Kent V. Lowen 
 Kerrison v. Cooke 
 Ketchell u. Barnes 215, 
 Kilgouri). Mills 
 King V. Beckley 
 
 The V. Lamberton 
 
 V. Thorn 
 
 V. Walker 
 
 V. Holmes 
 
 Kingston v. Wilson 
 Kirby v. Sisson 
 Kitchen u. Bartsch 
 Knights V. Putman 
 Konig V. Bayard 124, 
 
 Kramer v. Sandford 
 V. M'Dowell 
 
 Krasson v. Smith 
 Kuf h V. Weston 
 
 Lacon v. Hooper 
 Lafort V. Lamdry 
 Laing v. Barclay 
 La Jeune Eugenie 
 Lambert, ex parte 
 
 V. Pack 
 
 V. Taylor 
 
 V. Ghiselm 
 
 Section 
 
 35 
 91 
 
 84 
 
 158 
 
 266 
 
 43 
 
 306,478 
 
 183 
 
 252, 268 
 
 338 
 
 301,390 
 
 203 
 
 74 
 
 22 
 
 325 
 
 400 
 
 449 
 
 81 
 
 190 
 
 256,423 
 
 316 
 
 297 
 
 187 
 
 295, 300 
 
 Lamourieux v. Hewitt 
 Lampet's case 
 Lane v. Steward 
 Lang V. Gale 
 Langdale v. Trimmer 
 Langden v. Stokes 
 Lange v. Kohne 
 Lanfear v. Blossman 
 Lapier v. Smith 
 Lawrason v. Mason 
 Lawrence v. Dogherty 
 
 V. Langley 
 
 Laxton v. Peat 
 Leach v. Bucanan 
 
 ' V. Hewitt 
 
 Lean v. Shute 
 
 143, 330 
 
 297 
 
 65, 321 
 
 134 
 
 121, 124 
 
 110,412 
 
 60 
 
 298, 308 
 
 215,457,458 
 
 17 
 
 320, 371 
 
 143, 330 
 
 292 
 
 266 
 
 43 
 
 46 
 
 148 
 
 462 
 
 43 
 
 346 
 
 268,432,434 
 
 262 
 
 318 
 
 90 
 
INDEX TO CASES CITED. 
 
 XXlll 
 
 Leavitt v. Putnam 
 Lechmere v. Fletcher 
 Ledger v. Ewer 
 Lee «. Levi 
 
 V. Dick 
 
 V. Muggeridge 
 
 V. Wilcocks 
 
 V. Zagury 
 
 Leeds v. Lancashire 
 Lefevre v. Lloyd 
 Leffingwell v. White 
 Leftly f. Mills *"" 
 Legg V. Legg 
 Legge V. Thorpe 
 Lehman v. Jones 
 Leiber v. Goodrich 
 Lenox v. Cook 
 
 V. Leverett 
 
 V. Roberts 
 
 Leonard v. Gary 
 
 Section 
 
 220, 2-33 
 
 430 
 
 184, 187 
 
 427 
 
 305, 372 
 
 182 
 
 150 
 
 220 
 
 34,42,46 
 
 76 
 
 143 
 
 277, 283, 468, 469 
 
 93 
 
 280,311,367 
 
 327 
 
 43 
 
 321 
 
 302 
 
 288, 290, 344 
 
 317 
 Le Roy v. Crowninshield 139, 142, 
 
 165 
 Lester v. Garland 329 
 
 Lewis V. Burr 337 
 
 u. Cosgrave 184,187 
 
 V. Gompertz 301 
 
 V. Jones 
 
 Leuqueer v. Prosser 
 Lewis V. Lee 
 
 V. Owen 
 
 V. Peytavin 
 
 Levy V. United States Bank 
 
 Lickbarrow v. Mason 
 Lightbody v. Ontario Bank 
 Lifiey v. Miller 
 Lincoln & Kennebec Bank v. 
 
 Hammatt 
 Lindenbereer v. Beall 
 Lindus v. Bradwell 
 Lindo V. Unsworth 
 
 429 
 
 457 
 
 90 
 
 158, 164, 165 
 
 449 
 
 411, 
 
 450 
 
 188 
 
 225 
 
 313 
 
 Little V. O'Brien 
 
 V. Slackford 
 
 Littlefield v. Shee 
 Lizardi v. Cohen 
 Lloyd V. Scott 
 
 V. Howard 
 
 Lobdell V. Nipkler 
 Lockwood V. Crawford 
 
 Lodge V. Dicas 
 
 V. Phelps 
 
 Longdale v. Parry 
 Lonsdale v. Brown 
 Lord V. Chadbourne 
 
 287 
 
 290,382 
 
 92 
 
 283, 293, 308, 
 
 340 
 
 198, 224, 360 
 
 33 
 
 182 
 
 165 
 
 190 
 
 203, 220 
 
 425, 436 
 
 231, 301, 
 
 364 
 
 431 
 
 175 
 
 435 
 
 23 
 
 325 
 
 Section 
 Louis. State Ins. Co. v. Sham- 
 burg 351 
 Lovell V. Evartson 198 
 Lowe V. Walker 189 
 Lowery v. Scott 297 
 Lowes V. Mazzaredo 189, 190 
 Lowndes u. Anderson 188 
 Lowsey v. Murrell 225 
 Loyd V. Lee 182 
 Ludlow V. Van Rensselaer 137 
 Lumley v. Musgrave 427 
 
 V. Palmer 242, 281, 468 
 
 Lundie v. Robertson 320, 373 
 
 Lynch v. Reynolds 428, 429, 433 
 Lysaght v. Bryant 304 a, 305 
 
 M. 
 
 Macgruder v. Bank of. Wash- 
 ington 235, 351, 352 
 Mantross v. Clark 191, 192 
 Macartney v. Graham 447 
 Mackintosh u. Hayden 325 
 Magruder v. Union Bank 346, 376 
 Mahoney v. Ashlin 22, 242, 465 
 Maisonnaire v. Keating 101 
 Male t). Roberts 163 
 Ma\m&, ex parte ' 290,382 
 Mallett V. Thompson 268, 431 
 Maltby v. Carstairs 429 
 Mann v. Lent 184 
 Marchington v. Vernon 462 
 Margetson v. Aitken 320 
 Markle v. Hatfield 111 
 Marsh V. Maxwell 294 
 Marshall v. Rutton 90, 91 
 Marston v. Allen 203, 207, 220 
 Martel v. Tureand 316 
 Martin v. Bacon 247 
 
 V. Bank of U. S. 449 
 
 — ■ — - V. Boure 7 
 
 V. Chauntry 43 
 
 V. IngersoU 234, 308, 320 
 
 V. Wmslow 325 
 
 Martyn v. Hinde 4fi2 
 
 Mason v. Barff 246 
 
 V. FranMin 321, 353 
 
 V. Hunt 249, 252, 462 
 
 1). Kurd 462 
 
 V. Morgan 92, 128 
 
 V. Rumsey 251 
 
 Master u. Miller 17 
 
 Mauran v. Lamb 198, S60 
 
 May V. Coffin 320 
 
 Mayhew v. Crickett 430 
 
 Mayor v. Johnson 348, 448 
 
XXIV 
 
 INDEX TO CASES CITED. 
 
 Seciipn 
 McClanahan v. Brandon 351 
 
 McCormick v. Trotter 43 
 
 McEvers V. Mason 249 
 
 M'Ferson v. Thoytes 262 
 
 McKeil V. Real Estate Bank 356 
 McLaren v. Watson 457, 458 
 
 McLaren v. Watson's Ex'rs 372, 
 456 to 458 
 McLemore v. Powell 426 
 
 McLeod ». Snee' 47,63 
 
 McMurtrie v. Jones 297, 299, 351 
 M'Nairy v. Bell 356 
 
 MoNeilage v. HoUoway 93, 128, 
 
 196 
 Mead v. Engs 290, 292, 303 
 
 V. Small 223, 374 
 
 Mechanics' Bank v. Griswold 3 74 
 
 Medbury v. Hopkins 
 Meeker v. Jackson 
 Melan v. Fitz James 
 Mellish V. Eowdon 
 
 132 
 449 
 142 
 231 
 
 V. Simeon 321, 399, 401 to 
 
 403 
 Mendel v. Steele 184 
 
 Mendizabal v. Machado , 247 
 
 Menet v. Gibson 56, 200 
 
 Mercer v. Lancaster 297 
 
 Merchant's Bank v. M'Intyre 262 
 Mertens v. Winnington 124 
 
 Messenger v. Southey 301 
 
 Metcalf V. Hall 471 
 
 Meymot, ex parte 82 
 
 Mickles v. Colvin 192 
 
 Miers v. Brown 387, 390 
 
 Miles V. Williams 1 96 
 
 W.Hall 300 
 
 Milford V. Mayor 321 
 
 Millandon v. Arnous 425 
 
 Miller v. Gaston 372, 457, 458 
 
 V. Hackley 23, 320 
 
 ». Race 62,188,207,416 
 
 V. Webb 449 
 
 Mills V. TJ. S. Bank 301, 344, 390 
 Milne v. Graham 171, 174 
 
 V. Prest 239, 240, 462 
 
 Milward v. Ingraham 266 
 
 Mitchell V. Baring 48, 235, 282, 
 
 344, 351, 353,363,423 
 
 V. Culver 25, 222 
 
 V. Degrand 228, 335, 350 
 
 122, 123,2i0, 
 
 250,255 
 
 49 
 
 184 
 
 338 
 
 427 
 
 Mitford V. Walcot 
 
 Moffat V. Edwards 
 Moggridge v. Jones 
 Mohawk Bank v. Broderick 
 V . Van Home 
 
 Section 
 Moies- V. Bird 254 
 Moline, earjoarte 305,469 
 Montgomery v. Bridge 148 
 , Bank of, v. Walk- 
 er 432 
 Moore v. Earle 93 
 
 , ex parte 398 
 
 — V. Manning 210 
 
 V. Whitby 243 
 
 Morgan v. Davidson 328, 349 
 
 V. Davison 236 
 
 V. Jones 46 
 
 V. Reintzel 449 
 
 V. Richardson 184 
 
 V. Towles 321 
 
 Morris u. Lee 33 
 
 V. Stacey 109 
 
 V. Walker 218 
 
 Morrison v. GiUingham 249 
 
 Mossop V. Eadon 348, 448 
 
 Mott V. Hicks 214 
 
 Mottram v. Mills 209, 424 
 
 Mountstephen v. Brooks 58 
 
 Mowbray, ex parte 201 
 Muilman v. D'Eugino 328, 231, 286, 
 
 29'5 
 
 Mulhovin v. Hannmn 356 
 
 Mullen V. Croghan 356 
 
 Munn V. Baldwin ' 287 
 
 V. Commission Co. 79, 190 
 
 Murdock v. Mills 462 
 
 Murray v. Judah 313, 434 
 
 Musson V. Lake 325 
 
 N. 
 
 Napier y. Schneider 
 
 
 398, 462 
 
 Nash V. Brown 
 
 
 184 
 
 V. Russell 
 
 
 182 
 
 Nelson v. Nelson 
 
 
 203 
 
 Newson v. Bowen 
 
 
 91 
 
 Nichols V. Fearson 
 
 
 190 
 
 
 268 
 
 426,428 
 
 277 
 
 V. Webb 
 
 Nicholson V. Beville "431,432 
 
 V. Gouthit 303, 318, 375 
 
 V. Patten 194 
 
 V. Revill 431 
 
 V. Chapman 206 
 
 Night V. Hunt 187 
 
 Nightingale w. Withington 85,128 
 Noble V. Adams 185 
 
 Nolte V. His Creditors 425 
 
 Norton v. Pickering 311, 312, 314, 
 
 369 
 Norton v. Waite 192 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 Noton V. Lewis 
 
 Section 
 • 317 
 
 O. 
 
 Oakeley v. Pasheller 425 
 
 Oakey v. Bevois 351 
 
 Obbard v. Betham 184 
 
 Ogden V. Gillingham 462 
 
 V. Saunders 141, 166, 169, 
 
 333 
 Ohio Insur. Co. v. Edmondson 135 
 O'Keefe v. Dunn 190, 228, 273 
 Ontario Bank u. Worthington 192 
 
 V. Petri 390 
 
 Orr V. Magennis 228, 278, 280, 284, 
 302, 311, 367, 369 
 Orridge v. Sherburne 342 
 
 Ory V. Winter 158, 163, 169 
 
 Osborne w. Rogers 182 
 
 Owen V. Van Ulster 76 
 
 Owens V. Dickinson 90 
 
 Owensou «. Morse 109,225 
 
 Oxford Bank v. Lewis 426, 432 
 
 V. Haynes 372 
 
 V. Hoyes 428 
 
 Palmer v. Pratt 46, 47 
 
 Pam, ex parte 35, 59 
 
 Parker v. Gordon 240,291, 328,349 
 
 V. Greele 249 
 
 U.Lee 266 
 
 Parr v. Eliason 190 
 
 Parsons v. Armor 246 
 
 V. Gloucester Bank 426 
 
 Partridge v. Davis 204 
 
 Pasmore v. North 222 
 
 Patience v. Townley 234, 283, 308, 
 327, 365 
 Paton V. Winter 239, 240 
 
 Patterson v. Becher 280 
 
 Patton V. State Bank 448 
 
 Payne v. Cutler 192 
 
 Peacock v. Banks 148 
 
 ■ V. Rhodes 60, 188, 189, 
 
 207 
 Pearsall v. Dwight 132, 134, 135 
 Pearson v. Garrett 46 
 
 V. Cranlan 295 
 
 Pearseu. Hush 81 
 
 Peck V. Cockran 247 
 
 Percival v. Frampton 192 
 
 Perfect v. Musgrave 431, 432 
 
 Perriera v. Jopp 226 
 
 Perry v. Cramond 25 
 
 B. or EX. c 
 
 Peters v. Brown 
 Petit V. Benson 
 Phillips V. Allan 
 
 V. Astling 
 
 V. Bateman 
 
 Section 
 366 
 239 
 165 
 235, 305, 362 
 456 to 458 
 Philliskirk v. Pluckwell 63, 92, 128, 
 196, 198 
 Philpot V. Bryant 362, 425, 426 
 Phipson V. Kneller 308 
 
 Phoenix Bank v. Hussey 23 
 
 Pierce v. Wheatley 63 
 
 V. Whitney 375,377 
 
 Pierson v. Dunlop 47, 239, 240. 244, 
 
 249,269,462 
 
 V. Hooker 320 
 
 V. Hutchinson 348, 448 
 
 Pike V. Street 187, 214 
 
 Pillans V. Van Mierop 13, 14, 192, 
 
 242, 249, 462 
 
 Pinkney v. Hall 
 
 
 7 
 
 Pintard v. Packington 
 
 
 447 
 
 Pitt V. Chappelaw 
 
 
 85 
 
 V. Smith 
 
 106 
 
 ,185 
 
 Planche v. Fletcher 
 
 
 136 
 
 Piatt V. Drake 
 
 
 390 
 
 Pollard V. Herries 
 
 
 402 
 
 Poole V. Smith 
 
 
 448 
 
 Popplewell V. Wilson 
 
 63 
 
 183 
 
 Pope V. Luff 
 
 
 4 
 
 Porter v. Boyle 
 
 
 297 
 
 Porthouse v. Parker 299, 
 
 305, 
 
 312, 
 392 
 
 Posey V. Decatur Bank 
 
 
 449 
 
 Potter V. Brown 154 
 
 163 
 
 ,169 
 
 V. Rayworth 
 
 
 320 
 
 Potts V. Bell 
 
 V. Reed 
 
 Powell V. Monnier 
 
 ■ V. Roach 
 
 V. Waters 
 
 Power V. Pumice 
 
 V. Lynch 
 
 Pray v. Pickett 
 Prentiss v. Savage 
 
 99, 102 
 
 213,214 
 
 242, 243 
 
 448 
 
 191 
 
 211 
 
 153, 154 
 
 43 
 
 143, 153, 154, 
 
 168 
 
 329 
 
 189 
 
 92, 128 
 
 430, 432 
 
 268,426,427 
 
 Presbrey v. Williams 
 Preston v. Jackson 
 Prestwick v. Marshall 
 Price V. Edmonds 
 
 V, Edwards 
 
 V. Neale 113, 262, 263,411, 
 
 451 
 
 V. Young 308, 318 
 
 Priddy v. Henbrey 63 
 
 Prideaux u. Collier 311,375 
 
 Pring V. Clarkson 427 
 
I 
 
 xxvi 
 
 INDEX TO CASES CITED. 
 
 Section 
 
 109 
 
 329 
 
 269 
 
 53, 222 
 
 165 
 
 Puckford V. Maxwell 
 Pugh V. Duke of Leeds 
 Purssord v. Peek 
 Putman v. Sullivan 
 
 Q- 
 
 Quelin v. Moisson 
 R. 
 
 Raggett u. Axmore 252,268 
 
 Ramdulollday ^). Daneux 311,314 
 Ramuz v. Crowe 348 
 
 Ranelagh v. Champant 148 
 
 Bann V. Hughes 16 
 
 Ransom v. Mack 297, 299, 337, 338, 
 351,382,390 
 Rapia, The 99 
 
 Rawdon v. Redfield 298, 299 
 
 Rawllnson v. Stone 195 
 
 Rawson v. Walker 317 
 
 Read v. Marsh 249 
 
 V. Wilkinson 240 
 
 Reading V. Weston 190 
 
 Reed v. Paine 297 
 
 V. White 431 
 
 Reedy «. Seixas 390 
 
 Kees V. Marquis of Headfort 185 
 
 V. Warwick 244 
 
 Reeside v. Knox 46 
 
 Regina v. Bartlett 35 
 
 Reid V. Payne 351 
 
 Kenner v. Bank of Columbia 317 
 Rex V. Box 55, 60 
 
 17. Hunter 33,35 
 
 V. Randall 64, 55 
 
 Reynolds v. Da vies 325 
 
 V. Douglas 372 
 
 U.Blackburn 269 
 
 Rhett». Poe 305,312,372,381,382, 
 
 392 
 Rhodes v. Gent 355, 356 
 
 V. Lindley 43 
 
 Rice V. Stearns 214 
 
 u. Wesson 231 
 
 Rich V. Hogan 281 
 
 Richards i7. Richards 92, 93, 198 
 Riohter v. Selin 320 
 
 Rickford v. Ridge 381 
 
 ilicord V. Bettingham 101 
 
 Ridout V. Bristow 183 
 
 Riggs «. Lindsay 398,462 
 
 Roach u. Ostler 35,59 
 
 Robbins v. Pinckard 288 
 
 Roberts v. Peake 
 V. Pease 
 
 Section 
 46 
 46 
 Robertson v. Banks 74 
 
 V. Kennington 217 
 
 Robins «. Gibson 302,311 
 
 : — V. May 4G 
 
 V. Maidstone 1 88 
 
 Robinson v. Ames 228, 23 1 , 3 II , 
 
 321 
 
 V. Bland 35, 59, 129, 134, 
 
 148, 187 
 
 7k3leyr 344 
 
 U.Gibson 369 
 
 u. Bead 109 
 
 V. Reynolds 1 88 
 
 V. Yarrow 262, 263, 412 
 
 Robson V. Bennett 471 
 
 V. Curlewis 301, 390 
 
 V. Oliver 476 
 
 Rochester, Bank of, v. Gray 138, 
 
 321, 379, 388 
 
 Rogers v. Hopkins 367 
 
 V. Stephens 273, 276, 280, 
 
 302, 311, 316, 320 
 Rohde V. Proctor 305, 318 
 Rolfe V. Caslon 183 
 Rolt V. Watson 448 
 Roosa u. Brotherson 192 
 Roosevelt v. WoodhuU 308 
 Roscoe V. Hardy 423 
 Rose V. Mc Leod -165 
 Rosher v. Kieran 304 
 Rothschild V. Comey 220 
 «. Cuirie 22,153,177, 
 
 285, 296, 366, 391 
 Rowe V. Young 239, 355 to 357 
 Rowley v. Ball 449 
 
 V. Stoddard 431 
 
 Rowlands v. Springett 301 
 
 Rucker v. Hillier 311, 313, 367 
 Ruff J). Webb 33 
 
 Ruggles V. Patten 356, 436 
 
 Rumball v. Ball 325 
 
 Russell V. Brooks 92 
 
 r. Haddock 192 
 
 V. Langstaffe 25, 53, 222, 
 
 , 318, 326, 346 
 V. Wiggin 249, 462 
 
 S. 
 
 Safford v. Wyckoff 299, 303, 304 
 Salem Bank v. Gloucester Bank 450 
 Salina, Bank of, v. Babeock 192 
 Salter v. Burt 338 
 
 Saltmarsh v. Tuthill , 390 
 
INDEX TO OASES CITED, 
 
 XXVI I 
 
 Section 
 
 Samuel ». Howarth 425 
 
 Sandusky Bank of, v. Scoville 193 
 Sanford v. Dillaway 346 
 
 V. Mickles 197 
 
 Sanger v. Stimpson 390 
 
 Sard V. Rhodes 269 
 
 Sargent v. Appleton 425, 428, 434, 
 
 436 
 Saunderson v. Judge 300 
 
 V. Piper 42 
 
 Saul V. Brand 297 
 
 Savage u. Merle 211,311 
 
 Savings Bank, New Haven, v. 
 
 Bates 220 
 
 Sayer v. Wagstafif" 4 1 9 
 
 Sayre v. Frick 197, 299 
 
 Scarpellini v. Atehinson 93 
 
 Schimmelpennich v. Bayard 249, 
 
 462 
 Schneider v. iNbrris 53 
 
 Schofield V. Bayard 234, 308, 327, 
 
 865 
 Scholefield w. Eichelberger 99 
 
 Schoonmaker v. Eoosa 183 
 
 Scofield V. Day 148 
 
 Scott V. Bevau 150 
 
 V. Gilmore 187 
 
 V. Lifford 191, 290 to 293, 471 
 
 Scruggs V. Gass 225 
 
 Seago V. Deane 182 
 
 Searight u. Calbraith 163 
 
 Sentence v. Poole 106 
 
 Seneca Co. Bank v. Neass 192 
 
 Sharington v. Strotten 16, 180 
 
 Sharp u.Bayley 310,370,392 
 
 Shaw V. Croft 304 
 
 V. Reed 346, 355 
 
 Shed V. Brett 23S, 297, 352, 382, 
 
 390 
 Shepard v. Hajrkey 389 
 
 Sheriff W.Wilkes 185 
 
 Sherrill v. Hopkins 169 
 
 Sherwood v. Roys 198, 224, 360 
 ShiUito V. Theed 189 
 
 Shute V. Robins 231, 472 
 
 Shuttleworth v. Stephens 33, 35, 58 
 Sice V. Cunningham 325 
 
 Sigourney v. Lloyd 211 
 
 Simmons v. Guttridge 443 
 
 Skilding u. Warren 187 
 
 Slaoum V. Pomeroy 153, 158, 169, 
 
 407 
 Slater v. West 194 
 
 Smallwood v. Vernon 60 
 
 Smedes v. Utica Bank 297, 303 
 Smith V. Abbott 239, 240 
 
 Smith V. Beckett 
 
 V. Boehme 
 
 V. Buchanan 
 
 V. Chester 
 
 V. Clarke 
 
 ex parte 
 
 V. Hawkins 
 
 V. Hawthorne 
 
 V. Jarvis 
 
 V. Kendall 
 
 V. Knox 
 
 V. Little 
 
 Section 
 
 425 
 
 43, 46 
 
 165 
 
 262, 263,412 
 
 207 
 
 429 
 
 . 426 
 
 287, 351 
 
 53 
 
 60 
 
 191, 253, 270,428 
 
 390 
 
 239, 
 
 • V. McClure 56, 203, 210 
 
 • V. Mead 132 
 
 • V. Mercer 110, 262, 418, 451 
 
 • V. MuUett 289 to 291, 293, 
 
 294 
 
 42 
 
 240 
 
 92 
 
 201 
 
 278 
 
 348, 449 
 
 165 
 
 305 
 
 390 
 
 189 
 
 25, 53, 229 
 
 194 
 
 210 
 
 301, 390 
 
 426 
 
 269- 
 
 188 
 
 184 
 
 91 
 
 V. Nightingale 
 
 V. Nisseu 
 
 V. Pedley 
 
 V. Pickering 
 
 V. Roach 
 
 V. Rockwell 
 
 V. Smith 
 
 V. Thatcher 
 
 V. Whiting 
 
 Smedberg v. Simpson 
 Suaith V. Mingay 
 Snow V. Peacock 
 Scares v. Glyn 
 Solarte v. Palmer 
 Solly V. EUerman 
 
 V. Forbes 
 
 Solomon v. Turner 
 Solomons v. Bank of England 
 Sparrow v. Caruthers 
 
 • V. Chisman 184, 
 
 . 187, 253 
 Spencer v. Bank of Salina 297, 299 
 Spies V. Gilmore 327, 346, 390 
 
 Splitgerber v. Kohn 
 Spring V. Appeol 
 V. Lobett 
 
 34 
 192. 
 317 
 457 
 239, 240 
 158 
 304 
 192 
 93 
 287, 303, 304, 
 311 
 Staples u. Okines 311 
 
 Starke v. Cheeseman 59 
 
 Starkie v. Cheepeman 35 
 
 Steers v. Lashley . 187 
 
 Stephen v. Hawkey 299 
 
 Stephens v. Foster 194 
 
 Springer v. Hutchinson 
 Sproat V. Matthews 
 Sprowle V. Legge 
 Stafford v. Yates 
 Stalker v. McDonald 
 Stanwood v. Stanwood 
 Stanton v. Blossom 
 
XXVlll , 
 
 INDEX TO CASES CITED. 
 
 Section 
 Stephens v. Wilkinson 184 
 
 Stevens v. Hill 46 
 
 V. Lynch 320, 373, 426 
 
 V. West 376 
 
 Stewart v. Eden 299, 300, 308, 
 
 426, 428 
 
 V. Eastwood 1 7 
 
 V. Kennett 303 
 
 V. Lee 213 
 
 V. Lord Kirkwall 90 
 
 V. Stewart 320 
 
 Stirling v. Forester 269, 431 
 
 V. Marietta & Susq. 
 
 Trad. Co. 198,360 
 
 Stock V. Manson 435 
 
 Stockman v. Parr 390 
 
 Stokes V. Lewis 182 
 
 Stone V. Treeland 200 
 
 V. Metcalf 34 
 
 Storer v. Logan 249 
 
 Storken v. Collins 288, 290, 301 
 Strange v. Wigney 194 
 
 Strawbridge v. Robinson 23, 24, 468 
 Stroker v. Graham 231 
 
 Stuckert v. Anderson 297, 325, 
 
 382, 386 
 Stuokley v. Furse 426, 427 
 
 Sturges u. Derrick ^ 308 
 
 Sturdy v. Henderson ' 335 
 
 Sturtevant u. Ford 192 
 
 Summer v. Brady 187 
 
 Sutton V. Loomer 342 
 
 Swasoy v. Vanderheyden 84 
 
 Swift u. Stevens 448 
 
 V. Tyson _ 192, 220 
 
 Swinford & Horn, in the matter 
 
 of 330 
 
 Swinyard «. Bowes 372 
 
 Syderbottom v. Smith 227 
 
 Tait V. Hibbert 
 Tapley v. Martens 
 Tassel v. Lewis 
 Tatlock V. Harris 
 Taunton v. Richardson 
 Taylor v. Binney 
 
 V. Croker 
 
 V. Dobbins 
 
 V. Mather 
 
 ■ V. Snyder 
 
 184, 413 
 
 109 
 
 330 
 
 200 
 
 317 
 
 215 
 
 84, 85, 127, 262 
 
 53 
 
 187, 220 
 
 346, 351 
 
 183 
 
 Ten Eyck v. Vanderpoel 
 
 Thatcher v. Dinsmore 74 
 
 Thackray v. Blackett 311, 348 
 
 Thatcher v. Winslow 198, 224 
 
 Thayer v. King 
 Thomas v. Bishop 
 
 V. Breed 
 
 V. Roosa 
 
 Thomson v. Ketchum 
 Thompson v. Gibson 
 
 ' V. Hale 
 
 V. Powles 
 
 Thornton v. Dick 
 V. Wynn 
 
 Section 
 449 
 76 
 372 
 43 
 148, 163 
 220 
 187 
 148 
 252 
 320, 373 
 Thurston v. McKown 188 
 
 Tibbetts «. Dowd • 373 
 
 Ticknor v. Roberts 138 
 
 Tindal v. Brown 289, 290, 301, 
 303, 304 
 Titus V. Lady Preston 330 
 
 Tombeckbee Bank v. Stratton 426, 
 
 428 
 Tootle, ex parte 46 
 
 Touro V. Cassin 134 
 
 Townsley v. Sumrall 183, 192, 228, 
 231, 253, 277,462 
 Trasher v. Everhart 132, 135 
 
 Treakley v. Fox 443 
 
 Treutel v. Barandon 211, 214 
 
 Trier u. Bridgman 16 
 
 Triggs V. Newnham 328, 349 
 
 Trimbey v. Vignier 132, 133, 142, 
 153, 156, 172 to 174, 205 
 Trimmer v. Oddie - 252 
 
 Troy, Bank of, v. Topping 183 
 
 Trueman v. Hurst 84 
 
 Tuckerman v. Newhall 431 
 
 Turner «. Bincor 16 
 
 Tunno v. League 234, 303, 308, 327 
 Turner v. Hay den 355 
 
 V. Leach 294, 423 
 
 Twopenny v. Young 427, 431 
 
 Tye V. Gwinne 184 
 
 u. 
 
 Union Bank v. Hyde 273, 378, 468 
 United States, Bank of, v. Bar- 
 ber 209 
 
 V. Barker 228, 273, 
 
 288,300,366,367 
 
 V. Buford 60 
 
 V. Dandridge 79 
 
 V. Donally 132 
 
 V. White 60 
 
 United States Bank v. Bank of 
 Georgia 411, 450 
 
 V. Carneal 297, 
 
 298, 390 
 
. INDEX TO CASES CITED. 
 
 XXIX 
 
 * Section 
 
 United States Bank v, Cusi- 
 
 man 430 
 
 V. Davis 388 
 
 V, Dunn 317 
 
 V. Goddard292, 
 
 294, 303, 304 
 
 V. Hale 428 
 
 —- V, Hatch 351',' 
 
 425, 436 
 
 V. Smith 856 
 
 Upham u. Prince 215,372,457,458 
 Usher v. Duncey 25, 53, 222 
 Uther V. Rich 194 
 Utica, BanlE of, v. Bender 351 
 V. Davidson 297, 
 
 351 
 
 — V. Phillips 297,351 
 
 V. Smith 198, 209, 
 
 303 
 
 Valette u. Mason 188 
 
 Valk V. Simmons 311, 313, 367 
 
 Van Cleef u. Therasson 164 
 
 Van Derveer v. Wright 373 
 
 Van Eaugh v. Arsdaie 165, 366 
 
 Van Keimsdyku. Kane 134, 139 
 
 Van Schaick v. Edwards 134 
 
 Van Staphorst v. Pierce 108 
 
 Van Wart v. Wooley 372 
 
 Vaughan v. Fuller 320 
 
 Venus, The 99 
 
 Vere v. Lewis 56, 200 
 
 Vernon v. Boverie 419 
 
 Vidal V. Thompson 154, 159 
 
 Vincent v. Horlock 207 
 Violett V. Patton 25, 53, 222 
 
 W. 
 
 Wackerbarth, ea; parte 121,124, 
 255, 256 
 Wain V. Bailey 448 
 
 Walcott V. Van Santvoord 356 
 
 Walker v. Attwood 239 
 
 V. Bank of Montgomery 428 
 
 V. Tunstall 298 
 
 V. Parkins 187 
 
 Wallace u. Agry 228, 231, 285, 
 
 296, 302 
 
 V. M'Connell 239, 269, 271, 
 
 356 
 Walpole V. Pulteney 252, 267 
 
 Walton V. Dodson 457, 458 
 
 Walton V. Watson 
 — : V. MascoU 
 
 Section 
 375 
 305 
 
 Walwyn v. St. Quintin 368, 269, 
 
 311, 327,436 
 
 Wankford v. Wankford 444 
 
 Ward V. Evans 109, 419 
 
 U.Johnson 431 
 
 Wardell v. Howell 192 
 
 Warder v. Arell ■ 163 
 
 tf. Tucker 311,314', 320 
 
 Warren u. AInutt . 356 
 
 V. Lynch 193 
 
 Warrender v. Warrender 132,137 
 Warrington v. Furbor 305 
 
 Warwick v. BruU 85 
 
 Washington, Bank of, v. Trip- 
 
 lett 177,228,273,284,303, 
 
 342, 350 
 
 Watkins v. Crouch 356 
 
 V. Maule 195, 201. 
 
 Watson V. Loring 321 
 
 Weakly v. Bell 297, 382, 386 
 
 Webb V. Fox 81 
 
 V. Plumer 143 
 
 Weed V. Hooten 356 
 
 Wegerslofi'e u. Keene 239 
 
 Welch V. Lindo 214 
 
 V. Mandeville 1 7 
 
 Weldon v. Buck 321 
 
 Wells V. Whitehead 23, 297, 302 
 Wender v. Andrews 468 
 
 Wennall v. Adney 1 82 
 
 Westcott V. Price 43 1 
 
 Wethey v. Andrews 470 
 
 Whateley v. Tricker 266 
 
 Wheaton v. Wilmarth 391 
 
 Wheeler v. Guild 188 
 
 Whiston V. Stodder 132, 135 
 
 Whitaker v. Morris 320 
 
 White V. Hopkins 428, 434 
 
 V. Sedwick 63 
 
 Whitehead v. Walker 187, 321, 366 
 Whiteman v. Childress 43 
 
 Whitfield V. Savage 284, 303, 316, 
 
 318 
 Whitney u. Sterling 312 
 
 Whittier u. Grafiam 235,351 
 
 Whitwell V. Johnson 290 
 
 Wiffer w. Roberts 187 
 
 Wiffen i: Roberts 188 
 
 Wiggin V. Tudor 431 
 
 Wigglesworth v. Dallison 143 
 
 Wilcocks V. Riddle 281 
 
 Wilcox V. Hunt 132 
 
 V. McNutt 351 
 
 V. Roath 305 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 Wilks V. Jacks 
 Wilkins V. Jadis 
 Wilkinson v. Johnson 
 
 Section 
 Wild V. Bank-of Passamaquoddy 
 
 320, 426 
 Wildes V. Savage 35, 249, 372, 
 
 462 
 
 312,320,367 
 
 236,328,349 
 
 111,162, 
 
 411, 451 
 
 V. Lutwidge , 349, 262 
 
 Williams u. Germaine 123, 254,361, 
 344, 396 
 
 V. Harrison 84, 85 
 
 V. James 223 
 
 V. Shawcross 290 
 
 V. Smith 188, 290, 293, 475 
 
 V. United States Bank 
 
 297, 352 
 
 V. Wade 
 
 — V. Waring 
 
 V. Winans 
 
 Williamson v. Bennett 
 
 V. Watts 
 
 Willing V. Consequa 
 Willis V. Barrett 
 Willison V. Patterson 
 Wilson V. Codman's Ex'r 
 
 V. Clements 
 
 ex parte 
 
 V. Foot 
 
 — : V. Holmes 
 
 157 
 
 34, 325 
 
 249 
 
 46 
 
 84,85 
 
 132 
 
 55 
 
 99 
 
 63 
 
 249 
 
 318,429 
 
 428 
 
 198,211 
 
 Wilson V. Swabey 
 Windle v. Andrews 
 Wintle V. Crowther 
 Wood V. Brown 
 
 V. Jefferson Bank 
 
 Woodbridge v. Brigham 
 V. Spooner 
 
 Section 
 304 
 281 
 184 
 320, 373 
 425 
 329 
 317 
 300 
 444 
 
 Woodcock- K. Houldsworth 
 Woodward v. Lord Darcey 
 Woollsey v. Be Crawford 398, 462 
 Worcester Bank w. Wells 17,157, 
 158, 159, 164, 249 
 Worley «. Clements 338,341 
 
 Wright V. Shawcross 288, 290, 293 
 Wyatt V. Buhner 189 
 
 V. Campbell 189 
 
 Wynne v. Jackson 137, 159 
 
 : V. Kaikes 242, 244, 250 
 
 Yates V. Hall 
 
 V. Thompson 
 
 Yallup V. Ebers 
 Yeatman v. Erwin 
 Young V, Adams 
 
 • V. Bryan 
 
 V. Forbes 
 
 Yrisarri v. Clement 
 
 101 
 137 
 
 268, 432 
 297 
 
 111,225 
 468 
 308 
 148 
 
COMMENTARIES 
 
 BILLS OF EXCHANGE. 
 
 CHAPTER I. 
 
 ORIGIN AND NATURE OF BILLS OF EXCHANGE. 
 
 § 1. Having in other volumes discussed at large the 
 Law of Agency and the Law of Partnership, which en- 
 ter so largely into all the various branches of commer- 
 cial jurisprudence, my design in the present work is, 
 to unfold the general principles applicable to Bills of 
 Exchange, Promissory Notes, Bank Checks, and other 
 negotiable instruments for the payment of money. In 
 doing this, it seems to me, if not more philosophical, at 
 least of greater practical convenience and utility to 
 treat each of these topics separately, and thereby to 
 avoid the confusion and embarrassment often arising, in 
 the course of professional studies, from the intermixture 
 of considerations, which, however appropriate in one 
 species, may not apply at all, or may apply only Avith 
 remote or diminished force to another species of nego- 
 tiable instruments. It is true, that many of the prin- 
 ciples, which belong to one, will, in a general sense, be 
 found embodied in the others ; but it is rare that some 
 distinctions do not exist, which require caution and 
 
 B. OF EX. 1 
 
2 BILLS or EXCHANGE. [CH. L 
 
 discrimination in deducing the proper rules, which are 
 to regulate the rights, the duties, and the obligations of 
 the parties in each. My design is, therefore, in the first 
 place, to examine the doctrines of commercial jurispru- 
 dence concerning Bills of Exchange ; secondly, those 
 concerning Promissory Notes; thirdly, those concerning 
 Bank Checks ; and, lastly, those concerning other ne- 
 gotiable instruments of a kindred but miscellaneous 
 character. 
 
 § 2. A Bill of Exchange derives its name from a 
 phrase, familiar in the language of Continental Europe, 
 and most probably derived from that of France, in 
 which it is called " Billet de Change," or " Lettre de 
 Change." ' In the Middle Ages, the word Concambium 
 was used to express the particular ■ contract, known in 
 our law by the name of exchange, that is to say, a 
 transmutation of property, from one man to another, in 
 -consideration of some price or recompense in value, 
 such as a commutation of goods for goods, or of money 
 for money.® Hence, among foreign Jurists, the phrase, 
 Cambium reale vel manudle, is often used to express the 
 latter contract; whereas the contract by which one man, 
 in consideration of a sum of money received in one 
 place, entered into an engagement to pay him the like 
 
 1 Chitty on Bills (8th edit.), p. 1 ; Pardessus, Droit Comm. Tom. 2, 
 ch. I, \ 318; Code de Comm. Franc, ait. 110; Jousse, sur L'Ordin. de 
 
 iComm. 1673, tit. 5, p. 58, 64 ; Merlin R6pert. Lettie et Billet de Change, 
 § 1, p. 153 ; Id. ^ 2, p. 157 (edit. 1827) ; Pardessus, Droit Comm. Tom. 
 S, art. 318; Pothierde Change, n. 2, 3, 4. 
 
 2 Heinecc. Elem. Jur. Camb. § 1, note; Id. ^ 2 to 4 (edit. 1769) ; 2 
 Black. Comm. 446 ; Fothier de Change, n. I ; Loci6, Esprit de Comm. 
 Tom. 1, Lib. 1, tit 8, § 1, p. 330 ; Scaccia, ^ 1, Quest. 6, De Camb. n. 1 
 to 8 ; Id. § 1, Quest. 3, de Camb. n. 1 to n. 14, p. 129, 130 (edit. 1664) ; 
 Id. Quest. 4, n. 1, p. 104, cap. 2, § 1. 
 
CH. I.J ORIGIN AND NATURE. 3 
 
 sum in another, was commonly called by the name of 
 Cambium hcale, mercantik, trajectitium} Scaccia says, Lit- 
 ter ce Cambii dicuntur ex eo, quia camlitur pecunia pro Uteris? 
 ^ 3. Mr. Justice Blackstone has defined a Bill of 
 Exchange to be, an open letter of request from one 
 man to another, desiring him to pay a sum (of money) 
 named therein, to a third person on his account ; ^ and 
 this definition is followed by other writers.* Huberus 
 gives a definition substantially the same. Cambium est 
 converitio, qud ego tibi mando, ut tertio summam pecunice 
 f&ndes, quam alius miMjam dedit, vel de qua fidem illi habeo? 
 This defiinition is certainly accurate, as far as it goes ; 
 but it wholly omits that, which, in modern times, is the 
 most general form and structure of Bills of Exchange, 
 its negotiable character, whereby it is made payable to 
 a particular person or his order, or to the Bearer, and 
 thus acquires its most important use as a facility in 
 commercial intercourse by becoming an instrument of 
 general circulation and credit. Mr. Chancellor Kent, 
 following the language of Bayley on Bills,^ has given a 
 
 1 Heinecc. Elem. Camb. cap. 1, § 5 (edit. 1769) ; Pothier de Change, n. 
 1, 2. — Pothier makes a distinction between a " Lettre de Change," and 
 a " Billet de Change." The Billet de Change, he says, is, when the 
 party, with whom the contract is made, is not at present prepared to give 
 the Bill of Exchange agreed on, and merely gives a Billet, by which he 
 engages hereafter to furnish one on the proper place. And he adds, that 
 a Billet, by which the party, to whom one has furnished a Bill of Exchange, 
 for which he has not paid the value, engages to pay it, is also called a 
 Billet de Change. Pothier de Change, n. 4. See also Heinecc. Elem- 
 Jur. Camb. § 5, 8; 1 Domat, Civ. Law, B. 1, tit. 16, § 4. See also Mer- 
 lin, R6pert. Lettre et Billet de Change, § 4, 8, p. 196, 253 (edit. 1827.) 
 
 ^ Scaccia de Camb. Quest. 3, n. 13, p. 103. 
 
 3 2 Black. Comm. 466. 
 
 4 Chitty on Bills (8ih edit.), p. 1, 2; 1 Bell, Comra. B. 3, oh. 2, ^ 5, p. 
 386 (5th edit.). 
 
 5 Hub. Prelect. Jur. Civ. Lib. 17, tit. 1, § 12. 
 
 6 Bayley on Bills, ch. I, § 1, p. 1 (5th edit. 1830.) 
 
4 BILLS OF EXCHANGE. [cH. L 
 
 definition, which is at once concise, clear, and accurate ; 
 "A Bill of Exchange is a written order or request by 
 one person to another, for the payment of money, abso- 
 lutely, and at all events." ' But here again its peculiar 
 distinguishable equality in modern times, its negotia- 
 bility, is omitted, which, although not by our law 
 essential to the instrument, is still that, which, practi- 
 cally speaking, among merchants, constitutes its true 
 character. Mr. Kyd has accordingly given the more 
 extended definition, stating it to be, an open letter of 
 request, addressed by one person to a second, desiring 
 him to pay a sum of money to a third, or to any other, 
 to whom that third person shall order it to be paid ; or 
 it may be payable to Bearer.^ 
 
 § 4. Heineccius gives a definition nearly to the same 
 effect. Per Cambium intelligimus litteras solemni formula 
 scriptas, quibus quis aUerum solvi jubd prcBsenianti certam 
 pecunice summam, sibijam numeratam, suoque nomine satis- 
 f actionem promittU ; ^ or, as he expresses* it in another 
 place, Ut pecunia, a nobis Titio hoc loco numerata, oblatis 
 Miens cambiaUbus, alto loco a Sempronio solvUur d, qui hos 
 litteras a Titio, vel a legitimo possessore, justo titulo acce- 
 perit.* Stypmannus gives the following definition. Est 
 autem Cambium contractus in permutatione pecunice cequir 
 valentis in diversis locis pro certo pretiofaciendaconsistens? 
 Pothier adopts similar language. One may define a 
 Bill of Exchange (says he) to be a letter clothed in 
 
 1 3 Kent, Coram. Leet. 44, p. 74 (4th edit.). Pope v. Luff, 7 Hill, N. 
 Y. R. 577. 
 
 2 Kyd on Bills, p. 3 (3d edit.) 
 
 3 Heineco. Elem, Jur. Camb. cap. 1, § 9 (edit. 1769.) 
 
 4 Id. cap. 1, § 3. 
 
 5 Stypm. Jus. Marit. ch. 8, § 14. 
 
CH. I.] ORIGIN AND NATURE. 5 
 
 certain terms, prescribed by the laws, whereby you 
 order your correspondent, in another place, to pay to 
 me, or to another person having my order, a certain 
 sum of money in exchange for a sum of laoney, or of 
 the value, of what you have here received of me, either 
 in fact or in account.^ In this sense a Bill of Exchange 
 is but an execution of a prior contract of exchange ; it 
 supposes such prior contract already established, and is 
 the means, by which it is carried into execution, and 
 not the contract itself.^ 
 
 § 5. The origin and history of Bills of Exchange, 
 like the origin and history of many other commercial 
 contracts, are subjects involved in no small obscurity. 
 The exchange of goods for goods, or what is called 
 barter trade, must have existed in all nations from the 
 earliest period of their formation into communities, from 
 the very necessities of the case.^ When money was 
 invented as the common medium of commerce, the 
 exchange of money for goods, which properly consti- 
 tutes a sale, and of money for money, which is but a form 
 of exchange, can be traced distinctly in the common 
 transactions of the same nation, as well as in the inter- 
 course of diflferent nations.* Thus, the exchange of 
 goods for money, and of money of one denomination 
 for another, may be found stated in the early Hebrew 
 Scriptures ; and those who sat at the tables to exchange 
 the one for the other, were called bankers, or masters of 
 the exchange, or money-changers.^ 
 
 1 Pothier de Change, n. 3; Jousse, sur L'Ordin. 1673, tit. 5, p. 58; 
 Locrf, Esprit de Coram. Tom. 1, tit. 8, § 1, p. 330. 
 
 2 Pothier de Change, n. 2. 
 
 3 Scaocia de Camb. Quest. 6, n. 1, 2, 3, p. 127; 2 Black. Comm. 446. 
 * Scaccia de Camb. Quest. 6, n. 1, 2, 6, p. 127. 
 
 5 Molloy, B. 2, ch. 10, § 1; Cunningham on Bills, ^ 2, p. 5; Exodus, 
 1* 
 
6 BILLS OF EXCHANGE. [CH. I. 
 
 § 6. It has been supposed, by some persons, that 
 Bills of Exchange were known to the nations of anti- 
 quity, and especially to the Romans.' But there is 
 great reason to doubt, whether the use of them, in the 
 
 ch. 30, V. 13; Matthew, ch. 25, v. 27; Heinecc. Elem. Camb. cap. 1, ^ 3, 
 note. 
 
 1 I have not been able to find, in my own imperfect researches, any very 
 distinct traces of the existence or use of Bills of Exchange in Greece. In 
 the elaborate work of Boeckh on the Public Economy of Athens, trans- 
 lated and published in two volumes, by Murray, in 1828, there is no distinct 
 statement of the existence or use of them ; and from the silence of the 
 Author, as well as an expression ill Vol. I. B. 1, ^ 9, p. 65, that " Prohi- 
 bitions to export money were unknown in ancient times, and are only com- 
 patible with the use of Bills of Exchange," I should conclude, that he 
 considered the nonexistence and nonuser of them as an admitted fact. If 
 it had been otherwise, it could scarcely be, that the Romans, from theii 
 intimate connexion with Greece, as well as the manifest utility of Bills, 
 should not have constantly employed them in their own commerce. The 
 Clazominians (as Boeckh informs us) at one time coined iron money for 
 use at home, in order to furnish their mercenaries abroad with silver ; and 
 thus the iron money stood in the relation of paper money in modern days, 
 and the silver served the purposes of modern exchange. Boeckh on the 
 Pub. Eoon. of Athens, Vol. I. p. 381, (ed. 1828.) Mr. Chancellor Kent 
 seems to think, that Bills of Exchange were known in Greece, from a pas- 
 sage in one of the pleadings of Isocrates. His note is, " See the plead- 
 ing of Isocrates, entitled, Trapeziiiciis. (Isocraiis Scripta omnia, edit. 
 H. Wolfius, Basle, 1587.) In that interesting forensic argument, which 
 Isocrates puts into the mouth of a son of Sopseus, the governor of a pro- 
 vince of Fontus, in his suit against Pasion, an Athenian banker, for the 
 grossest breach of trust, it is stated, that the son, wishing to receive a 
 large sum of money from his father,, applied to Stratocles, who was about 
 to sail from Athens to Pontus, to leave his money, and take a draft upon 
 his father for the amount. This, said the orator, was deemed a great 
 advantage to the young man, for it saved him the risk of remittance from 
 Pontus, over a sea covered with Lacedaemonian pirates. It is added, that 
 Stratocles was so cautious as to take security from Pasion ■ for the money 
 advanced upon the bill, and to whom he might have recourse if the 
 governor of Fontus should not honor the draft, and the young Pontian 
 should fail." 3 Kent, Comm. Lect. 44, p. 71, 72 (4th edit.). But this 
 transaction seems little more than the very case alluded to by Cicero, and 
 put in the Roman Law. See Stypmannus, Jus. Marit. ch. 8, ^ 1 to 8. 
 Encyclopedia Britannica, art. Exchange, (7th edit.) which cites De Pauw. 
 
CH. I.] ORIGIN AND NATURE. 7 
 
 form and manner, and for the purposes, to which they 
 are now applied, was known to antiquity. The nearest 
 approach seems to be the custom, which prevailed at 
 Rome, where one paid money to another at Rome to be 
 repaid by the other at another place, as, for example, at 
 Athens.^ This contract is repeatedly alluded to by 
 Cicero.^ And in the Pandects, the like contract is sup- 
 posed to be referred to in certain passages j. as, for 
 instance ; Si tamen cerfo loco tradMurum se quis stipuMus 
 sii, hoc adione utendum erit? And again ; Is, qui certo 
 loco, dare promtiit, nullo alio loco, quam in quo promisU, 
 solvere invito stipulator e potest} And again ; Qui certo 
 loco sese soluturum pecurdam olligat, si solutioni satis non 
 fecerif, arlUraria actions, et in alio loco potest conveniri? 
 But it may be doubtful, whether the contract here 
 spoken of is that of our modern BiUs of Exchange. It 
 may be said more nearly to resemble a contract for the 
 exchange of moneys in different places, or a mandate to 
 advance money to be repaid in another place.^ Cer- 
 tain it is, that the peculiar distinguishing quality of 
 Bills of Exchange in modern times, their negotiable 
 character, does not appear to have been known to the 
 ancients, or to have found its way into the general 
 transactions of their commercial intercourse. And this, 
 accordingly, is the opinion maintained by many modern 
 authors, and especially by Pothier, Merlin, and Locr^.' 
 
 1 Heinecc. Elem. Camb. cap. 1, § 6, 7, et not. (edit. 1769) ; Huber. 
 Prelect. Jur. Civ. Lib. 17, tit. 1, § 13. 
 
 2 Id. Locrt, Esprit du Code de Comm. tit. 8, Tom. 1, p. 326. 
 
 3 Dig. Lib. 13, tit. 4, 1. 7, § 1 ; 1 Domat, B. 1, tit. 16, § 1. 
 
 4 Id. 13, tit. 4, 1. 9. 
 
 5 Cod. Lib. 3, tit. 18, 1. 1. 
 
 6 Heinecc. Elem. Jur. Camb. cap. 1, § 9 (edit. 1769) ; Huber. Prelect. 
 Jur. Civ. Lib. 17, tit. 1,^ 12. 
 
 ■^ Pothier de Change, n. 6 ; Merlin, Rupert. Lettre et Billet de Change, 
 
8 BILLS OF EXCHANGE. [CH. I. 
 
 Pothier is very expressive on the subject, and says, 
 that there is not a vestige of our contract of exchange, 
 or of Bills of Exchange, to be found in the Roman 
 law ; ' and he says, that the suggestions of Cicero 
 amount to no more than a request or mandate to a 
 friend, who had money at Athens, to write to the debtor 
 or depositary to hold that money for his son at Athens.^ 
 Mr. Bejl adopts the same 'opinion, and says, that as a 
 branch of practical jurisprudence, or as a circulating 
 medium in trade. Bills of Exchange were unknown to 
 the Romans.^ 
 
 § 7. Mr. Justice Blackstote, in remarking upon the 
 origin of Bills of Exchange, says, that " This method is 
 said to have been brought into general use by the Jews 
 and Lombards, when banished for their usury and other 
 vices, in order the more easily to draw their effects out 
 of France and England into those countries, in which 
 they had chosen to reside. But the invention of it was 
 a little earlier ; for the Jews were banished out of 
 Guienne in 1287, and out of England in 1290 ; and in 
 1236 the use of paper credit was introduced into the 
 Mogul Empire in China." * Other persons have attri- 
 
 ^-2, Tom. 18, p. 157 (edit. 1827) ; Locr6, Esprit de Coram. Tom. 1, Liv. 
 1 tit. 8, § 1, p. 326 (3d edit.) ; Baldasserooi (F.) Leggi e Costumi del 
 Cambio, Pref. p. 10, 11, (edit. 1784.) Dupuy de la Serra expressly holds 
 that Bills of Exchange were unknown to the Ancients. Dupuy L'Art des 
 Lettres de Change, ch. 2, p. 4, § 1, (edit. 1789.) 
 
 1 Pothier de Change, n. 6; Locre, Esprit de Comm. Tom. 1, tit. 8, p, 
 326. 
 
 2 Pothier de Change, n. 6; Locr6, Esprit de Comm. Tom. 1, tit. 8, p. 
 326 ; Savary, Le Parfait Negociant, Tom. 1, Part 3, Liv. 1, ch. 3, p. 804, 
 805. 
 
 3 1 Bell, Comm. B. 3, ch. 2, § 4 (5th edit.), p. 386. 
 
 4 2 Black. Comm. 467; Montesq. Spirit of Laws, B. 21, ch. 20, Vol. 2, 
 p. 75 (edit. 1773) ; Savary Le Parf. Negociant, Tom. 1, Part. 3, Liv. 1, 
 
CH. I.] OEIGIN AND NATURE. 9 
 
 buted the invention to the Gibelins, on their being ex- 
 pelled from Italy by the faction of the Guelphs, in 
 order to withdraw their effects secretly, and to escape 
 the confiscation of them by their enemies.^ Each of 
 these accounts of the matter has been supported by 
 some, but rejected by other authors, as wholly unsatis- 
 factory and uncertain.® Certain it is, that Bills of Ex- 
 change were in use in many, if not in all, of the com- 
 mercial states bordering on the Mediterranean, as early 
 as the 14th century, although it is highly probable, 
 that the forms thereof were different, and had not then 
 settled down into one model or uniform instrument, like 
 that in use in our day.^ Some uncertainty rests upon 
 
 ch. 2, p. 804, 805; Baldasseroni (P.) Leggi e Costumi del Carabio, Pref. 
 p. 11, 12, (edit. 1784) ; Dupuy de La Serra, L'Art des Lettres de Change, 
 &c. ch. 2, ^ 1, p. 4 ; Casaiegis Discursus, 218, n. 1 ; Nouguier Des Let- 
 tres de Change, Tom. 1, oh. 1, p. 40 to 52. Mr. Nouguier, in his late 
 work on Bills of Exchange, insists that Bills of Exchange were first intro- 
 duced by the Jews, on their banishment from France, A. D. 1181. Kou- 
 guier Des Lettres de Change, Vol. 1, Liv. 1, ch. 1, p. 40 to p. 52. 
 
 1 Beawes in Lex. Mercat. by Chitty (edit. 1813,) Vol. 1, p. 559, 560; 
 Merlin, R6pert. Lettre et Billet de Change, Tom. 18, § 2, p. 157, 158 
 (edit. 1827) ; Savary,ubi supra; Casaregis, Discur. de Comm. 218, n. 1 ; 
 Anderson's History of Comm. Vol. 1, p. 266, (edit. 1790,) 8vo. by 
 Coombe. 
 
 » Merlin, Rupert. Lettre et Billet de Change, Tom. 18, § 2, p. 157, 158 
 (edit. 1827) ; Pothier de Change, n. 7 ; Heinecc. Jur. Camb. cap. 1, § 10 
 (edit. 1769) ; Loer6, Esprit de Comm. Liv. 1, tit. 8, § 1, Tom. 1, p. 327 ; 
 Chitty on Bills, p. 12 (8lh edit. 1833) ; Merlin, Ripert. Lettre et Billet de 
 Change, § 2, p. 157, 158, (edit. 1827) ; 3 Kent's Comm. Lect. 44, p. 72, 
 note (a,) (4th edit.) ; Savary Le Parf. Negociant, Tom. 1, Pt. 3, ch. 2, p. 
 805, 806 ; Baldasseroni (P.) Leggi e Costumi del Cambio, Pref. (edit. 1784); 
 Dupuy de La Serra, L'Art des Lettres de Change, ch. 2, § 1, 2, 3, p. 4j 
 5, (edit. 1789) ; Da Silva Lisboa, Princip. de Dereito Merc. Trad. W. Tom. 
 4, cap. 1, p. 5, 6, 7. 
 
 3 Mr. Chitty has adopted the very suggestions of Pothier on the sub- 
 ject of Bills of Exchange. He says ; " It seems extremely doubtful at 
 what period, or by whom. Foreign Bills of Exchange were first invented. 
 
10 BILLS OF EXCHANGE. [CH. I. 
 
 the point, whea Bills of Exchange were first intro- 
 duced into England; but there is reason to believe, 
 that they were there known as early as A. D. 1307, 
 
 The elementary writers differ on the subject. It is said by Pothier, that 
 there is no vestige among the Romans of Bills of Exchange, or of any 
 contract of exchange ; for though it appears that Cicero directed one of his 
 friends at Rome, who had money to receive at Athens, to cause it to be 
 paid to his son at that place, and that friend accordingly wrote to one of 
 his debtors at Athens, and ordered him to pay a sum of money to Cicero's 
 son ; yet it is observed that this mode amounted to nothing more than a 
 mere order, or mandate, and was not that species of pecuniary negotiation, 
 which is carried on through the medium of a Bill of Exchange. Nor 
 does it appear, that the commerce of the Romans was carried on by means 
 of this instrument ; for we find by one of their laws, that a person lending 
 money to a merchant, who navigated the seas, was under the necessity of 
 sending one of his slaves to receive of his debtor the sum lent, when the 
 debtor arrived at his destined port, which would certainly have been unne- 
 cessary, if commerce, through the medium of Bills of Exchange, had been 
 in use with them. Most of our modern writers have asserted (piobably on 
 the authority of Montesquieu,) that these instruments were invented and 
 brought into general use by the Jews and Lombards, when banished for 
 their usury, in orderj with the secrecy necessary to prevent confiscation, 
 to draw their effects out of France and England, to those countries, in 
 which they had chosen, or had been compelled to reside. Savary, Le 
 Parfait Negociant, Tom. 1, Pt. 1, Liv. 3, cb. 3, p. 129, (edit. 1777.) But 
 Mr. Justice Blackstone says, this opinion is erroneous, because the Jews 
 were banished out of Guienne in the year 1287, and out of England in the 
 year 1290, and in the year 1336, the use of paper credit was introduced 
 into the Mogul empire in China. Other authors have attributed the inven- 
 tion to the Florentines, when, being driven out of their country by the 
 faction of the Gibelins, they established themselves at Lyons and other 
 towns. On the whole, however, there is no certainty on the subject, 
 though it seems clear, foreign bills were in use in the fourteenth century, 
 as appears from a Venetian law of that period ; and an inference drawn 
 from the statute 5 Rich. 2, St. 1, 2, warrants the conclusion, that foreign 
 bills were introduced into this country previously to the year 1381." 
 Chitty on Bills, p. 12, 13 (8th edit. 1833.) Mr. Reddie, in his recent 
 Historical View of the Laws of Maritime Commerce (published in 1841,) 
 has traced the probable origin of Bills of Exchange to the business of the 
 Campsores, or money-changers, in tHe 12th, 13th, and 14th centuries, and 
 the business of commerce at the then common fairs. He says; "The 
 precise era of that most useful invention does not appear to have been 
 
CH. I.] 
 
 ORIGIN AND NATURE. 11 
 
 since King Edward I. in that year ordered certain 
 money, collected in England for the Pope, not to be re- 
 
 exactly ascertained ; but that it originated, in the manner we have just 
 seen, in the usages and customs observed, and in the regulations adopted 
 at fairs, from considerations of general security and convenience, there is 
 every reason to believe. And after it was once established upon a small 
 scale, the utility and convenience of the invention behooved gradually to 
 lead to its more extensive adoption, particularly in fi^eign and maritime 
 commerce. Indeed, it seems probable, that Bills of Exchange, such, or 
 nearly such, as we have at present, first came into general use in the 
 course of the extended commerce carried on by the maritime cities of Italy, 
 and of the south of France and Spain, under their comparatively free and 
 well administered governments. Weber, in his Ricerche suU' Origine e 
 sulla Natura del Contratto di Cambio, published at Venice in 1810, states 
 positively, that such documents were in use at Venice in 1171 ; and a law 
 of Venice, of 1273, clearly designates Bills of Exchange. The unpub- 
 lished statute of Avignon, of 1343, contains a paragraph, entitled De Lit- 
 teris Cambii. A statute of Marseilles, dated 1353, presents evident traces 
 of them ; and a transaction of this description is attested by a document of 
 1256, relative to England. Farther, in his Collection Diplomatica, Don 
 Antonio Capmany has discovered and recorded, in the middle of a public 
 authentic instrument, the following copy of a Bill of Exchange, dated 28th 
 April, 1404, drawn by a merchant in Bruges upon a mercantile company 
 in Barcelona, which approaches pretty much to the present form, and - 
 shows that such negotiable documents were then in frequent use : — 
 ' Al nome di Dio, Amen. A di Aprile xxvm. 1404. — Pagate per 
 questa prima di camb. A usanza, k Pietro Gilberto e Pietro Olivo, scnti 
 mille, a sold. x. Barcelonesi per scuto : e quali scuti mille sono per cam- 
 bio che con Giovanni Colombo, a Gressi xxii. degresso per scuto, et Pon, 
 a nostro conto ; et Christo vi, guardi. (Subtus vero erat scriptum.) An- 
 tonio quart. Sab. diBurgis.'" See also Savary, Le Parfait Negociant, 
 Tom. 1, P. 1, Liv. 3, ch. 3, p. 129 (edit. 1777.) — There is a Law of 
 Venice as early as 1273, which contains a chapter entitled De Literis 
 Cambii, cited by Nouguier from Nei de Parseribus. Nouguier Des Let- 
 tres de Change, Tom. 1, ch. 1, p. 42. Anderson, in his History of 
 Commerce, states, that the Emperor Barbarossa granted a charter of 
 Privileges to the city of Hamburg, and among other things, " liberty to 
 negotiate money by exchange." Anders. Hist, of Comm. Vol. 1, p. 221, 
 222, 8vo. (edit. 1790) by Coombe. The introduction and use of Bills of 
 Exchange in England seems to have been founded upon the mere prac- 
 tice of merchants, and gradually to have acquired the force of a custom. 
 Mr. Chitty says, that the earliest case on the subject to be found in the 
 English Reports, is that of Martin v. Boure, Cro. Jac. 6. See also Hus- 
 
12 BILLS OF EXCHANGE. [CH. L 
 
 mitted to him in coin or bullion ; but by way of ex- 
 change {per viam camhiiy 
 
 § 8, A much more probable origin may be assigned 
 to Bills of Exchange, from the general necessities of 
 commerce in the widely extended intercourse of the 
 modern commercial nations, which inhabited the shores 
 of the Mediterranean.^ The transition was natural 
 and easy from the actual exchange of money in one 
 place for money in another, to a contract or mandate, 
 by which the Receiver should promise to pay the money 
 in the latter place, or should order his own Depository, 
 or Agent, or Debtor, to advance or repay out of his 
 funds there. Scaccia has, therefore, not hesitated to 
 declare, that exchange of money had its introduction 
 or origin from the law of nations, and the necessities 
 of mankind ; Mrffo cambium sen commutatio pecunite 
 cum pecunia undique procedit a jure genikm. Cambium, 
 id est permutatio pecunice cum re, seu rei cum pecunia, 
 fuit inventy,m ex necessitate. Deinde hoc cambium pecunice 
 cum pecunia ccepit fieri etiam per Mtteras, et retinere 
 proprium nomen camKi, et inservire non solum simplici 
 permutationi ad emenda, quae domui, et familice necessaria 
 
 sey V. Jacob, 1 Ld. Raym. 87, 88 ; Pinkney v. Hall, X Ld. Kaym. 175. 
 At first it seems to have been confined to foieign bills between foreign 
 merchants and English merchants. It was afterwards extended to domes- 
 tic bills between traders ; and finally to all bills of all persons, whether 
 traders or not. Chitty on Bills, 13 (8th edit. 1833). 
 
 1 Rymer's Fcedera, Vol. 2, p. 1042 ; 1 Cranch, Rep. App. p. 384 ; 
 Anderson's Hist, of Comm. Vol. 1, p. 361 (8vo. edit. 1790), by Coombe. 
 In A. D. 1381, Bills of Exchange were expressly referrefl to in an Act of 
 Parliament of Rich. 3, Id. p. 402. 
 
 2 See Locr6, Esprit de Comm. Tom. 1, Liv. 1, tit. 8, ^ 1, p. 327, 328 ; 
 1 Bell, Comm. B. 3, ch. 2, ^ 4, p. 386 (5th edit.) ; Marquardus, de Jur. 
 Merc. Lib. 2, ch. 12, n. 9. Scaccia says ; Hugus cambii pecuniae cum 
 pecunia origo piocessit a casu et accedentaliter. Scacc. Tract, de. Comm. 
 § 1, Quest. 6, n. 11, p. 194. 
 
CH. I.] OEIGIN AND NATURE. 13 
 
 surd, sed etiam pro faciliori mercaturoe et peregrinationis 
 
 iisu} 
 
 § 9. Heineccius, one of the most learned and accu- 
 rate of text writers, has taken a similar view of this 
 subject. He insists, that the invention of Bills of Ex- 
 change had its origin in the necessities of commerce, 
 and was gradually perfected ; and that the merchants 
 of Venice and Lombardy were those, who principally 
 contributed to the use and improvement thereof; and, 
 indeed, that the terms of the instrument betray their 
 true parentage. PaulMim ergo, et non semel simulque, 
 ad earn perfectionem, quam hodie miramur, pervenit negotir 
 atio camlialis, et quidem opera mercatorum Venetorum et 
 Langdhafdorum?' 
 
 1 Scaco. de Camb. Quest. 6, n. 3, 6, 7, p. 127, 128. — Scaccia gives 
 various forms in use among the commercial nations of tiie Mediterranean, 
 from a very early period. Scaccia de Camb. Quest. 5, per tot. p. 110 to 
 127 ; Id. p. 508 to 514. See also forms in Stypmannus, Jus. Marit. ch. 
 8, § 56 to 76. See also Casaregis Discurs. de Commer. 218, ii. 2, where 
 he refers to a Bull of Pope Pius V. in 1570, in which niention is made of 
 Bills of Exchange. Cambiorum usus quem necessitas et publica utilitas 
 induxit. — Baldasseroni (Pompeo.) Leggi e Costumi del Cambio. Pref. 
 p. 13, (edit. 1784.) 
 
 2 Heinecc. Jur. Camb. cap. 1, § 6, 7, 8, 10, (edit. 1769) ; Merlin, Rupert. 
 Lettre et Billet de Change, % 2, p. 157 to 159 (edit. 1827). See also Styp- 
 mannus, Jus. Marit. ch. 8, ^ 1 to 8 ; Grotius, B. 2, ch 12, ^ 3, n. 4. — 
 Merlin (R6pert. Lettre et Billet de Change, § 2) gives a brief sketch and 
 review of the various opinions and historical facts connected with the sub- 
 ject ; and he says, that it is certain, that Bills of Exchange were in use 
 among the Genoese, and Florentines, and other Italians, at the commence- 
 ment of the 13th century, and they carried on trade by means of them with 
 France. There are abundance of writers, who have written on the subject 
 of Bills of Exchange since the beginning of the 17th century. Dupin, 
 Bib. Chois. de Droit, Tom. 2, n. 2212 to 2232, enumerates many of them, 
 p. 436 to p. 439 (edit. 1832). See also Weichsel, Handbuch des Wech- 
 selrechts, p. 34 (edit. 1284). Mr. Chancellor Kent, in his learned Com- 
 mentaries, has the following note, which I gladly transcribe. " In 1394, 
 the city of Barcelona, by Ordinance, regulated the acceptance of Bills of 
 
 B. OP EX. 2 
 
14 BILLS OF EXCHANGE. [CH. I. 
 
 § 10. In France there is an Ordinance of Louis XI. 
 as early as 1462, which permits all persons of •whatso- 
 ever estate, nation, or condition they may he, to give, 
 take, and remit their money by Bills of Exchange in 
 the business of merchandise in whatever country it 
 may be, except the nation of England.* And the sub- 
 ject was regulated at large by the celebrated Ordinance 
 of Louis XIV. of 1673, which has received a very full 
 and able exposition from Jouss^, and continued to be 
 
 Exchange ; and the use of them is said to have been introduced into west- 
 ern Europe by the Lombard merchants, in the 13lh century. Bills of Ex- 
 change are mentioned in a passage of the Jurist Baldus, of the date of 
 1338. Hallam's Introduction to the Literature of Europe, Vol. 1, p. 68. 
 M. Boucher received from M. Legou Deflaix, a native of India, a memoir, 
 showing that Bills of Exchange were known in India from the most high 
 antiquity. But the Ordinance of Barcelona, is, perhaps, the earliest au- 
 thentic document in the middle ages, of the establishment and general cur- 
 rency of Bills of Exchange. (Consulat de la Mer, par Boucher, Tom. 1 , 
 p.'614, 620.) The first bank of exchange and deposit in Europe was es- 
 tablished at Barcelona in 1401, and it was made to accommodate foreigners 
 as well as citizens. 1 Frescott's Ferdinand and Isabella, Int. p. 113. M. 
 Merlin says, that the edict of Louis XI. of 1462, is the earliest French 
 edict on the subject ; and he attributes the invention of Bills of Exchange 
 to the Jews, when they retired from France to Lombardy. The Italians, 
 and merchants of Amsterdam, first established the use of them in Fiance. 
 Repertoire de Jurisprudence, tit. Lettre et Billet de Change, sec. 3. In 
 England, reference was made, in the statute of 5 Rich. II. ch. 3, to the 
 drawing of foreign bills. This was in the year 1381." See Hallam's Mid- 
 dle Ages, Vol. 4, Ft. 2, ch. 9, p. 355, and note. Am. edit. 1821. See also 
 Cobbet on Pawns, p. 3, 12. See also Hallam, Introduct. to Literature of 
 Europe, Vol. 1, ch. 1, ^ 55, note (a), p. 40, of Paris edition, where he stales, 
 on the authority of Beekman, that the earliest recorded Bills of Exchange 
 are in a passage of the Jurist Baldus, and bear date in 1328. Baldus (as 
 cited in a Dissertation of Mr. Bergson in the Revue Etrangere et Franc, 
 by Foelix, 1843, p. 303, 204, 306,) gives the forms of Bills of Exchange 
 drawn in A. D. 1381 and 1385. Baldus, Consil. edit. Brixcensis, Pars. 1, 
 Consil. 53 ; Id. Pars. 3, Consil. 298. See also the forms in Scaccia De 
 Cambio, § 1, Quest. 5, p. 110 to 127; Id. p. 508 to 514 ; post, ^ 26, ». 3. 
 1 Locri, Esprit du Code de Comm. Tom. 1, Lit. 1, tit. 8, § 1, p. 328 ; 
 Merlin R6pert. Lettre et Billet de Change, ^ 2, p. 158, 159, (ed. 1827). 
 
CH. I.] ORIGIN AND NATURE. 15 
 
 the law of France until the recent introduction of the 
 Code of Commerce.' 
 
 § 11. Heineccius has also remarked, with great 
 force and pertinency, that although the laws of all 
 nations upon the subject of Bills of Exchange entirely 
 agree in most things ; yet, that there are certain prin- 
 ciples common to all nations, which constitute the 
 proper foundation, upon which all the law of exchange 
 rests, as a part of the municipal jurisprudence of each 
 nation. These principles, having their origin in the 
 customs and practice of exchanges, are deemed so 
 proper in themselves, that all the just conclusions 
 deducible from them are deemed of universal obliga- 
 tion ; and in the absence of any statutable or positive 
 regulations to govern the case, the general deductions 
 of naturallaw, and the law of nations, as well as those 
 of the Roman Law, are often resorted to in order to ex- 
 pound and enforce them.^ 
 
 § 12. But not to expend more time in investigations 
 of this sort, let us now proceed to consider the general 
 nature and character of a Bill of Exchange.^ In 
 common speech, such a Bill is frequently called a Draft ; 
 but a Bill of Exchange is the more legal, as well as 
 more accurate mercantile exprepsion.* The person 
 who writes and signs the request or order, is called in 
 law the Drawer, and he to whom it is written or ad- 
 dressed, is called the Drawee ; and if he accept to pay 
 the Bill, he is then called the Acceptor.* The third 
 
 i Ibid. ; Jousse, sur L'Ordin. 1673, tit. 5, p. 58, and note (edit. 1802). 
 
 2 Heinecc. Jus. Camb. cap. 1, § 11 to 14 (edit. 1769). 
 
 3 See Holford v. Blatchford, 2 Sandford, ch. R. 150. 
 ■» 2 Black. Comm. 467. 
 
 5 Id. ; Bayley on Bills, p. 23 (5th edit.) ; Chitty on Bills (8th edit. 
 
16 BILLS OF EXCHANGE. [CH. I. 
 
 person, or negotiator, to whom it is made payable, is 
 called the Payee.' If it is made payable to him or his 
 order, and he then assigns it to another person by 
 writing his name on the back thereof, in dorso, (which 
 act is called an indorsement,) he is then called the 
 Indorser, and so is every other person, who successively 
 puts his name on the back thereof, — and the person 
 to whom it is then assigned or delivered is called the 
 Indorsee, or Holder.^ If the Bill is payable to the 
 Bearer generally, any person, who has it rightfully in 
 possession from time to time, in called the Bearer or 
 Holder, and of course is clothed with all the rights and 
 authorities over it, which belong to the Payee or Indor- 
 see of a Bill, payable to the Payee or his order.^ 
 
 § 13. The general theory upon which Bills of Ex- 
 change rests, is, that the Drawer has funds in the 
 hands of the Drawee ; that he sells or assigns to the 
 Payee, for a valuable consideration, such part thereof 
 as amounts to the sum payable by the Bill ; that when 
 the Drawee accepts to pay the amount, it is an appro- 
 priation of the funds pro tanto, for the service and use 
 of the Payee, or other person holding the Bill under 
 him, so that the amount ceases henceforth to be the 
 money of the Drawer, and becomes that of the Payee, 
 
 1833), p. 2, 27,28; 1 Bell, Comm. B. 3, Pt. 1, ch. 2, § S, p. 386 (5th 
 edit.) ; Kyd on Bills, p. 4 (3d edit.). 
 
 1 lb. 2. 
 
 2 2 Black. Comm. 468 to 470. 
 
 3 Chitty on Bills, p. 2 (8th edit. 1833).— In the French law, the Drawer 
 is called Trahens or Tireur; the Payee is called Preneur, and sometimes 
 Donneur de valeur, or Remittens; the Indorser in called L'Endorseur ; the 
 Indorsee or Holder, Le Porteur, and sometimes Le Presentans; the Ac- 
 ceptor is called L'Accepieur; but there does not seem to be any distinctire 
 appellation of the Drawer before acceptance. Locr6, Esprit du Code de 
 Comm. Tom. 1, Liv. 1, tit. 8, § 1, p. 331 ; Pothier de Change, n. 17, 18. 
 
CH. I.] ORIGIN AND NATURE. 17 
 
 or other holder, ia the hands of the Acceptor.^ Heuce 
 it is, that after such acceptance, the Acceptor is treated 
 as the primary or principal dehtor of the Payee, or 
 other holder, and that the Drawer, and other parties on 
 the Bill, are held to be collaterally liable only to the 
 Holder upon the default of payment by the Acceptor. 
 In point of fact, however, it often happens, that this 
 natural character of the transaction, and relative position 
 of the parties, become entirely changed. The Drawer 
 often draws the bill for the mere private accommodation 
 and use of the Payee, without receiving any value 
 therefor ; the Drawee often accepts for the mere ac- 
 commodation and use of the Drawer or Payee, without 
 having any funds of either in his hands ; and, on the 
 other hand, the Drawer or Payee often acts as a 
 mere formal instrument, solely for the benefit and ac- 
 
 1 In discussing the doctrines relative to Bills of Exchange, I have ex- 
 amined many of the old continental writers upon the subject, such as 
 Scaccia (De Comm. § 1, Quest. 2, p. 99, et seq.,) Marquardus (De Jure 
 Mar. Lib. 2, ch. 12, p. 313, et seq.,) and Strykius, Disputatio de Camb. 
 Liter. Dissert. 18, cap. 1, Tom. 7, p. 348 (edit. 1745.) But I cannot say 
 that I have derived much instruction from them, or that they throw much 
 light on the subject. Jousse, in his Commentary on the Ordinance of 
 Louis XIV. of 1673, contains more information. But Pothier is the first 
 French writer, who seems to have treated the subject with scientific accu- 
 racy and fulness ; and the modern discussions of Locr6, Pardessus, and 
 Delvincourt, and Merlin (in his Repertoire), have afforded me many useful 
 and important suggestions. The old English writers, such as MoUoy, and 
 Marius, and Beawes, have become almost obsolete. Even Cunningham 
 and Kyd are now rarely referred to ; and Chitty and Bayley on Bills, are 
 now the most full and instructive guides as to all the leading doctrines of' 
 English Law on the subject. In truth, the Law of Bills of Exchange, 
 and Promissory Notes, and other negotiable paper, has mainly grown up 
 since Lord Mansfield came upon the Bench ; and we owe more to his 
 labors on this subject, than we probably do to any other single judicial 
 mind, although vast contributions have been made to the subject by the 
 learned and able judges who have succeeded him. 
 2* 
 
18 BILLS OP EXOHANGE. [CH. I. 
 
 commodatiou of the Drawee or Acceptor. In all these 
 cases, the bill is, in the language of the commercial 
 world, an accommodation draft, or acceptance ; and 
 yet, as between the parties and a subsequent holder 
 for value, the" same general rights, duties, and obliga- 
 tions, exist, as if the transaction were in reality, yhat 
 it purports in theory to be.' Nay; the remedy to be 
 administered, as to the holders, usually remains in each 
 case the same, and is governed- by the same consider- 
 ations. Thus, for example, as the Acceptor is treated 
 in each case as the primary debtor, an action for money 
 had and received will lie in favor of the Holder against 
 him ; but it will not lie in his favor against the 
 Drawer, or an Indorser, from whom he derives his title 
 remotely, and not directly, since they are deemed 
 parties to a collateral engagement only. But this will 
 be more fully seen hereafter. 
 
 § 14. Bills of Exchange in most, if not in all, com- 
 mercial couhtries, possess some peculiar advantages and 
 privileges over common contracts. Some of these 
 privileges are connected with the peculiar and summary 
 remedies given to enforce the rights growing out of 
 them; such, for example, as exist in France and in 
 Scotland.^ Others are of a nature giving them a pe- 
 culiar sanctity and obligation, and freeing them from 
 the equities and cross claims which may exist between 
 the original parties. These latter are allowed in order 
 to give them a ready circulation, and extensive credit ; 
 
 1 See Pniaus v. Van Mierop, 3 Burr. 1663, 1671, 1672. 
 
 2 See Jousse, Coram, sur L'Ord. of 1673, tit. 5, art. 12, 13, p. 102 to 
 106 ; Code de Coram, art. 164 to 168, art. 172 ; Pothier de Change, n. 124 
 to 127 ; 1 Bell, Coram. B. 3, ch. 2, § 4, p. 387, 393, 395 (5th edit. 1826) ; 
 Bell, Prine. of Law of Scotland, § 343, 344 ; Bell, lUustr. of Law of 
 Scotland, Vol. 1, § 343, 344. 
 
CH. I.] OEIGIN AND NATUKE. 19 
 
 and, indeed, they seem indispensable to protect third 
 persons, who may become holders thereof, from injury 
 and imposition. If, (for example,) the original parties 
 to the instrument were at liberty to set up against a 
 hond fide holder for a valuable consideration, without 
 notice, any facts which might impeach its original vali- 
 dity, or might show, that it had subsequently become 
 void, or that no consideration whatever passed between 
 the original parties, or that the consideration had since 
 utterly failed ; it is obvious, that the credit and confi- 
 dence due to the instrument would be essentially 
 impaired, and it could not be safely relied upon as a 
 means of remittance of money from one country to 
 another, or even between different places in the same 
 country. On the other hand, by shutting out all such 
 defences against such a holder, the instrument has, for 
 many practical purposes, become an equivalent to, and 
 a representative of, money ; and it circulates through 
 the commercial world, as an evidence of valuable 
 property, of which any person, lawfully in possession, 
 may avail himself, to make purchases, to pay debts, 
 and to pledge, as a security or indemnity for advances. 
 § 15. Hence, it has become a general rule of the 
 commercial world, to hold Bills of Exchange as in some 
 sort sacred instruments in favor of lond fide holders for 
 a valuable consideration without notice ; and if ever 
 the maxim is to be applied to the concerns of trade and 
 commerce, Fides servanda est, Simplicitas juris gentium 
 prcevaleat, a case can scarcely be imagined in which its 
 cogency and moral propriety can be applied with more 
 beneficial results.^ 
 
 1 Pillaus V. Van Mierop, 3 Burr, R. 1671, 1672. 
 
20 BILLS OF EXCHANGE, [CH. I. 
 
 § 16. At the Common Law, although a Bill of Ex- 
 change is not a specialty, for no contract is by that law 
 a specialty, unless it is matter of record, or under seal ;^ 
 yet, in many respects, a Bill of Exchange enjoys as 
 high an importance, and imports as absolute a verity. 
 Thus, for example, an obligation under seal will bind 
 the party executing it, although there be no consider- 
 ation whatsoever stated upon the face of it ; and none 
 need be established in proof, because, from the solem- 
 nity of the instrument, and its deliberate mode of ex- 
 ecution, the law presumes, that it is founded upon an 
 adequate consideration. And hence, it is often said, 
 that a- sealed obligation or covenant imports of itself a 
 sufficient consideration to support an action thereon.^ 
 Whereas, in parol contractsj (under which denomina- 
 tion all written, as well as verbal, unsealed contracts 
 fall,) not only must a sufficient consideration exist, and 
 be averred ; but it must also be proved, to entitle the 
 party to recover. In this respect Bills of Exchange 
 constitute an exception, and follow the nature of a 
 specialty.^ They are presumed to stand upon a valu- 
 able consideration, andi primd facie import it; nor is it 
 necessary to aver or to prove, what the particular con- 
 sideration is, for which they are given ; and if on their 
 face they do not purport to be given' for " value receiv- 
 ed," an action of debt, as well as an action of assumpsit, 
 will lie thereon by the Payee against the Drawer,* and 
 
 1 2 Black. Comm. 465, 466; Id. 340 to 342. 
 
 2 Chitty on Bills, p. 2, 10, 11 (8th edit. 1833) ; 2 Black. Comm. 445, 
 446 ; Sharington v. Strotten, Plowd. K. 308, 309 ; Tumer v. Bincor, 
 Hard. R. 200. .- 
 
 3 Rana v. Hughes, 7 Term R. 350, note ; Sharington v. Strotten, 
 Plowd. R. 308, 309. 
 
 * Bishop V. Young, 2 Bos. & Pull. 78, 83 ; Hard's Case, Salk. 23 ; 
 Hodges V. Starvard, Skinn. R. 346. 
 
CH. I.] ORIGIN AND NATURE. 21 
 
 by the Drawer against the Acceptor.* A fortiori, the 
 rule will apply, where they purport to be •'' for value 
 received/' and the consideration need not be more par- 
 ticularly stated ; although it would be otherwise in the 
 dase of other common contracts.® So that they afford 
 a firm security to the Holder, which, although' liable 
 under certain circumstances to be impeached, is, in the 
 absence of all proofs to the contrary, treated as of 
 absolute and conclusive obligation.^ 
 
 § 17. Another circumstance, in which a Bill of Ex- 
 change materially differs from ordinary contracts at the 
 Common Law, is in its negotiable or assignable quality, 
 when made payable to the order of a party, or to the 
 Bearer. In general, by the strict rule of the old Com- 
 mon Law, a chose in action, that is to say, a right or 
 credit not reduced into possession, (which a Bill of Ex- 
 change certainly is) was not assignable at all; and even 
 now it is not assignable, so as to vest a legal title in 
 the Assignee, and to entitle him to maintain a suit at 
 law thereon in his own name.* At most, the assign- 
 ment passes only the equitable title to the Assignee, 
 which may be enforced by a Bill in Equity. But if a 
 
 1 Bayley on Bills, ch. § 13, 1, p. 40 (5th edit. 1830) ; Hatch d. Trayes, 
 11 Adolph. & Ellis,' 703 ; Kyd on Bills, p. 47 (3d edit.) 
 
 2 See Trier v. Bridgman, 3 East, R. 359 ; .Blankenhagen v. Blundell, 2 
 Barn. & Aid. 417 ; Carlos v. Fancourt, 5 Term R. 482. 
 
 3 Chitty on Bills, p. 10, 1 1 (8th edit. 1833) ; 2 Black. Comm. 445, 446 ; 
 1 Eonbl. Eq. B. 1, ch. 5, § 1, note (a) ; Kyd on Bills, p. 47 (3d edit.) 
 
 4 Chiity on Bills, 6, 7 (8th edit.) ; Lampet's Case, 10 Co.R. 48 a ; 1 
 Fonbl. Eq. B. 1, ch. 4, § 2, note (g) ; Co. Litt. 214 a, 232 b, and Butler's 
 note ; 2 Black, Comm. 442, 468 ; Welch v. Mandeville, 1 Wheat. R. 
 233 ; Worcester Bank v. Wells, 8 Mete. B. 107 ; Greenleaf on Evid. ^ 
 173, note (3). In Stewart v. Eastwood, 11 Mees. & Wels. R. 197, 201, 
 Mr. Baron Parke said ; "A bill of Exchange is a peculiar chattel, and 
 only passes by indorsement or by delivery of it, when it is payable to 
 Bearer." 
 
22 BILLS OF EXCHANGE. [CH. I. 
 
 suit is brought at law after the assignment, it must be in 
 the name of the Assignor, although the avails thereof 
 may be for the benefit of the Assignee.' But Bills of 
 Exchange, made negotiable, in their form and character, 
 have been constantly held to be an exception to thfe 
 rule, founded as well upon the custom of merchants, as 
 upon the necessities of commerce.® Whenever, there- 
 fore, any negotiable bill is indorsed by the Payee, and 
 assigned or delivered (as the case may require) to the 
 Assignee or Holder, the latter may maintain a suit 
 thereon in his own name against the antecedent parties, 
 whose names are on the bill, to recover the amount, in 
 case of any dishonor or non-payment, according to the 
 exigency thereof. 
 
 § 18. There can be no real question, that this nego- 
 tiable quality of Bills of Exchange, was adopted into 
 the law of England, from the established practice and 
 principles of the commercial nations of the Continent 
 of Europe, which had been early incorporated into the 
 usage and customs of merchants in England. Indeed, 
 some writers have treated "it to have prevailed in Eng- 
 land time out of mind.^ 
 
 § 19. In the Civil Law, and in the jurisprudence of 
 the modern commercial nations of Continental Europe, 
 there does not seem to have been any -foundation for 
 such an objection to the assignment of debts ; for all 
 
 1 Com. Dig. Chancery, 2 H. ; 1 Fonbl. Eq. B. 1, ch. 4, § 2, note (g) ; 
 2"Story, Eq. Jurisp. § 1039, 1040 ; Butler's note to Co. Litt. 232, b. ; 2 
 Black. Comm. 442, 468 ; Chitty on Bills, 6 to 9 (8th edit. 1833) ; Bauer- 
 man V. Radenius, 7 Term R. 663 ; Master v. Miller, 4 Term R. 320, 342 ; 
 Johnson v. Collins, 1 East, R. 104. 
 
 2 2 Black. Comm. 468; Chitty on Bills, 9, 10 (8th edit. 1833) ; Holford 
 V. Blatehfotd, 2 Sandford, Ch. R. 150. 
 
 3 Cunningham on Bills, § 3, p. 8, n. 2. 
 
CH. I.] • OEIGIN AND NATUEE. 23 
 
 debts were, from an early period, allowed to be assigned, 
 if not formally, at least in legal effect ; and for the 
 most part, if not in all cases, they may be sued for in 
 the name of the Assignee.' The Code of Justinian 
 
 1 Pothier has stated the old French Law upon this subject (which does 
 not in substance probably differ from that of the other modern states of 
 Continental Europe), in very explicit terms, in his Treatise on the Con- 
 tract of Sale, of which an excellent Translation has been made by L. S. 
 Gushing;, Esq. The doctrines therein stated are in many respects so nearly 
 coincident with those maintained by our Courts of Equity, that I have 
 ventured to transcribe the following passages from Mr. .Cushing's work. 
 "A credit being a personal right of the creditor, a right inherent in his 
 person, it cannot, considered only according to the subtlety of the law, be 
 transferred to another person, nor consequently be sold. It may well pass 
 to the heir of the creditor, because the heir is the successor of the person 
 and of all the personal rights of the deceased. But, in strictness of law, 
 it cannot pass to a third person ; for the debtor, being obliged towards a 
 certain person, cannot, by a transfer of the credit, which is not an act of 
 his, become obliged towards another. The jurisconsults have, neverthe- 
 less, invented a mode of transferring credits, without either the consent 
 or the intervention of the debtor. As the creditor may exercise against 
 his debtor, by a mandatary, as well as by himself, the action, which re- 
 sults from his credit. When he wishes to transfer his credit to a third 
 person, he makes such person his mandatary, to exercise his right of 
 action against the debtor; and it is agreed between them, that the action 
 shall be exercised by the mandatary, in the name indeed of the mandator, 
 but at the risk and on the account of the mandatary, who shall retain 
 for himself all that may be exacted of the debtor in consequence of the 
 mandate, without rendering any account thereof to the mandator. Such a 
 mandatary is called, by the jurisconsults, Procurator in rem suam, because 
 he exercises the mandate, not on account of the mandator, but on his own. 
 A mandate, made in this manner, is, as to its effect, a, real transfer, which 
 the creditor makes of his credit ; and if he receives nothing from the 
 mandatary, for his consent, that the latter shall retain to his own use what 
 he may exact of the debtor, it is a donation ; if for this authority, he 
 receives a sum of money of the mandatary, it is a sale of the credit; 
 From which, it is established in practice, that credits may be transferred, 
 and may be given, sold, or disposed of by any other title ; and it is not 
 even necessary that the act, which contains the transfer, should express 
 the mandate, in which, as has been explained, the transfer consists. The 
 transfer of an annuity or other credit, before notice of it is given to the 
 debtor, is what the sale of a corporeal thing is, before the delivery ; in 
 
24 BILLS OF EXCHANGE. • [CH. I, 
 
 says; Nominis autem vendUio (distinguishing between 
 the sale of a debt, and the delegation or substitution of 
 
 the same manner, that the seller of a corporeal thing, until a delivery, 
 remains the possessor and proprietor of it, as has been established in 
 another place. So, until the assignee notifies the debtor of the assign- 
 ment made to him, the assignor is not divested of the credit, which he 
 assigns. This is the provision of art. 108, of the Custom of Paris ; 'A 
 simple transfer does not divest, and it is necessary to notify the party of 
 the transfer, and to famish him with a copy of it.' From which, it fol- 
 lows, first, that before notice, the debtor may legally pay to the assignor, 
 his creditor ; and the assignee has no action, in such case, except against 
 the assignor, namely, the action ex emplo, ut priesiei ipsi habere licere; and, 
 consequently, that he should remit to him the sum, which he is no longer 
 able to exact of the debtor, who has legally paid the debt to the assignor, 
 Second, that before notice, the creditors of the assignor may seize and 
 arrest that which is due from the debtor, whose debt is assigned ; and they 
 are preferred to the assignee, who has not, before such seizure and arrest, 
 given notice of the assignment to him ; the assignee, in this case, is only 
 entitled to his action against the assignor, namely, the action ex empto, in 
 order, that the \sx\.er priestet ipsi habere licere; and, consequently, that he 
 should report to him a removal of the seizures and arrests, or pay him the 
 sum, which, by reason thereof, he is prevented from obtaining of the debtor. 
 Third, that if the assignor, after having transferred a credit to a first 
 assignee, has the bad faith to make a transfer of it to a second, who is 
 more diligent than the first, to give notice of his assignment to the debtor, 
 the second assignee will be preferred to the first, saving to the first his 
 recourse against the assignor. Though the assignee notifies to the debtor 
 the assignment to him, the assignor, in strictness of law, remains the 
 creditor, notwithstanding the transfer and notice ; and the credit continues 
 to be in him. This results from the principles established in the preceding 
 article-; but, quoad juris effectus, the assignor is considered, by the notice 
 of the transfer given to the debtor, to be devested of the credit, which he 
 assigns ; and is no longer regarded as the owner of it ; the assignee is 
 considered to be so ; and, therefore, the debtor cannot afterwards legally 
 pay the assignor ; and the creditors of the assignor cannot, from that time, 
 seize and arrest the credit, because it is no longer considered to belong to 
 their debtor. Nevertheless, as the assignee, even after notice of the trans- 
 fer, is only the mandatary, though in rem suam, of the assignor, in whose 
 person, the credit, in truth, resides ; the debtor may oppose to the, assignee 
 a compensation of what the assignor was indebted to him, before the 
 notice of the assignment; which, however, does not prevent him from 
 opposing also a compensation of what the assignee himself owes him ; the 
 assignee being himself, non quidem ex juris subtilitate, sed juris effectu, 
 
CH. I.J ORIGIN AND NATURE. 25 
 
 one Debtor for another for the same debt) et ignorante, 
 vel invito eo, adversws quern adiones mandmtur, contrahi 
 solet} And Heineccius, after remarking, that Bills of 
 Exchange are for the most part drawn, payable to a 
 person or his order, says, that although this form be 
 omitted, yet an. indorsement thereof may have full 
 effect, if the laws of the particular country respecting 
 exchange do not specially prohibit if; because an assign- 
 ment thereof may be made without the knowledge and 
 against the will, of the Debtor ; and he refers to the 
 passage in the Code in proof of it.^ But he adds 
 (which is certainly not our law), that if the Bill be 
 drawn payable to the order of Titius, it is not to be paid 
 to Titius, but to his indorsee. Tunc enim Titio solvi non 
 potest, sed ejus indossatario? The same general doctrine 
 as to the assignability of Bills of Exchange, payable to 
 a party, but not to his order, is aflBrmed in the Ordi- 
 
 crediior." Pothier on Sale, by Gushing, n. 550, n. 555 to n. 559. The 
 modern French Law has gotten rid of the subtlety as to the suit being 
 brought in the name of the assignor upon contracts generally ; for it may 
 now (whatever might have been the case formerly) be brought in the name 
 of the Assignee, directly against the Debtor. See Troplong des Privil. et 
 Hypoth. Tom. 1, n. 340 to 343 ; Code Civ. of France, art. 2112 ; Id. 1689 
 to 1692 ; Troplong de la Vente, n. 879 to 882, n. 906, 913. 
 
 1 Cod. Lib. 8, tit. 43, 1. 1 ; 1 Domat, B. 4, tit. 4, § 3, 4. 
 
 2 Heinecc. de Camb. cap. 2, § 8 ; Id. cap. 3, § 21 to 25. — Heineccius, 
 in a note, says, that in Franconia and Leipsic, no assignment is of any 
 validity, if the formulary of its being payable to order is omitted. The 
 presenl; law of France is the same, so far as the general negotiability of 
 Bills is concerned, and to give them circulation, unaffected by any equities 
 between the Payee and the Debtor, as will be seen in the sequel. Par- 
 dessus. Droit Comm. Tom. 2, art. 339, p. 360 ; Delvincourt, Inslit. Droit 
 Comm. Tom. 1, Liv. 1, tit. 7, Pt. 2, p. 114, 115. Delvincourt says, that 
 the right of a simple Bill (not payable to order) is transferable only by 
 an act of transfer made known to the Debtor. See also Merlin, Rupert, 
 Lettre et Billet de Change, § 4, 8, p. 196, 252 (edit. 1827.) 
 
 3 Heinecc. de Camb. cap. 2, § 8. 
 
 B. OF EX. 3 
 
26 BILLS OF EXCHANGE. [CH. L 
 
 nance of France of 1673 (art. 12), as soon as the trans- 
 fer is made known to the Drawee or Debtor.^ Indeed; 
 the like doctrine prevails now in France, not only in cases 
 
 1 Jousse, sur, L'Ordin. 1673, art. 30, p. 123. The article, and Jousse's 
 commentary, are as follows ; Art. 30, " Les Billets de Change, payables 
 4 un particulier y nomm6, ne seront reputez appanenir i autre, encore qu'il 
 y eust un transport signifife, s'ils ne sont payables au porteur, ou k ordre, 
 Les Billets de Change, La disposition contenue en cet article ne doit pas 
 s'6tendre aux autres billets, parce que suivant le droit commun on pent 
 disposer des billets et promesses par obligation et transport, et que le 
 transport signifi6 saisit celui au profit de qui il est fait, suivant la disposi- 
 tion de I'article 108 de la CoAtume de Paris. La raison pour laquelle 
 rOrdonnanoe d6roge ici au droit commun, i regard des billets de change, 
 payables k un particulier y nomm6, et afin d'abolir I'usage des transports 
 et significations en cette mati^re, qui est proprement de n^goce, et oix tout 
 doit £tre sommaire. N^anmoins en examinant plus particuliSrement le 
 sens de cet article, il oarait, que I'esprit de I'Ordon. n'est pas d'abolir 
 I'usage des transports des billets de change, qui ne sont point payables au 
 porteur, ou k ordre : car il semble qu'on ne peut empfieher un particulier 
 proprifetaire d'un billet de cette espfece de transferer la propri6t6 de ce 
 billet k celui au profit de qui le transport aurait 6t6 consenti. En effet, si 
 Ton fait attention, que I'esprit de I'Ordonnance est de conserver au d6bi- 
 teur, qui a consenti des billets payables k un particulier, les mfemes excep- 
 tions contre les cessionnaires de ces billets, que celles que le ddsbiteur lui- 
 meme aurait pu opposer au cr6ancier, qui en 6tait originairement proprid- 
 taire, sans distinguer, si la cession ou transport a 6t6 signifide ou non, il 
 sera ais6 de se convaincre, que I'Ordonnance n'a jamais eu intention d'abolir 
 I'usage des cessions et transports en mati^re de billets de change, qui ne 
 sont point payables au porteur ou k ordre, mais qu'elle a seulement en- 
 tendu marquer en cet article la diSference, qu'il y a entre les billets pay- 
 ables k un particulier y nommd, et les billets payables au porteur on k 
 ordre. Dans les billets payables au porteur ou k ordre, celui, qui en est le 
 porteur, n'a pas k craindre, que le ddbiteur puisse lui opposer aucune ex- 
 ception du chef de son c6dant, le porteur, quel qu'il soit, en 6tant le veri- 
 table propri6taire, ainsi que s'il avait dtd originairement consenti en sa 
 favour. Mais dans les billets payables k un particulier y nomm6, le ces- 
 sionnaire ne peut jamais avoir plus de droit que ce particulier, et ne peut 
 fiviter par consequent que toutes les exceptions,, qui auront pu 6tre op- 
 posfees k ce particulier, ou cedant, ne puissent lui 6tre oppos6es k lui-meme 
 C'est dans ce meme sens que les articles 18 et 19 de ce titre distinguent au 
 sujet du paiement d'une lettre adhir^e, si cette lettre est payable k un 
 particulier y nomm6, ou si elle est payable au porteur ou a ordre : le paie- 
 
CH. I.] ORIGIN AND NATURE. 27 
 
 of Bills of Exchange, but of contracts generally; so 
 that the Assignee may now sue therefor in his own 
 name after the assignment, subject, however, to all the 
 equities, subsisting between the parties before and at the 
 time, when the Debtor has notice of the assignment.^ 
 § 20. And here it may, in this connexion, be again 
 suggested (what, indeed, has been already alluded to), 
 that the jurisprudence, which regulates Bills of Ex- 
 change, can hardly be deemed to consist of the mere 
 municipal regulations of any one country. It may, 
 with far more propriety, be deemed to be founded 
 upon, and to embody, the usages of merchants in dif- 
 ferent commercial countries, and the general principles, 
 ex cequo et hono, as to the rights, duties, and obligations, 
 of the parties, deducible from those usages, and from the 
 principles of natural law applicable thereto. Heineccius 
 has truly observed upon this subject; "Jus illud cambiak 
 pro habitu accipias, id est, pro ipsa jurisprudentia camhiali, 
 erit haMtus pradicus, leges et consududines canibiaks, recte 
 intelligeiidi, interpreiandi, adplicandique controversiis ex lit- 
 teris camliaMus ortis." ^ The subject, however, will pro- 
 perly come more fully under our review hereafter.^ 
 
 ment dans le premier cas pouvant etre fait sans aucune precaution, en vertu 
 d'une seconde lettre ; au lieu que dans le second cas le paiement ne pent 
 fitre fait que par Ordonnance du Jug^e, et en donnant caution." 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 313 ; Troplong de Priv. et 
 Hypoth. Tom. 1 ; Troplong de la Vente, n. 879 to 913 ; Code Civil of 
 France, art. 1689 to 1693 ; Id. art. 2112 ; Id. art. 1295 ; Locr6, Esprit du 
 Code de Comm. Tom. 1, Liv. 1, tit. 8, p. 342; Pothier de Vente, n. 551 
 to n. 660. 
 
 2 Heinecc. De Camb. ch. 1, § 12. 
 
 3 Mr. Mittermaier, in the Revue Etrang. et Fran^. by Foelix, for Sept. 
 1841, and Feb. 1842, has, in a learned dissertation, stated the progress and 
 actual legislation respecting Bills of Exchange in the different countries of 
 Europe. Tom. 7, p. 849, Tom. 8, 109. 
 
28 BILLS OP EXCHANGE. [CH. II. 
 
 CHAPTER II. 
 
 DIFFERENT KINDS OP BILLS OF EXCHANGE. 
 
 § 21. Exchange has been divided into various sorts 
 by foreign jurists, as well as by the early writers upon 
 the English law. Thus, for example, (as has been 
 already stated,) there is what by the foreign jurists is 
 called CamUum reale vel manuak, which is merely the 
 exchange of one species of money for another species 
 in the same place, which bears no resemblance to our 
 modern Bills of Exchange ; and there is what is called 
 Cambium locale, mercantile, trajectitium, which is pro- 
 perly what we call a Bill of Exchange.^ And, then, 
 among our own writers Exchange has been divided 
 into Cambio commune, Camhio real, Cambio sicco, and 
 Cambio fictitio, the explanations of which are now. of no 
 practical importance.^ 
 
 § 22. But a division of very great practical impdrt- 
 ance is that of Bills into foreign Bills of Exchange, 
 and into inland Bills of Exchange, as the rights of pro- 
 ceeding and remedies thereon are not exactly coincident, 
 or uniformly governed by the same doctrines and regu- 
 lations. A Bill of Exchange is properly denominated 
 a foreign Bill (formerly called an outland Bill') when 
 it is drawn in one state or country, upon a foreign state 
 
 1 Heineoe. De Camb. cap. 1, § 5, 6 ; Pothier de Change, n. 1, 2. 
 
 2 Beawes, Lex Merc, by Chitty, vol. 1, p. 560 (edit. 1813)-; Molloy, 
 vol. 2, B. 2, ch. 10, § 4; Cunningham on Bills, § 2, p. 6, 7 ; Marius on 
 Bills, p. 1, 3, 4. — The definitions or explanations of these various kinds 
 of Exchange are given very much at large by all these writers. 
 
 3 Marius on Bills, p. 2. 
 
CH. II.] DIFFEBENT KINDS. 29 
 
 or country ; as, for example, when drawn by a person 
 in America, upon a person resident in England, and 
 payable by the latter, — or vice versd. And it is pro- 
 perly denominated an inland Bill (which is equivalent 
 to the expression, that it is a domestic or intra-territorial 
 Bill) when both the Drawer and Drawee reside in the 
 same state or country .■^ But what properly constitutes, 
 in the sense of the law, a foreign state or country, has 
 been a matter of some doubt and judicial discussion. 
 Thus, after the union of England and Scotland, and 
 subsequently, after the union of Great Britain and Ire- 
 land, it became a question, whether Scotland and Ire- 
 land were to be deemed foreign countries within the 
 sense of the rule, as to Bills drawn there upon England, 
 or vice versd. It has been adjudged, that they are to 
 be deemed foreign BlUs.^ Before the union of England 
 and Scotlarid, it is very certain, that the two kingdoms 
 were deemed foreign to each other, although they were, 
 at the time, under the dominion of the same sovereign; 
 and the union of the two kingdoms into one, still left 
 each of them for some purposes separate and distinct, 
 as, for example, as to its local laws and jurisprudence ; 
 and it has not been supposed to have merged the sove- 
 reignty of the one entirely in the other. The same con- 
 siderations are in some measure still applicable to Ire- 
 land since the union of the latter with England and 
 Scotland. It still retains its own lo6al laws and juris- 
 
 1 2 Black. Comtn. 467; Chitty on Bills, p. 12 (8th edit. 1833) ; Kyd on 
 Bills, p. 10, 11 (3d edit.) ; Bayley on Bills, ch. 1, § 8, p. 26 (5th edit. 
 1830) ; Cunningham on Bills, ch. 1, § 4, n. 1, p. 15 ; Rothschild v. Cur- 
 rie, 1 Adolph. & Ell. New R. 43. 
 
 8 See King v. Walker, 1 Wm. Black. R. 286 ; Mahoney v. Ashlin, 2 
 Bam. & Adolph. 478 ; Bayley on Bills, ch. 1, § 8, p. 26 (5lh edit. 1830) ; 
 Chitty on Bills, p. 12 (edit. 1833) ; 1 Bell, Coram. B. 3, ch. 2, ^ 4, p. 
 419 (5th edit.) 
 
 89* 
 
30 BiLLS OF EXCHANGE. [CH. II. 
 
 prudence, and for some purposes is treated as a sepa- 
 rate government under the same common sovereignty. 
 It was with much significance said by Lord Tenterden, 
 in a case, where the question was directly before the 
 Court; "It is, indeed, admitted, that Irish and Scotch 
 Bills, drawn upon England, were foreign, before the 
 respective unions between the countries; and it does 
 not follow, because Ireland and Scotland were united 
 into one kingdom with this, that the Bills drawn there, 
 which before were foreign, became inland Bills." ^ In- 
 deed, looking to the true nature and objects of the rule, 
 it would seem to be reasonable to hold, that every Bill 
 should be treated as a foreign Bill, which is drawn in 
 one country upon another country, not governed by the 
 same homogeneous laws ; since in its origin and cha- 
 racter it is subject to local regulations, local interpreta- 
 tions, and local obligations and restrictions, varying 
 from those, where it is drawn ; and it may thus become 
 affected by all the other considerations, arising from 
 the application of the Lex loci contractus. It may be 
 truly said, in a just and liberal sense, that a Bill of 
 Exchange is foreign, which is not governed throughout 
 by our own municipal jurisprudence, as an inland Bill 
 exclusively is. 
 
 § 23. Be this as it may, it is now well established, 
 although formerly a subject of some conflict of juridi- 
 cal opinion, that a Bill of Exchange, drawn in one 
 State of the United States of America upon a person, 
 resident in another State, is a foreign Bill.^. And this 
 
 1 Mahoney v. Ashlin, 2 Barn. & Adolph. R. 478, 482. 
 
 2 Miller v. Hackley, 5 John. R. 375 ; Duncan v. Course, 1 So. Car. R. 
 100 ; Lonsdale v. Brown, 4 Wash. Circ. R, 86 ■ Id. 148 ; The Phcenix 
 Bank v. Hussey, 13 Pick. R. 483 ; Buckner v. Finley, 2 Peters, R. 586 ; 
 
CH. II.] DIFFERENT KINDS. 31 
 
 doctripe is founded upon clear and deterininate princi- 
 ples ; for not only has each State a separate and dis- 
 tinct municipal jurisprudence, founded upon its custom- 
 ary or common law, or statutable enactments ; but each 
 State is absolutely sovereign in its political organization 
 and government and dominion, saving and excepting 
 only so far, as there is a limited suprerne sovereignty 
 conferred upon the national government by the Consti- 
 tution of the United States.' 
 
 § 24. But questions may still arise upon the circum- 
 stances of particular cases, involving considerations of 
 a, nice and peculiar character, vphether a Bill is to be 
 treated as a foreign Bill of Exchange, or not. Thus, 
 for example, suppose a Bill, purporting upon its face 
 to be drawn in Paris, by a person resident there, upon 
 another person resident in London, and yet, in point of 
 fact, both the parties were then resident in London, and 
 the Bill was drawn there for the very purpose of giving it 
 the appearance of a foreign transaction, and to disguise 
 its domestic origin; the question might then arise, 
 whether, upon proof of the facts, it should be treated as 
 a foreign Bill or not. The rule upon this subject would 
 seem to be, that as to third persons, who take the Bill 
 without notice of its domestic origin, it ought to be 
 deemed a foreign Bill, but as between the original par- 
 
 Wells V. Whitehead, 15 Wend. R. 527 ; Holliday v. McDongal, 12 Wend. 
 R. 264, 272; Warren v. Coombs, 2 Appleton, R. 139 ; Strawbridge v. 
 Robinson, 5 Gilm. 111. R. 470 ; But see Robbins v. Pinckard, 5 Smedes & 
 Marshall, R. 51 ; Grafton Bank i>. Moore, 14 N. H. 142 ; Abon v. Bosworlh, 
 1 Rhode Island, 401. 
 
 1 Miller V. Haekley, 5 John. R. 375 ; Duncan v. Course, 1 So. Car. R. 
 100 ; Lonsdale v. Brown, 4 Wash. Circ. R. 86 ; Id. 148 ; The Phcenix 
 Bank v. Hussey, 12 Pick. R. 483 ; Buckner v. Finley, 2 Peters, E. 686 ; 
 Wells V. Whitehead, 15 Wend.E. 527; Holliday v. McDougal, 12 Wend. 
 E. 264, 272. 
 
32 
 
 BILLS OF EXCHANGE, [CH. IL 
 
 ties, and others claiming under them with full notice, 
 it ought to be deemed a domestic or inland Bill.' But 
 if really drawn in a foreign country, although not drawn 
 at the very place, where it bears date, as, for example, 
 if really drawn in another place in France, and yet 
 dated at Paris, there would not seem to be any just ob- 
 jection to considering it a foreign Bill.^ 
 
 § 25. Other cases may easily be suggested, which 
 may give rise to discussions of a similar nature. Thus, 
 suppose a merchant, resident in Ireland, should there 
 hond fide, and without any intention of fraud, draw a 
 Bill on the proper Irish stamps, as required by law, on 
 a person resident in London, and should sign and indorse 
 the same, leaving blanks for the date, the sum, and the 
 time when payable, or even leaving a blank for the 
 name of the Drawee in London, and then should remit 
 the same to his correspondent in London, to have all 
 the blanks filled up, and they should be accordingly 
 filled up by him, and passed to a hond fide holder; the 
 question would arise, whether the Bill ought to be deemed 
 an English or inland Bill, or an Irish or foreign Bill. 
 And, upon principle, there would seem to be no doiibt, 
 that when so filled up, according to the intent of the 
 original Drawer, it ought to be deemed an Irish or fo- 
 reign Bill ; for from the moment it is so filled up, the 
 instrument becomes, by relation, the Bill of the Drawer 
 in Ireland, as much as if it had been, in all its particu- 
 lars, drawn and filled up with his own hand.^ The 
 1 . 
 
 2 See Strawbridge v. Robinson, 5 Gilm. 111. K. 470. 
 
 ' Bii6 V. Moreau, 2 Carr. & Payne, R. 376. 
 
 2 Snaith v. Mingay, 1 Maule & Selw. 87 ; Russell v. Langstaff, Doug. 
 R. 513 ; Collis v. Emett, 1 H. Black. 313 ; Mitchell v. Culver, 7 Cowen, 
 R. 336 ; Violett v. Fatten, 5 Cranch, 143 ; Bayley on Bills, ch. 3, § 3, 4, 
 p. 82 (5th edit. 1830) ; Story on Conflict of Laws, § 289 ; 1 Bell Comm. 
 B. 3, ch. 2, § 4, p. 390 (5th edit.) 
 
CH. II.] DIFFERENT KINDS. 33 
 
 same rule would apply to the case, where a like Bill 
 was first filled up in England, and then remitted to Ire- 
 land, and there signed by the Drawer ; for it would be, 
 to all intents and purposes, a Bill drawn in Ireland on 
 England.^ Nay, in the first case, if the Drawer, after 
 signing and indorsing the Bill, should die before the 
 blanks were filled up, and then they were filled up, a 
 bond fide holder might recover the amount from the per- 
 sonal representatives of the Drawer, since, by relation, 
 it would be deemed to be a Bill, signed and indorsed 
 by him in his lifetime.^ 
 
 § 26. The forms of foreign Bills of Exchange, as 
 well as of inland Bills of Exchange, have varied at 
 different periods, and are even at the present time dif- 
 ferent in difierent countries.' Foreign Bills in England 
 are most commonly drawn upon some place upon the 
 Continent of Europe ; and in America, most commonly 
 upon some place in England or France. One of the 
 common forms of a Bill of Exchange drawn in England 
 upon France, would at the present time be substantially 
 
 1 Snaith v. Mingay, 1 Maule & Selw. 87, per Le Blanc, J. ; Russell v. 
 Langstaff, Doug. E. 513 ; CoUis v. Emett, 1 H. Bl. 313 ; Boehm v. 
 Campbell, Gow, R. 56 ; Bayley on Bills, ch. 3, ^ 3 .(5th edit. 1830), p. 
 166, 167 ; Violett v. Patton, 5 Cranch, 142. 
 
 2 Snaith v. Mingay, 1 Maule & Selw. 87, per Bayley, J. ;f Perry v. 
 Cramond, 1 Wash. Cir. R. 100 ; Usher v. Duncey, 4 Camp. R. 97 ; S. C. 
 8 Taunt. R. 679 ; Bayley on Bills, ch. 5, § 3, p, 168 (5th edit. 1830). 
 
 3 In the early forms of Bills of Exchange, many of which are given by 
 Scaccia, (Scaccia, De Camb. ^ 1, Quest. 5, p. 110 to 127; Id. p. 508 to 
 514, edit. 1664, Genevse), there was often an invocation of the Deity. 
 Heinecc. De Jur. Camb. cap. 4, § 3, 15. Scaccia gives one form in these 
 words, " Al nome de Dio, Amen, a di 1. di Febraro. 1381. — Pagate per 
 quaBsta litera ad usanza a voi medesimo libo 43 de grossi, sono per cambio 
 de Ducati 440, c'ho ricevuto da Seio Sempronio — a Titio." Scac- 
 cia, De Comm. § 1, Quest. 5, p. 118. See also Id. p. 508, 509 (edit. 
 1664). This is apparently in the same form cited by Baldus, Ante, § 9, 
 note (1.) , 
 
34 BILLS OF EXCHANGE. [CH. II. 
 
 as follows : " London, January 1, 1842. Exchange for 
 10,000 Livres Tournoises (or for 10,000 Francs). At 
 fifteen days after sight (or at fifteen days after date, or 
 at one usance, or two usances, &c.' as the case may be) 
 pay this my first Bill of Exchange (second and third of 
 
 the same tenor and date not paid) to Messrs. or 
 
 order (or to the order of Messrs. ) ten thousand 
 
 Livres Tournoises (or ten thousand Francs, as the case 
 may he) value received of them, and place the same to 
 my account, as per advice from James Jones." Ad- 
 dressed to Mr. Henry Kendrick, Banker, in Paris.^ 
 
 1 Kyd on Bills, p. 14 (3d edit.) ; Chitty on Bills, p. 166, 8th edit. Lon- 
 don. — Soaocia (Scaccia,-De Camb § 1, Quest. 5, p. 110 to 127; Id. p. 
 508, to 514, edit. 1664) has given many of the forms of Bills of Exchange, 
 used in different countries, at a very early day. Many forms are given in 
 Savary, Le Parfait N6gociant, Tom, 1, Pt; 3, Liv. 1, ch.4, p. 812 to 816. 
 Mr. Thomson, in his work on Bills of Exchange, gives the forms at pre- 
 sent used in Edinburgh. See Thompson on Bills of Exchange, (2d edit. 
 1836), Appx. 785 to 790. Marius (on Bills, p. 7 to 9) has given various 
 forms of the Bills drawn upon different countries in his own day. Beawes, 
 Lex Merc, by Chitty (edit. 1813, p. 611 to 613), has also given various 
 forms. Mr. Kyd (on Bills, p. 13 to 17) has given the following forms of 
 Bills, drawn in different countries, as modern forms. 
 
 " London, Jan. 18th, 1783. Exchange for £50 Sterl. At sight (of 
 this my only Bill of Exchange*) pay to Mr. John Rogers, or order, Fifty 
 Founds sterling, value' received of him, and place the same to account, as 
 per advice (or without further advice) from Samuel Skinner. To Mr. 
 James Jenkins, Merchant, in Bristol." 
 
 " London, the 18th of January, 1782. Exchange for 10,000 Liv. Tour- 
 noises. At fifteen days after date (or at one, two, &c. usances) pay this 
 my first Bill of Exchange, (second and third of the same tenor and date 
 rot paid,) to Messrs. John Rogers & Co. or order, Ten Thousand Livres 
 Tournoises, value received of them, and place the same to account', as per 
 advice from Thomas Bencraft. To Mr. Henry Kendrick, Banker, in Paris." 
 
 " London, Jan. 18th, 1783. Exchange for 10,000 Liv. Tournoises. 
 At fifteen days after date (or at one, two, &c. usances) pay this my second 
 Bill of Exchange, (the first and third of the same tenor and date not paid,) 
 to Messrs. John Rogers & Co. or order. Ten Thousand Livres Tournoises 
 value received of them, and place the same to account, as per advice from 
 Thomas Bencraft. To Mr. Henry Kendrick, Banker, in Paris." 
 *This is act always inserted. 
 
CH. II.] DIFFERENT KINDS.' 35 
 
 § 27. The common form of au inland Bill, drawn in 
 England, would be as follows : " £100. London, Jan- 
 uary 1, 1842. One month after sight (or after date or 
 at sight, or on demand, or ten days after sight, or after 
 
 date,) pay to Mr. or order (or to the order of 
 
 Mr.- ) one hundred pounds for value received. 
 
 Samuel Skinner. To Mr. , Merchant, at Bristol." ^ 
 
 " London, Jan. 18th, 1782. Exchange for 10,000 Liv. Tournoises. At 
 fifteen days after date (or at one, two, &c. usances) pay this my third Bill 
 of Exchange, the first and second of the same tenor and date not paid,) 
 to Messrs. John Rogers & Co. or order. Ten Thousand Livres Tournoises, 
 value received of them, and place the same to account, as per advice from 
 Thomas Bencraft. To Mr. Henry Kendrick, Banker, in Paris." 
 
 "London, January 18th, 1782. Exchange for D. 1000. At usance 
 pay this ray first of Exchange to Mr. Ignatio Testori, (or to the procura- 
 tion o/Mt. Ignatio Testori,) One Thousand Ducats Banco, value received 
 of Mr. Gregory Laman, and place it to account, as per advice from Nicho- 
 las Reubens. To Mr. James Roliottom, Merchant, in Venice." 
 
 " London, January 18th, 1782. Exchange for 1600 peroo R's. At 
 thirty days' sight, (or usance, &c.) pay this my first of Exchange, (second 
 and third as above,) to Samuel Fairfax, Esq. or order, One Thousand Six 
 Hundred Mil-Reas, value received of ditto, and place it to account, as pei 
 advice from Jeremiah Tomlinson. To Messrs. Brown & Black, Mer- 
 chants, at Lisbon." 
 
 " London, Jan: 18th, 1782. Exchange for £273 15s. sterl. at 35 Sh. 
 7 G. per £. sterl. At two uso's and a half, pay this my first of Ex- 
 change, (second, &c.) to Mr. Joseph Jacobs, or order. Two Hundred and 
 Seventy-three Pounds Fifteen Shillings sterl. at thirty-five shillings and 
 seven groots per pound sterling, value received of Mr. James Merry man, 
 and place it to account, as per advice from John Johnson. To Mr. David 
 Hill, Merchant, at Amsterdam." 
 
 " London, 22 September, 1789. For £200 sterl. at 35 Sh. Flemish. 
 Two months after date of this my first of Exchange, (second, &c.) pay to 
 D. E. or order, at his own house, Two Hundred Pounds sterl. at thirty- 
 five shillings Flemish per pound sterling, value received of him, and pass 
 the same to account, as per advice from Yours, &c. A. B. To Mr. Peter 
 Par, Merchant, at Amsterdam." 
 
 See in Merlin, Repertoire, Lettre et Billet de Change, § 2, art. 3, p. 
 183, 184 (edit. 1827,) the forms of a modern French Bill of Exchange. 
 Savary (Le Parfait N6gociant, Tom. l,p. 220, 221,) has also given many 
 forms in use in France. 
 
 1 Chitty on Bills (8th edit. London,) p. 166, 167 ; Syd on Bills (3d 
 
36 BILLS OF EXCHANGE. [CH. IL 
 
 § 28. The common form of a foreign Bill of Ex- 
 change, drawn in America upon England, would, at the 
 present time, be substantially as follows : " Exchange 
 for £1000 sterling. Boston, 1 January, 1842. At 
 sixty days after sight, pay to A. B. or order (or to the 
 order of A. B.), for value received, this my first of Ex- 
 change (second and third of the same tenor and date 
 not paid), one thousand pouryJs sterling, and charge 
 the same to my account, with or without further advice. 
 (Signed.) C. D. Addressed to Messrs. Baring, Brothers, 
 & Co. London." 
 
 § 29. The common form of an inland Bill in America 
 would be substantially as follows : " Exchange for 
 $1000. Salem, 1 January, 1842. Pay to A. B. or 
 order (or to the order of A. B.,) ten days after date (or 
 after sight, or at sight, as the case may be,) one thou- 
 sand dollars, for value received, and charge the same to 
 account of C. D. (Signed by him.) Addressed to E. P., 
 Boston, Merchant." 
 
 § 30. Before proceeding to consider more particularly 
 the nature of Bills of Exchange, and what things are, 
 and what things are not essential to their character and 
 validity, it may be proper to say a few words as to what 
 constitutes, in the sense of the commercial world, the 
 par of Exchange, and what the rate of Exchange. By 
 the par of Exchange {par pro pari) is meant, the pre- 
 cise equality or equivalency of any given sum or quan- 
 tity of money in the coin of one country, and the like 
 sum or quantity of money in the coin of any other fo- 
 reign country, into which it is to be exchanged, sup- 
 posing the money of each country to be of the precise 
 
 edit.,) p. 13 ; Beawes, Lex Merc, by Chitty (edit. 1813,) p. 611 ; Com. 
 Dig. MerciiantF. 5. 
 
CH. II.] DIFFERENT KINDS. 37 
 
 weight and purity fixed by the mint standard of the 
 respective countries.^ In order to arrive at this, it is 
 necessary to make assays of the comparative purity of 
 foreign coins, and to ascertain their intrinsic values, as 
 compared with the coin of the other country, into which 
 they are to be exchanged. Thus, for example, if any 
 two countries should happen to have a currency com- 
 posed of gold coin of .the same general denomination 
 and weight, as, for instance, a guinea, a doubloon, or a 
 Louis d'or, of the same weight, it would still be neces- 
 sary to ascertain, what is the intrinsic value or fineness 
 of each as compared with the other, or, in other words, 
 how much of pure gold each contained, and how much 
 alloy ; and, if one contained one tenth less of pure gold 
 than the otherj then its intrinsic value would or might 
 be one tenth less ; and the par of Exchange, being 
 measured by the intrinsic value, would of course vary 
 in the same proportion. Hence, the guinea, the doub- 
 
 1 Cunningham on Bills, p. 417, 418 (6th edit.) ; Beawes, Lex Merc, 
 by Chitty, vol. 1 (edit. 1813,) p. 562; Molloy, B. 2, ch. 10, ^ 8 ; Marius 
 on Bills, p. 4, 5, 6. — Mr. MoCuUoch says ; " The par of the currency of 
 any two countries means, among merchants, the equivalency of a certain 
 amount of the currency of the one in the currency of the other, supposing 
 the currencies of both to be of the precise weight and purity fixed by their 
 respective mints." McCulloch's Dictionary of Commerce, article, Ex- 
 change. I have preferred the expression of the same notion in coin, as the 
 word " currency" is sometimes apt to mislead. Marius says ; " Pair-(as 
 the French call it) is to equalize, match, or make even, the money of Ex- 
 change from one place with that of another place, when I take up so much 
 money for Exchange in one place to pay the just value thereof in other 
 kind of money in another place, without having respect to the current of 
 Exchange for the same, but only to what the moneys are worth.'' Marius 
 on Bills, 4. Beawes (Lex Merc, by Chitty, vol. 1, p. 562, edit. 1813) 
 says; " By the par of real moneys is to be understood the equality of the 
 intrinsic value of the real species of any country with those of another ; 
 and by that of Exchanges, the proportion that the imaginary moneys of 
 any country bear to those of another." 
 B. or EX. 4 
 
38 BILLS OP EXCHANGE. [CH. 11. 
 
 loon, or the Louis d'or, of the one country, would, in 
 that country, be worth one tenth more or one tenth less 
 than that of the other. So, for example, if the gold 
 coin of each country were exchangeable into silver dol- 
 lars of equal weight, fineness,, and purity in each coun- 
 try, if the gold coin of the one country were worth, in 
 that country, ten of such dollars, the other would be 
 worth nine only of such dollars in the same country. 
 The par of the inferior coin would, therefore, in that 
 country, be only nine dollars, although in the country 
 where it was coined, it might nominally pass for ten 
 dollars. And the same principle will apply to any de- 
 nomination of currency in one country, which does not 
 represent any specific coin (such as a pound sterling) ; 
 for still it is compared by the sapae medium of gold of a 
 certain purity and fineness in that country, and thus its 
 relative value or par is ascertained in another.' Thus, 
 
 1 Molloy (De Jure Marit. B. 2, ch. 10, §8, p. 81) says; "The just and 
 true Exchange for moneys, that is at this day used in England, (by Bills) 
 is par pro pari, according to value for value ; so as the English Exchange 
 being grounded on the weight and fineness of oar own moneys, and the 
 weight and fineness of the moneys of each other country, according to 
 their several standards proportionable in their valuation, which, being 
 truly and justly made, ascertains and reduces the price of Exchange to a 
 sum certain for the Exchange of moneys to any nation or country what- 
 soever ; as, for instance, if one receives £100 in London to pay £100 in 
 Exeter; this by the par. But if a merchant receives £100 in London to 
 pay jGlOO at Paris, there the party is to examine and compare the English 
 weight with the weight of France, the fineness of the English sterling 
 standard with the fineness of the French standard. If that at Paris and that 
 at London differ not in proportion, then the Exchange may run at one price, 
 taking the denomination according to the valuation of the moneys of each 
 country. But if they differ, the price accordingly rises or falls. And the 
 same is easily known, by knowing and examining the real fineness of a 
 French 5s. piece and an English 5s, piece, and the difference, which is to 
 be allowed for the want of fineness or vyeight, which is the Exchange ; 
 and so proportion3,bIy for any sums of moneys of any other country, the 
 which is called par, or giving value for value." 
 
CB. II.] DIFFEEENT KINDS. 39 
 
 for example, according to the mint regulations of Eng- 
 land and France, a pound sterling in English currency 
 is equal to twenty-five francs and twenty centimes of 
 French currency; and this is accordingly said to he the 
 par of Exchange hetween London and Paris.^ And the 
 Exchange hetween the two countries is said to be at 
 par, when hills are negotiated upon this footing ; that is, 
 for example, when a Bill for £100 sterling, drawn in 
 London, is worth 2520 francs in Paris, and conversely, 
 and no more.® Hence, when one pound sterling in 
 London will buy a Bill on Paris for more than twenty- 
 five francs, twenty centimes, the Exchange is said to be 
 in favor of London and against Paris ; and, on, the other 
 hand, when one pound sterling, in London, will not buy 
 a Bill on Paris for twenty-five francs, twenty centimes, 
 the Exchange is said to be against London and in favor 
 of Paris.^ In America a pound sterling in London is 
 generally more valuable than $4.44, the par of Ex- 
 ' change ; and hence it is usually said, that the Exchange 
 
 1 McCulloch's Diet, of Comm. art. Exchange, p. 559, 560 (edit. 1835.) 
 
 2 Ibid. — The Congress of the United States have, at different times, 
 regulated the value of foreign coins, so far as to provide at what rate they 
 shall be deemed a tender. The par of a pound sterling of England is, for 
 all purposes, except the collection of duties, fixed at $4.44 ; and for the 
 collection of duties on goods imported, it was formerly fixed at $4.80. 
 See Act of 1799, ch. 128, § 61 ; Act of 14th July, 1832, ch. 225, f} 16. 
 But now it is by the Act of 27th of July, 1842, ch. 66, fixed at $4.84, in 
 all payments by and to the treasury of the United States, and in appraising 
 merchandize imported, where the value is by the invoice in pounds ster- 
 ling. In Cunningham on Bills, p. 418 (6th edit.) will be seen the table of 
 the assays, weights, and most of the foreign silver and gold coins, made by 
 Sir Isaac Newton at the mint of England, by order of the Privy Council, 
 in 1717, with notes and explanations, and calculations of the real or in- 
 trinsic Par of Exchange, as it stood in 1719, and 1740. See also McCul- 
 loch's Dictionary of Commerce, art. Exchange, p. 565, 566 (edit. 1835.) 
 
 3 Ibid. 
 
40 BILLS OF EXCHANGE. [CH. II. 
 
 is in favor of London ; and it varies considerably at dif- 
 ferent times. 
 
 § 31. By the rate or course of Exchange between 
 two countries, is meant, the actual price at which a 
 Bill, drawn in one country upon another country, can 
 be bought or obtained in the former country at any 
 * given time. This rate or course of Exchange is affected 
 or made to differ from par by two classes of circum- 
 stances ; first, by any discrepancy between the actual 
 weight or fineness of the coins, or of the bullion, for 
 which the substitutes, used in their place, will ex- 
 change, and their weight or fineness, as fixed by the 
 mint regulations ; and, secondly, by any sudden in- 
 crease or diminution of the Bills, drawn in one country 
 upon another.' The former necessarily arises from the 
 difference of the intrinsic value of the coins or currency 
 of different countries. The latter is materially affected 
 by the course of trade between the two countries, and 
 the varying demand for remittances to the one from 
 the other at different periods. In many cases both 
 circumstances have a combined operation. In other 
 cases, the first is unfelt, but the second becomes a most 
 material and important ingredient in commercial opera- 
 tions. Thus, for example, in Ameri^ga, although the 
 coin of the national mint is exactly of tlie same intrinsic 
 value throughout the Union, yet the rate of Exchange 
 is constantly fluctuating. A Bill drawn in Boston, for 
 $1000, upon New Orleans, will sometimes be worth in 
 Boston one per cent, more than par, and at another 
 time one per cent, less than par, simply in consequence 
 
 1 McCulloch's Dictionary of Commerce, art. Exchange, p. 559 ; Mer- 
 lin, R6pertoire, art. Lettre et Billet, de Change, ^ 1, p. 155 to 157 (edit. 
 1837). 
 
CH. II.] DIFFERENT KINDS. 41 
 
 of the course of trade, and there being a scarcity or 
 abundance of such bills in the market, that is, of funds 
 at New Orleans, which are available by the owners 
 thereof at Boston, for such purposes.' On the other 
 hand, the currency of different States, known under the 
 same denomination, may be of different intrinsic values, 
 and yet the real par be the same. Thus, in Massachu- 
 setts, a silver dollar, at its par value, is equal to six 
 shillings of Massachusetts currency, each of which shil- 
 lings is equal to sixteen cents and two thirds ; and in 
 New York, a silver dollar, at its par value, is equal to 
 eight shillings of New York currency, each shilling 
 being of the value of twelve and a half cents only. 
 The par value of six shillings in Massachusetts cur- 
 rency is then equal to eight shillings in ^sfew York cur- 
 rency ; and yet the par value of a dollar is the same in 
 each State. But. the rate of Exchange between Boston 
 and New York might be a quarter or half per cent, 
 different from the par, by the scarcity or abundance of 
 funds in either place at a particular period, occasioned- 
 by the fluctuations of business, and the necessities of 
 trade.® 
 
 1 MoCulloch's Dictionary of Commerce, art. Exchange, p. 559 ; Mer- 
 lin, R-6pertoire, art. Lettre et Billet de Change, § 1, p. 155 to 157 (edit. 
 1827.) 
 
 2 McCulloch, in his Dictionary of Commerce, art. Exchange, has dis- 
 cussed this subject at some length. As the subject is not always familiar 
 to students, or even to practical lawyers, the following extract from his 
 work is subjoined. " It is but seldom, that the coins of any country cor- 
 respond exactly with their mint standard ; and when they diverge from it, 
 an allowance, corresponding to the diflference between the atual value of 
 the coins and their mint value, must be made in determining the real par. 
 Thus, if while the coins of Great Britain correspond with the mint stand- • 
 ard in weight and purity, those of France were either 10 per cent, worse 
 or debased below the standard of her mint, the Exchange, it is obvious 
 would be at real par when it was nominally 10 per cent, against Paris or 
 
42 BILLS OF EXCHANGE. [CH. II. 
 
 when a Bill payable in London for jClOO was worth at Paris 2,772 fr. in- 
 stead of 2,520 fr. In estimating the real course of Exchange between 
 any two or more places, it is always necessary to attend carefully to this 
 circumstance ; that is, to examine, whether their currencies be all of the 
 standard weight and purity ; and if not, how much they differ from it. 
 When the coins circulating in a country are either so worn or rubbed, as 
 to have sunk considerably below their mint standard, or when paper money 
 is depreciated from excess or want of credit, the Exchange is at real par 
 only, when it is against such country to the extent to which its coins are 
 worn or its paper depreciated. When this circumstance is taken into 
 account, it will be found, that the Exchange during the latter years of the 
 war, though apparently very much against this country, was really in 
 our favor. The depression was nominal only; being occasioned by the 
 great depreciation of the paper currency, in which Bills were paid. Vari- 
 ations in the actual course of Exchange, or in the price of Bills, arising 
 from circun^stances affecting the currency of either of two countries trad- 
 ing together, are nominal only ; such as are real grow out of circum- 
 stances affecting their trade. When two countries trade together, and 
 each buys of the other commodities of precisely the same value, their 
 debts and credits will be equal, and, of course, the real Exchange will be 
 at par. The Bills drawn by the one will be exactly equivalent to those 
 drawn by the other, and their respective claims will be adjusted without 
 requiring the transfer of bullion or any other valuable produce. But it 
 very rarely happens that the debts reciprocally due by any two countries 
 are equal. There is almost always a balance owing on the one side or 
 the other ; and this balance must affect the Exchange. If the debts due 
 by London to Piris exceeded those due by Paris .to London, the competi- 
 tion in the London market for Bills on Paris would, because of the com- 
 paratively great amount of payments our merchants had to make in Paris, 
 be greater than the competition in Paris for Bills on Lordon ; and, con- 
 sequently, the real Exchange would be in favor of Paris and against Lon- 
 don. The cost of conveying bullion from one country to another forms 
 the limit within which the rise and fall of the real Exchange between 
 them must be confined. If 1 per cent, sufficed to cover the* expense and 
 risk attending the transmission of money from London to Paris, it would 
 be indifferent to a London merchant, whether he paid 1 per cent, premium 
 for a Bill of Exchange on Paris, or remitted money direct to that city. If 
 the premium were less than 1 per cent, it would clearly be his interest to 
 make his payments by Bills in preference to remittances ; and that it 
 could not exceed 1 per cent, is obvious ; for every one would prefer remit- 
 ting money to buying a Bill at a greater premium than sufficed to cover 
 the expense of a money remittance. If, owing to the breaking out of 
 hostilities between the two countries, or to any other cause, the cost of 
 remitting money from London to Paris were increased, the fluctuations of 
 the real Exchange between them might also be increased. For the lipits 
 within which such fluctuations may range, correspond in all cases with 
 
CH. 11.] 
 
 DIFFERENT KINDS. 43 
 
 the cost of making remittances in cash. Fluctuations in the nominal Ex- 
 change, that is, in the value of the currencies of countries trading together, 
 have no effect on foreign trade. When the currency is depreciated, the 
 premium, which the exporter of commodities derives from the sale of the 
 Bill drawn on his correspondent abroad, is only equivalent to the increase 
 in the price of the goods exported, occasioned by this depreciation. But 
 when the premium on a foreign Bill is a consequence, not of a fall in the 
 value of money, but of a deficiency in the supply of Bills, there is no rise 
 of prices ; and in these circumstances the unfavorable exchange operates 
 as a stimulus to exportation. As soon as the real exchange diverges from 
 par, the mere inspection of a price-current is no longer sufficient to regu- 
 late the operations of the merchant. If it be unfavorable, the premium, 
 which the exporter will receive on the sale of his Bill, must be included 
 in the estimate of the profit he is likely to derive from the transaction. 
 The greater that premium the less will be the difierence of prices neces- 
 sary to induce him to export. And hence, an unfavorable real Exchange 
 has an effect exactly the same with what would be produced by granting 
 a bounty on exportation equal to the premium on foreign Bills. But, for 
 the same reason that an unfavorable real Exchange increases exportation, 
 it proportionally diminishes importation. When the exchange is really 
 unfavorable, the price of commodities imported from abroad must be so 
 much lower than their price at home, as not merely to afford, exclusive 
 of expenses, the ordinary profit of stock on their sale, but also to compen- 
 sate for the premium, which the importer must pay for a foreign Bill, 
 if he remit one to his correspondent, or for the discount, added to the 
 invoice price, if his correspondent draw upon him. A less quantity of 
 foreign goods will, therefore, suit our market, when the real Exchange is 
 unfavorable ; and fewer payments having to be made abroad, the competi- 
 tion for foreign Bills will be diminished, and the real Exchange rendered 
 proportionally favorable. In the same way, it is easy to see, that a favor- 
 able real Exchange must operate as a duty on exportation, and as a bounty 
 on importation. It is thus, that fluctuations in the real Exchange have a 
 necessary tendency to correct themselves. They can never, for any con- 
 siderable period, exceed the expense of transmitting bullion from the 
 debtor to the creditor country. But the Exchange cannot continue either 
 permanently favorable or unfavorable to this extent. When favorable, it 
 corrects itself by restricting exportation and facilitating importation; and 
 when unfavorable, it produces the same effect by giving an unusual sti- 
 mulus to exportation, and by throwing obstacles in the way of importation. 
 The true par forms the centre of these oscillations ; and although the 
 thousand circumstances which are daily and hourly affecting the state of- 
 debt and credit, prevent the ordinary course of Exchange from being 
 almost ever precisely at par, its fluctuations, whether on the one side or 
 the other, are confined within certain limits, and have a constant tendency 
 to disappear. — Merlin says : "Le change est une fixation de la valeur 
 actuelle et momentan^e des monnaies des divers pays ; il faut done qu'un 
 
44 BILLS OP EXCHANGE. [CH. n. 
 
 negocianl 6tudie les vaiiations de cette valeur, afin de ne payer ni d'etre 
 pay6 k son d^savantage ; il faut aussi qu'il connaisse le pair du change 
 de chaque place, c'est-^-dire, le prix raoyen qui ne cause ni profit ni perte ; 
 c'est par la science exacte des variations du change, qu'il dispose ses opfe- 
 rations de fajon k tourner le cours actuel k son avantage. On entend par 
 cours actuel, le prix auquel sont les Lettres de change pour faire des 
 remises d'une place k une autre. Le pair du change est fond6 sur une 
 proportion arithm6tique du titre, du poids et de la valeur numeraire des 
 esp^ces rfeelles d'or et d'argent revues et donnfees en paiement ; on en a 
 partout des tables exactes, qu'on peut consulter au.besoin. Mais le cours 
 du change s'61oigne sans cesse de ce pair rfeel dans toutes les places, sui- 
 vant les cirtfonstances ou la situation momentan^e de leur Commerce re- 
 spectif, et se sont oes circonstances qui 6tablissent le cours actuel. Re- 
 montons au principe. L'argent, comme m6tal, a une valeur, ainsi que 
 toutes les autres marchandises ; l'argent, comme monnaie, a une valeur 
 que le prince peut fixer dans quelques rapports, et qu'il ne saurait fixer 
 dans d'autres." Merlin, R6pert. art. Lettre et Billet de Change, ^ 1, 
 p. 153 (edit. 1827). 
 
OH. III.] REQUISITES OF. 45 
 
 CHAPTER III 
 
 EEQUISITES OF BILLS OF EXCHANGE. 
 
 § 32. -Having thus stated, in a brief manner, the 
 nature, origin, form, and variations in the par or rate 
 of foreign Bills of Exchange, let us now proceed to the 
 consideration of the more immediate objects of our 
 inquiries, namely, what, at the Common Law, are the 
 general qualities which belong to Bills of Exchange, 
 and constitute their essence, as a medium of commerce, 
 and a circulating security ; so that, in fact, although 
 they are not, strictly speaking, money, they perform, 
 for the most part, the functions thereof. And the re- 
 quisites, by our law, may be stated under the following 
 heads. (1.) The form. (2.) The date. (3.) The place 
 where made. (4.) The sum of money to be paid. (5.) 
 The mode of payment. (6.) The place of payment. 
 (7.) The time of payment. (8.) The names and de- 
 scription of the parties to the instrument, whether as 
 Drawer, or Payee, or Drawee. (9.) The negotiability 
 of the instrument. (10.) The statement of the value 
 received, (11.) The statement of advice, and other 
 miscellaneous suggestions as to the form; and (12.) 
 The capacity of the parties to draw, receive, negotiate, 
 and accept Bills. 
 
 § 33. First, then, as to the form of a Bill of Exchange. 
 It must always be in writing ; ' and it should be signed 
 
 1 Chitty on Bills, ch. 5, § 1, p. 146 to 150, 153 (8th ed. 1833.)— The 
 
46 BILLS OP EXCHANGE. [CH. III. 
 
 by the Drawer, or, by some person duly authorized, in 
 his name and on his behalf. The common form has 
 been already given ; but it is not essential, that the 
 very language of that formulary should be used. On 
 the contrary, the form and the language may be greatly 
 varied, and often is varied in the practice of different 
 nations. It will be sufficient in our law, that the con- 
 tract be in writing, and have all the other substantial 
 ■ requisites to constitute a Bill, however inaccurately and 
 inartificially it may in other respects be expressed ; or, 
 in other words, it will be sufficient, if it be in writing, 
 and contain an order or direction by one person to an- 
 other person, absolutely, to pay money to a third per- 
 son, and cannot be complied with or performed without 
 the payment of money.' Thus, if a person should or- 
 
 French law requires the Bill to be in ■writing, as indeed the very name 
 (Lettre) imports, and also iinder the signature of the Drawer. Pardesstis, 
 Droit Comm, Tom. 3, art. 330; Code de Cpmm. art. 110 ; Jousse, sur 
 L'Ord. 1673, tit. 5, p. 58, 59, 67; Pothier de Change, n. 30 ; Russian 
 Code of 1833 ; 1 Louis. Law Journal for 1843, p. 64. But although a 
 Bill of Exchange must, in all cases, be in writing, it does not, by our law 
 at least, seem indispensable, that the writing should be written in inK. 
 It may be in pencil. Geary v. Physio, 5 Barn. & Cressw. 234 ; Bayley 
 on Bills, ch. 1, § 4, p. io'(5th edit.) ; Chitty on Bills, oh. 5, p. 146 (8th 
 edit. 1833) ; Id. p. 185, 186 ; Brown v. Butcher's & Drover's Bank, 6 
 Hill, N. Y. R. 443. By the law of Scotland, a Bill of Exchange must be 
 subscribed by the party or his authorized agent. The initials of the name 
 of the Drawer, subscribed to the Bill, will not be sufficient to give it the 
 character of a Bill. 1 Bell, Comm. B. 3, ch. 2, p. 390 (5tli edit.) 
 
 1 Bayley on Bills, ch. 1, § 2, p. 4, 5 (5th edit. 1830) ; Chitty on Bills, 
 ch. 5, § I, p. 146 to 150 ; Id. 175 (8th edit.) ; Edis v. Bury, 6 Barn. & 
 Cressw. 433 ; Shuttleworth v. Stephens, 1 Camp. R. 407 ; 1 Bell, 
 Comm. B. 3, ch. 2, § 4, p. 388 (5th edit.) ; 3 Kent, Comm. Lect. 44, p. 
 75, 76 (4th edit.); Miller v. Thomson, 3 Mann. & Grang. 576. — Mr. 
 Chitty (ch. 5, p. 146, 147, 8th edit. 1833) states the general doctrine in 
 this manner. " A Bill of Exchange being an ' open letter of request by 
 one J person to another to pay money,' it follows, that each must be in 
 writing, or whilst legible it may be in pencil, and the whole of the con- 
 
CH. III.] REQUISITES OF. 47 
 
 der another person to deliver a particular sum of money 
 to A. B., or to be accountable or responsible for a par- 
 ticular sum of money to A. B., it would constitute a 
 Bill of Exchange.' [So, an order, drawn on a third 
 person, at the foot of an account for services done, ex- 
 pressing a sum certain as due, by the debtor, in such 
 account, and requesting such third person to pay the 
 account, and charge it to the debtor, is a Bill of Ex- 
 change.®] So, if the language be, that the Drawer 
 requests another to pay to A. B. a particular sum, un- 
 less, indeed, the language necessarily or naturally im- 
 ports a request, as a favor, and not as a matter of right; 
 for, in the latter case, it would not be a good Bill.* 
 
 tract must be so expressed ; and according to the law of Great Britain and 
 of other countries, no part of such contract can be established or supplied 
 by oral testimony. Il; should seem, however, that the whols of the con- 
 tract need not be in the body of the same instrument, and that a contem- 
 poraneous memorandum or indorsement on the Bill, or even on a separate 
 detached paper, may be resorted to, either by the Holder, to supply or 
 explain, or by the Defendant, to show, that the instrument was qualified, 
 or payable on a contingency, or renewable, though evidence of a parol 
 similar stipulation would be clearly inadtnissible ; and where the bill with 
 the indorsements, cannot all be written on the same paper, effect is given 
 to indorsements on an annexed paper, called ' un alonge.' " 
 
 1 Morris v. Lee, 2 Ld. Raym. 1396, 1397; S. C. 1 Str. R. 629; 8 
 Mod. 362. 
 
 3 Hoyt i;. Lynch, 2 Sandford, Superior Ct. N. Y. R. 328. 
 
 3 Raffi;. Webb, 1 Esp. R. 129; Little v. Slackford, 1 Mood. & Malk. 
 371. —Perhaps it will not be found easy to reconcile all the cases on this 
 subject with each other. In Ruffi). Webb, 1 Esp. R. 139, the paper was ; 
 ' Mr. Nelson will much oblige Mr. Webb, by paying I. Ruff or order. 
 Twenty Guineas on his account." Lord Kenyon held it to be a Bill of 
 Exchange, But in Little v. Slackford (1 Mood. & Malk. 171), the words 
 were ; " Mr. Little,' please to let the bearer have jG7, and place it to my 
 account, and you will oblige your humble servant. J. Slackford." Lord 
 Tenterden held it not to be a Bill of Exchange. Now, certainly, language 
 of mere civility cannot, of itself, change the nature of the instrument ; and 
 in order to displace the construction, that the instrument is a Bill, it would 
 seem to be proper to require, that the language necessarily imported to ask 
 
48 BILLS OF EXCHANGE. [CH. III. 
 
 But the language of instruments of this sort is not to 
 be too nicely scanned ; nor is it, because it has the po- 
 liteness now generally introduced into commercial con- 
 tracts and transactions, to be presumed to ask a favor, 
 and not demand a right. Heineccius has well remarked 
 upon the propriety of this consideration. Sequitur man- 
 dcdum solvendi, quod modo imperative exprimUur, modo ver- 
 his precativis. Res eodem redit, quamvis discrimen aliqwd 
 in hisformulis reperisse [est]. JEo enim vivimus sceculo,quo 
 cuUiores gentium mores loqwdiones imp&rcdivas respuiint, 
 adeo, ut et mandata verbis precativis concipi soUavi} The 
 
 a favor, and not to be words of civility. Suppose a man were to draw on 
 his banker, who had money of the Drawer in his hands, an instrument in 
 in these words ; Please to pay A. B., or, Please to pay the bearer, 100 
 dollars, would it not be a good Bill or Draft? In France the Bills are 
 said usually to express, "II vous plaira payer," and it has always been 
 supposed to be a proper formula. Chitty on Bills, p. 150, note (/), (8th 
 edit. 1833.) Diet, du Natoriat. art. Lettre de change, Tom. 4, p. 592, 593, 
 (edit. 1832). Beawes, in his Lex Mercatoria, (PI. 3, edit, by Chitty, 
 1813, Vol. 1, p. 563,) states, among the requisites of a Bill, "that the 
 payment thereof be ordered and commanded." Chitty considers it suffi- 
 cient, if it be requested. Chitty on Bills, p. 150, 151, 175 (8th edit. 1S33). 
 See Marius on Bills, 9. In Pothier's time, the common form seems to 
 
 have been, Vous paierez k Monsieur la somme, &c. Pothier de 
 
 Change, u. 31. Heineccius has well remarked upon this subject, that the 
 courtesy of modern limes often conveys an order in words of request. 
 " Sequitur mandatum solvendi, quod modo imperative exprimitur, (der 
 Herr zahle auf diesen meinen Wechsel-Brief,) modo verbis precativis 
 (der Herr beliebe zu bezahlen auf diesen meinen Wechsel-Brief). Res 
 eodem redit, quamvis discrimen aliquod in his formulis reperisse sibi vide 
 antur Vogtius de Camb. p. 195, et Stryck. in Diss, de Cambial. Litterar. 
 Acceptat. cap. 4, ^ 5. Eo enim vivimus saeculo, quo cuUiores gentium 
 mores loquutiones imperativas respuunt, adeo, ut et mandata verbis preca- 
 tivis concipi soleant." Heinecc. De Jur. Camb. cap. 4, § 7. — Might not 
 the doctrine maintained by the Court in Edis v. Bury, 6 Barn. & Cressw. 
 433, be well applied in cases of this nature, that, if the language of an 
 instrument be ambiguous, it may be treated as a Bill, by the Holder at his 
 election? See also Shuttleworth v. Stephens, 1 Camp. R. 407 ; Chitty 
 on Bills, ch. 5, p. 150 to 152 (8th edit. 1833.) 
 1 Heinecc. De Camb. cap. 4, § 7. See note 2, supra, the wliole pas- 
 
CH. III.] REQUISITES OF. 49 
 
 true rule would seem, therefore, to be, to. hold the mere 
 drawing of a Bill to be the demand of a right, and not 
 the asking of a favor, in all cases, where the language 
 is susceptible of two interpretations ; and to deem it a 
 favor only, when the language used repels, in an une- 
 quivocal manner, the notion, that it is claimed as a 
 right. So, if the word prefixed to the name of the 
 Drawee be at, instead of to, the Holder may, at his 
 election, treat it as a Bill of Exchange,^ or as a promis- 
 sory- note ; for it is susceptible of either interpreta- 
 tion. 
 
 § 34. But, although Bills of Exchange must be in 
 writing, and contain a mandate or order to pay ; yet it 
 does not seem indispensable, that the whole of the con- 
 tract should be written on one and the same paper, or 
 on one and the same side of the same paper. It may 
 be written in part on one paper, and in part on another 
 separate and detached paper, if the memorandum on 
 each be contemporaneous, and both be designed to con- 
 stitute but one entire contract.* Nay, a contemporane- 
 ous indorsement on the same paper may constitute a 
 part of the entire contract, . and qualify, restrain, or 
 enlarge the same.^ But whether, in any particular 
 case, ttie memorandum shall be construed a part of the 
 Bill or not, and what shall be its true effect, is a mat- 
 
 1 Shuttlewoith v. Stephens, 1 Camp. R. 407 ; Allen v. Mawson, 4 
 Camp. R. 115 ; Rex u. Hunter, Russ. & Ryan, Cr. Cas. 511 ; Chitty on 
 Bills, p. 38, 29, 149 to 151 (8th edit. 1833). 
 
 2 Chitty on Bills, p. 146, 147 (8th edit.); Id. p. 160, 161 (8th edit. 
 1833); Bayley on Bills, ch. 1, § 14, p. 35, 36 (5th edit. 1836) ; see Hill 
 V. Halford, 2 Bos. & Pull. 413 ; Exon v. Russell, 4 M. & Selw. 605 ; 
 Williams v. Waring, 10 Barn. & Cressw. 3 ; Leeds v. Lancashire, 
 2 Camp. R. 205. 
 
 3 Ibid. 
 
 B. OF EX. 5 
 
50 BILLS OF EXCHANGE. [CH. III. 
 
 ter which must depend upon all the facts and circum- 
 stances of each particular case.^ 
 
 § 35. Bills of Exchange may also vary as to their 
 form, in respect to the number of parties thereto. In 
 the ordinary form of Bills, there are usually three par- 
 ties, the Drawer^ the Payee, and the Drawee.^ But a 
 Bill is sometimes drawn payable to the order of the 
 Drawer, and then it may embrace two parties only, 
 himself and the Drawee.' But, in such a case, if the 
 Drawer indorses it, the Indorsee becomes in effect the 
 Payee, in lieu of the Drawer. Nay, the Drawer may 
 at once become Drawer, Payee, and Drawee ; as, for 
 example, if he should draw a Bill on himself, payable 
 to his own order, at a particular place, naming no 
 Drawee, and then should indorse it over, the Indorsee 
 might sue him as Acceptor of the Bill, or as maker of a 
 Promissory note, at his election.^ Or, if, in the like 
 
 1 Splitgerber v. Kohn, 1 Statkie, R. 125 ; Stone v, Metcalf, 4 Camp: 
 R. 317 ; Hayward v. Perrin, 10 Pick. R. 228. 
 
 2 Marius on Bills, 2, 3 ; Chitty on Bills, p. 27 to 29 (8th edit. 1833) ; 
 Beawes, Lex Merc, by Chitty, Vol. 1, p. 562 (edit. 1813); Com. Dig. 
 Merchant, F. 4. 
 
 3 Cunningham on Bills, ch. 1, ^ 1, n. 13, p. 13 ; Buller». Crisp, 6 Mod. 
 R. 29, 30; Chitty on Bills, p. 27, 28 (8th edit. 1833); seeHeinecc.de 
 Jur. Camb. cap. 2, ^ 2, 3 ; Marquard, de Jure Merc. Lib. 2, ch. 12, n. 
 57 ; Pothier de Change, n. 10, 19, 20 ; Com. Dig. Merchant, F. 4 ; 
 Wildes V. Savage, 1 Story, Rep. 22 ; 3 Kent. Comm. Lect. 44, p. 74 
 (4th edit.) 
 
 4 Shuttleworth v. Stephens, 1 Camp. R. 407; Allen v, Mawspn, 
 4 Camp. R. 115 ; Harvey v.' Kay, 9 Barn, and Cressw. 364, per Bayley, 
 J. ; Edis V. Bury, 6 Barn. & Cressw. 433 ; Ex Parte Parr, 18 Ves. 69 ; 
 Starkie v. Cheepeman, Garth. R. 609 ; Dehers v. Harriot, 1 Shoveer, R. 
 163 ; Robinson v. Bland, 2 Burr. R. 1077 ; Joselyn v. Laserre, Fortesc. 
 R. 283 ; Roach v. Ostler, 1 Mann. & R. 120 ; Rex v. Hunter, Rnss. & 
 Ryan, Cr. Cas. 511 ; Kaskaskia Bridge Co. v. Shannon, 1 Oilman, Illi- 
 nois, R. 15; Post, ^ 59; Bayley on Bills (5th edit.) ch. 1, ^ 2, p. 8, 9 
 (edit. 1830); see Pardessus, Droit Comm. Tom. 1, ^ 335; Chitty on 
 
CH. m.] REQUISITES OP. 51 
 
 case, no person were named as Drawee, and yet it were 
 accepted by a person as Drawee, at the place stated, 
 he would be answerable as Acceptor; for, it being 
 directed to a particular place, which could only mean 
 to a person who resided there, the party, by accepting 
 it, acknowledged, that he was the person to whom it 
 was directed.^ But a Bill, drawn by the Drawer upon 
 a third person, requesting the latter to pay to his own 
 order a particular sum for value received, would not be 
 entitled to be deemed a Bill of Exchange ; for every 
 Bill of Exchange presupposes a duty of the Drawee to 
 pay the money to some other person than himself.^ 
 We shall hereafter see, that a person, not originally a 
 party to the BUI, may become liable as an Acceptor, 
 supra protest, upon the default of acceptance by the 
 Drawee, and thus the Bill may include the rights and 
 liabilities of four distinct parties.^ 
 
 Bills, p. 38, 29, 149 to 151 (8th edit. 1833) ; Marina on Bills, 3 ; Heinecc. 
 de Jur. Camb. cap. 2, ^ 2, 3. See Miller v. Thomson, 3 Mann. & Grang. 
 576, where Ld. CH. Just. Tindal said : " There is an absence of the cir- 
 cumstance of there being two distinct parties, as drawer and drawee, 
 which is essential to the constitution of a Bill of Exchange." In that 
 case the instrument was in the form of a Bill of Exchange, drawn upon a 
 Joint Stock Banking Company in London, by the manager of one of its 
 Branch Banks, at Dorking, and "for the Directors," payable six months 
 after date, without acceptance, to the order of J. U. Francis (who was 
 one of the Directors) for jGlOO. The Plaintiff sued as indorsee of the 
 instrument, and declared upon it as a promissory note. An objection was 
 taken, that the instrumeut was a Bill of Exchange, and not a promissory 
 note ; but the Court overruled the objection. Why might it not also have 
 been declared on as a Bill of Exchange, since it was payable *to the order 
 of another person, and was indorsed by him? Why was not the indorser 
 a new drawer of the Bill ? 
 
 1 Gray v. Milner, 8 Taunt. R. 739. But see Davis v. Clarke, 6 Adolph. 
 fcEllis, N. S. 16 ; S. C. 2 Carrington & Kirwan, 177. 
 
 8 Regina v. Battlett, 2 Mood. & Rob. 362. 
 
 3 Chitty on Bills, p. 30 ; Id. 374 (8th edit. 1833.) 
 
52 BILLS OF EXCHANGE. [CH. IlL 
 
 § 36. In the French Law, as in ours, ordinarily, there 
 are three parties to a Bill, the Drawer, the Payee, and 
 the Drawee ; ^ hut the Bill will be good, if it be drawn 
 payable to the order of the Drawer ; but then it will 
 not acquire, in the French Law, the veritable character 
 of a Bill, in such a case, until it is indorsed and passed 
 to some other person, who becomes the Holder thereof.® 
 But, on the other hand, the Drawer cannot, as he may 
 under our law, be at once the Drawer and the Drawee ; 
 for, in such a case, it will not constitute a Bill of Ex- 
 change, in the just sense of the term, although it may 
 be obligatory between the parties as a simple contract, 
 or promissory note.^ The Drawee and the Payee may 
 also be one and the same person ; as, if the Drawer 
 draws a Bill on the Drawee, in this form; Pay to 
 yourself, such a sum, value received of such a one.* 
 
 § 37. Secondly, in respect to the date of a Bill of 
 Exchange. In general, it may be stated, that there 
 should be a date affixed to every Bill of Exchange. 
 But it is not in all cases indispensable ; ® although in 
 Foreign Bills, probably, the date is rarely if ev^r omit- 
 ted. In all cases of Bills, drawn payable at so many 
 days after date, it would seem to be almost indispen- 
 sable, that the date should appear upon the face of the 
 
 1 Pothier de Change, n. 17, 18, 30. 
 
 2 Locr6, Esprit du Code de Coram. Liv. 1, tit. 8, art. 110, Tom. 1, 
 p. 342 (edit. 1829) ; Code of Commerce, art. 110 ; see Pothier de Change, 
 n. 17 to 20. 
 
 3 Pardessus, Droit Coram. Tom. 1, u. 335, 339; Id. n. 464, 477 to 
 479 ; Pothier de Change, n. 10, 20. 
 
 * Pothier de Change, n. 19. 
 
 5 See Beawes, Lex Merc, by Chitty, Vol. 1, p. 563, pi. 3 (edit. 1813) ; 
 Marius on Bills, p. 14, 19 ; Bayley on Bills, ch. 1, § 7, p. 25 ; Id. ch. 7, 
 § 1, p. 237; Id. ch. 9, p. 422, 427; 1 Bell, Comm. B. 3, ch. 2, p. 388, 
 389 (5th edit. 1830) ; Chitty on Bills, ch. 5, p. 168 (8th edit. 1833.) 
 
CH. in.] EEQUISITES OP. 53 
 
 instrument, for otherwise it cannot be known to the 
 Drawee at what period it is payable; nor can the 
 Holder know at what time it should be presented for 
 payment, nor when it is to be deemed overdue ; all 
 which circumstances may most materially affect his 
 rights.!"^ But when Bills are drawn payable at sight, 
 or on demand, or at so many days after sight, it does 
 not seem indispensable that the date should appear on 
 the face of the instrument, especially if it be an inland 
 Bill; for such a Bill may be valid without a date; and 
 if it should become necessary to be inquired into, it 
 may be ascertained by evidence, and the date will be 
 computed from the day it was actually made or issued.^ 
 It is obvious, however, that every such omission must 
 
 1 1 Bell, Coram. B. 3, ch. 2, p. 389' (5th edit.) ; Chitty on Bills, oh. 5, 
 p. 168 to 170 (8th edit. 1833.) — In De la Courtiei v. Bellamy (2 Shower, 
 R. 42,) the action was on a Foreign Bill of Exchange, payable at double 
 usanc^from the date thereof; and the declaration alleged, that the party 
 drew the Bill on such a day, and that the Bill was accepted by the De- 
 fendant. An exception was taken (probably after ferdict, or judgment 
 upon nil dicit,) that the date of the Bill was not set forth. But the Court 
 held it well enough, and that they would intend, that it was dated, when 
 drawn. The like decision "was made in Hague «. French, in Error (3 Bos. 
 & Pull. 173, 174,) where the original judgment was upon nil dicit ; and 
 upon error brought, it was insisted, that the date of the Bill was not stated 
 in the declaration. But the Conrt said, that they would intend, that the 
 date of the Bill was the day of drawing stated in the declaration. The 
 same point was decided in Giles v. Bourne (6 M. & Selw. R. 73,) upon 
 demurrer to the declaration. Neither of the cases show, what would have 
 been the result, either as to the Drawer or Acceptor, if, at the trial, it had 
 appeared, that there was no date on the Bill. 
 
 2 Chitty on Bills, p. 168, 169, 581 (8th edit. 1833) ; Bayl'ey on BUls, 
 ch. 1, ^ 7, p. 25, (5th edit. 1830) ; Id. ch. 7, \ 1, p. 247 ; Id. ch. 9, 
 p. 379, 383. — In England, by statute. Bills of a certain amount are re- 
 quired to bear date before or at the time of drawing thereof. See Stat. 
 17 Geo. 3, ch. 30 ; 27 Geo. 3, ch. 16 ; 55 Geo. 3, ch. 184, § 18 ; 7 Geo. 
 4, ch. 6, § 9 ; Chitty on Bills, p. 168, 169 (8th edit.) ; Bayley on Bills, 
 ch. 1, § 5, p. 12 to 14 ; Id. ^ 7, p. 25 (5th edit. 1830. ) 
 
 5* 
 
54 BILLS OF EXCHANGE. [CH. 
 
 be attended with some practical inconYeniences ; and, 
 therefore, it seldom occurs, except from pure mistake. 
 Whether the Drawee might not reasonably refuse to 
 pay the Bill, unless dated, is a question involving con- 
 siderations of some nicety, as in many cases it might 
 expose him, in point of remedy and evidence, to serious 
 embarrassments. 
 
 § 38. By the old French Law, the date does not seem 
 to have been positively required to be placed on the 
 Bill ; ' but the modern Code of Commerce expressly re- 
 quires the Bill to be dated.^ And by the date, we are 
 to understand the day, the month, and the year.^ A 
 compliance with this requisite seems indispensable, un- 
 der the modern Code, to give it the character of a Bill 
 of Exchange, although it will not otherwise deprive it of 
 being, as between the original parties, considered as a 
 valid simple contract, or promise.* The Law of Naples 
 is in precise coincidence with that of France.^ 
 
 § 39. Heineccius also holds, that the date is indis- 
 pensable. His language is, and it certainly has no 
 
 1 Pothier says, (speaking of the old Law, before the modem Code of 
 Commerce,) the want of a date, or an error in the date of the Bill, cannot 
 be objected on the part of the Drawer or Acceptor, any more than the 
 omission of the place, where it was drawn. Pothier de Change, n. 26. 
 
 2 Code de Coram, art. 110, 188 ; Pardessus Droit Comm. Tom. 1, art. 
 331, 333, 457, 458 ; Delvineourt, Inst. Droit Comm. tit. 7, ch. 1, p. 75 ; 
 Merlin, R6pert. Lettre et Billet ^e Change, § 1, n. 3, p. 161, 163 (edit. 
 1827); Jousse, sur "L'Ord. 1673, tit. 5, p. 58, 67; Locr6, Esprit de 
 Comm. Liv. 1, tit. 8, ^ 1, p. 332 (edit. 1829); Pothier de Change, 
 n. 36. 
 
 3 Ibid. 
 
 4 Ibid. ; Pardessus, Droit Comm. Tom. 1, art. 331, 333, 464, 477, 478 ; 
 Chitty on Bills, 147, 148 (Sth edit. 1833.) 
 
 5 Codice porlo Regno delle due Sicilie, De Comm. Tit. 7, cap. 1, ^ 
 109;Id. cap. 2, § 187. 
 
CH. III.] REQUISITES OF. 55 
 
 small force in a practical view of the subject ; Sequitur 
 diet, mensis, et anni mentio, quce necessaria omnino videtur ; 
 {!.) quia pkrceqtie kffes cambiales tempv^ exprimi juhent, 
 veluti Prussicce, Brunsiiicenses, et AustriaccB ; (2.) qvia 
 scepe dies solutionis a die scriptarum litterarum camputandus 
 est, ah eoqiie currere incipit, e. gr. vier Wochen ^ dato beliehe 
 der Herr zu lesahlen ; (3.) quia de prcescriptione debiii 
 cambialis judicari non potest sine die d consule. In aliis 
 scripturis omissum diem et consulem regulariter non vitiare 
 contradum notum est} 
 
 § 40. Thirdly, as to the place where a Bill of Ex- 
 change is drawn, and on which it is drawn. In order 
 to ascertain whether a hill be a Foreign Bill, or an In- 
 land Bill, (the rights, duties, and obligations of which 
 are not exactly coincident,) it seems highly proper, that 
 the place where it is drawn, or made and is to be paid, 
 should, in all cases, be stated upon the face of it. But, 
 in general, it does not seem indispensable, that the 
 place, where drawn, should be stated on the face of the 
 Bill, at least not in respect to Inland Bills, and between 
 the original parties,^ whatever may be the difficulties as 
 to Foreign Bills, or as between the original parties and 
 third persons. 
 
 §41. In this respect, our law seems far less pe- 
 remptory and strict, than the modern French Law ; for, 
 by the latter, it seems indispensable to the essence of a 
 Bill of Exchange, that it should contain the place 
 where drawn, and also the place upon which it is 
 drawn ; for the very definition of a Bill, in that law, is, 
 that it is drawn from one place upon another place ; * 
 
 1 Heinecc. De Jur. Camb. cap. 4, ^ 4 (edit. 1769.) 
 
 2 Chitty on Bills, p. 167, 168 (8th edit. 1833.) 
 
 3 Code de Comm. art. 110; Pardessus, Droit Oomm. Tom 2, art. 320, 
 
56 BILLS OP EXCHANGE. [CH. 
 
 m. 
 
 and hence all the writers are agreed, that the place is 
 an indispensable requisite to be stated on the face of 
 the Bin; 
 
 § 42. Fourthly, as to the sum of money to be paid. 
 It seems positively indispensable, that the exact amount 
 to be paid should be inserted ; for in no other way can 
 the Drawee know what he is to pay, or the Payee or 
 Holder know what he is entitled to demand.^ Hence, 
 if the specific sum to be paid be not expressed at all, or 
 it be uncertain in amount, or- be accompanied by other 
 words, that may make it more or less, according to cir- 
 cumstances, the Instrument is void as a Bill of Ex- 
 change.' Thus, a Bill to pay the Payee a given sum, 
 and whatever else may be due to the Payee, is not a 
 
 332 ; Merlin, R6pert. Lettre et Billet de Change, § 2, n. 2, p. 159, 160 
 (edit. 1827.) 
 
 1 Loci6 Esprit du Code de Coram. Liv. 1, art. 110, n. 1, p. 333, 334 ; 
 Delvincourt, Instit. de Droit Coram. 70 ; Merlin, R6pert. Lettre et Billet 
 de Change, § 1, II. 2, p. 160 (edit. 1827); Pothier de Change, n. 30 ; 
 Chittyon Bills, p. 147, 148,167, 168 (8th edit. 1833.) — However, Po- 
 thier says, that neither the 'Drawer nor the Acceptor, could, under the 
 old law, object to the want of a date, or of the place, where the Bill was 
 drawn. Pothier de Change, n. 36 ; Supra, § 38, note (1.) Heineccius 
 treats the mention of the place as indispensable for the very purposes of 
 the instrument. His language is ; " Magis necessaria est mentio loci, 
 adeo, ut ejus omissio cambium vitiet in ducatu Brunsuicensi. Quamvis 
 enim alibi locum impune omilti posse putet Zipfelius, (De Camb. pag. 
 118,) idque etiam jureoommuni recte se habere videatur, (L. 21, de obli- 
 gat. et act,) merito tamen dissentit Strykius (in Dissert, de acceptat. litter, 
 camb. cap. 3, ^ 3.) Quomodo enim scire posset litterarum illarum posses- 
 sor, quo cum protestatione remittendas sint litterae cambiales, si in illis loci 
 nulla fiat mentio? " Heineoc. de Jur. Camb. cap. 4, § 3. 
 
 8 Chitty on Bills, 150, 153, 153, 170, 181 (8th edit. 1833) ; Bayley on 
 Bills, ch. 1, § 4, p. 10, 11 (5th edit. 1830) ; Beawes, Lex Merc, by Chitty, 
 Vol. 1, p. 563, pi. 3 (edit. 1813.) 
 
 3 Ibid. ; Bolton v. Dugdale, 4 Bain, & Adolph. 619 ; Jones w. Simpson, 
 2 Barn. & Cressw. 318 ; Chitty on Bills, p. 152 to 154 (8th edit. 1833) ; 
 Henschel v. Mahler, 3 Denio, R. 428. 
 
CH, in.] REQUISITES OF. 57 
 
 good Bill of Exchange, even for the sum which it ex- 
 pressly specifies.' The sum is sometimes also expressed 
 in figures in the superscription, as well as in the body 
 of the Instrument in letters, for greater caution. But, 
 if the sum in figures, on the superscription, differs from 
 the sum in words in the body of the Instrument, the 
 latter will be deemed the true sum ; ^ and parol evi- 
 dence is inadmissible to establish, that the sum intended 
 was not that stated in words in the body of the Instru- 
 ment, but was that stated in figures in the margin.^ 
 
 § 43. Another indispensable requisite is, that the 
 Bill should be for the payment of money, and of money 
 
 1 See Smith v. Nightingale, 2 Stark. R. 375 ; Leeds v. Lancashire, 2 
 Camp. R. 205 ; Bolton a. Diigdale, 4 Barn. & Adolph. 619. 
 
 2 Chitty on Bills, 183 (8th edit. 1833) ; Beawes, Lex Merc, by Chitty, 
 Vol. 1, p. 513, pi. 193 ; Marius on Bills, 33, 34. 
 
 3 Saunderson v. Piper, 5 Bing. New Cases, 425. — In this ease the 
 Bill in the margin was in figures, $ 245, and in the body of the instru- 
 ment for "Two Hundred Pounds." Query, if it would have made any 
 difierence, if the sum had been £200 in figures in the body of the instru- 
 ment? Some of the Judges gave intimations, which may lead to a doubt 
 upon this point. Heineccius, speaking on this subject, says ; "Denique 
 sollemne etiam est campsoribus, sub finem lemmatis cifris exprimere sum- 
 mam solrendam, addito monetae genere, quo exactori sit satis faciendum; 
 quamvis hoc lequisitum vel ideo essentiale dici nequeat, quod summa in 
 ipsis litteris cambialibus bis exprirai solet." Heinecc. de Jur. Camb. cap. 
 4, § 5. In some countries, the sum is required to be mentioned both in 
 letters and in figures. Heineccius says ; " Hinc porro exprimenda est 
 summa solvenda, quara leges qusedam cambiales, veluti Danica (Lib. 5, 
 cap. 14, art. 8,) et Brunsuicensis, art. 1, bis sciibi jubent, semel litteris, et 
 ilerum cifris. Quamvis vero alibi alterutrum sufBciat ; procul dubio tamen 
 consuetude prior laudatu dignior est, quia quod integris litteris scriptum, 
 difficilius corrumpitur, quam quod solis cifris expressum est. Denique et 
 monetae genus exprimendum, quod nisi factum sit, monetae vulgares intelli- 
 guntur, quas vocant Current. In cambiis propriis usufse sorti adnumeran- 
 tur, ut aequo, ac ipsa sors, processu cambiali peti possint." Heinecc. de 
 Jur. Camb. cap. 4, § 12 ; Id. § 5 (edit. 1769.) In France the sum may be 
 expressed in letters or in figures. Locrfe, Esprit du Codede Comm. Tom. 
 1, Liv. 1, tit. 8, § 1, p. 336, 337 ; Pothier de Change, n. 35. 
 
58 BILLS OP EXCHANGE. [CH. 
 
 III. 
 
 only ; for otherwise the Bill does not acquire the cha- 
 racter of Exchange.^ Thus, a Bill to pay money, and to 
 do some other thing, or a bill to deliver goods, or mer- 
 chandise, or stock, or East India Bonds, or Bank Notes, 
 or any other paper medium, such as foreign bank bills, 
 or drafts, or current bills, is not a Bill of Exchange in 
 contemplation of law.^ So, if a Bill be to pay money, 
 but a part of it is to go as a set-off against certain 
 
 1 Chitty on Bills, p, 152 to 156 (8th edit. 1833) ; 1 Bell, Comm. B. 3, 
 ch. 2, p. 388, 389 (5th edit.) ; Hensohel v. Mahler, 3 Denio, R. 428. 
 
 ' Bayley on Bills, ch. 1, ^ 4, p. 9, 10 to 15 (5th edit. 1830) ; Chitty on 
 Bills, p. 152 to 154 (8th edit. 1833) ; Martin v. Chauntery, 2 Str. R. 1371 ; 
 BuUer, Nisi Prius ; Kyd on Bills, p. 50 (3d edit.) ; Smith v. Boehme, Gilb. 
 Cas. in Law and Eq. 93, S. C. cited 2 Ld. Raym. 1363, 1396, 3 Ld. Raym. 
 67 ; Ex parte Imeson, 2 Rose, Cas. in Bank, 225 ; Gwinn v. Roberts, 3 
 Pike, Arks. R. 73 ; Jones v. Fales, 4 Mass. R. 245 ; 1 Bell, Comm. B. 3, 
 ch. 2, p. 388, 389 (5th edit.) — The American cases are not reconcilable 
 with each other. It is generally agreed, that a Bill payable in merchan- 
 dise, or goods, or stock, or cotton, is not a good Bill of E^xchange ; but 
 some of the Courts have decided, that a Bill or note, payable in Bank Bills 
 of the State where it is drawn, is good as a Bill or note, and negotiable; 
 btit if payable in Bank Bills of another State, it is not a good Bill or note ; 
 others hold, that such a Bill or note is not good, although payable in Bank 
 Bills of the State where drawn ; and others again hold, that there is no 
 difference between the Bank Bills of one State and another, and that in 
 each case the Bill or note is good and negotiable. See' Digberty v. Damell, 
 5 Yerger, R. 451. As to Bills payable in goods or chattels, see Jerome 
 V. Whitney, 7 Johns. R. 321 ; Thomas v. Roosa, 7 Johns. R. 461 ; Pray v. 
 Pickett, 1 Nott& McCord, R. 254 ; Rhodes w. Lindley, 1 Hamm. Ch. R. 
 51 ; Atkinson v. Manks, 1 Cowen, R. 691 ; Lawrence v. Dogherty, 5 
 Yerger, R. 435. As to Bills and notes payable in Bank Bills of the State, 
 the cases of Keith v. Jones, 9 Johns. R. 120 ; Judah v. Harris, 19 Johns. R. 
 144 ; Leiber v. Goodrich, 5 Cowen, R. 136, affirm their validity ; and 
 Lange v. Kohne, 1 McCord, 115; Jones v. Fales, 4 Mass. R. 245 ; Mc- 
 Cormick v. Trotter, 10 Serg. & Rawle, 94 ; Whiteman v. Childress, 6 
 Humphrey's, R. 303, are against it. Mr. Chancellor Kent has not hesi- 
 tated, with his accustomed vigor and frankness, to declare, that the weight 
 of argument is against the American cases, which differ from the English 
 rule, and in favor of the latter. 3 Kent, Comm. Lect. 44, p. 76 (4th edit.) 
 See also Thompson v. Sloane, 23 Wend. R. 71. 
 
CH. III.] REQUISITES OF. 59 
 
 claims of other persons, it "is not a good Bill of Ex- 
 change ; for the instrument constitutes one entire con- 
 tract, and it amounts to an agreement to set off certain 
 claims in lieu of the payment of money.' So, a Bill to 
 pay money and " all fines according to rule " would be 
 invalid as a Bill.® But, if it be payable in money, it is 
 of no consequence in the currency or money of what 
 country it is payable. It may be payable in the cur- 
 rency or money of England, France, Spain, Holland, 
 Italy, America, or any country. It may be payable in 
 coins, such as guineas, ducats, Louis d'ors, doubloons, 
 crowns, or dollars ; or in the known currency of a coun- 
 try, as pounds sterling, livres tournoises, francs, florins, 
 &c. ; for, in all these cases, the sum of money to be 
 paid is fixed by the par of exchange, or the known 
 denomination of the currency with reference to the par.^ 
 § 44. The same rule prevails, in both respects, in the 
 French Law. Pardessus has well observed, that, un- 
 less the precise sum is stated, the obligation of the Bill 
 is not sufficiently determinate.* He adds, that the 
 nature and kind of money should be specified, when the 
 payment is to be made in any other money than that of 
 the place of payment.* He subjoins, that it is immaterial, 
 that the sum is expressed only in figures, or that the 
 
 1 Davies v. Wilkinson, 10 Adolph. & Ellis, 98. See also Bolton v. 
 Dugdale, 4 Barn. & Adolph. 619 ; Ellis v. Ellis, Gow, R. 216; Chitty on 
 Bills, p. 154 to 156 (8th edit. 1833.) 
 
 2 Ayrey v. Featnsides, 4 Mees. & Welsh. 168. 
 ' Chitty on Bills, p. 153 (8th edit. 1833.) 
 
 4 Faidessus, Dioit Comm. Tom. 3, art. 334 ; Code de Commerce, ait. 
 110; Merlin, Rfepert. Lettre et Billet de Change, ^ 3, n. 2, p. 160, 161 
 (edit. 1827) ; Locr6, Esprit de Cod. Comm. Liv. 1, tit. 8, § 1, p. 341 ; 
 Fothier de Change, n. 35. 
 
 s Pardessus, Droit Comm. Tom. 2, art. 334 ; Heinece. de Camh. cap. 
 4, § 5, 13; 
 
60 BILLS OF EXCHANGE. [CH. III. 
 
 sum is expressed in words, without repeating the same 
 (as the common usage is), at the top or bottom of the 
 Bill.' 
 
 § 45. Heineccius has added, that not only the sum 
 of money should he expressed in the Bill, hut also the 
 kind of money, otherwise it will be taken to be the 
 common currency, or denomination of currency of the 
 country, on which it is drawn. Denique et mondce genus 
 exprimendum, quod nid factum sit, monetce vulgwres intelli- 
 guntur, quas vacant Current? 
 
 § 46. As to the mode of payment. The sum to be 
 paid, must not only be in money, and certain in amount, 
 but it must be payable absolutely, and at all events. 
 If it be payable out of a particular fund only, or upon 
 an event which is contingent, or if it be otherwise con- 
 ditional, it is not, in contemplation of law, a Bill of Ex- 
 change, or in its essential character negotiable.^ The 
 reason is (and it is equally applicable to all negotiable 
 instruments), that it would greatly perplex the commer- 
 cial transactions of mankind, and diminish and narrow 
 their credit, circulation, and negotiability, if paper secu- 
 rities of this kind were issued out into the world, en- 
 cumbered with conditions and contingencies, and if the 
 persons, to whom they were offered in negotiation, were 
 
 1 Ibid. ; see also Pothiei de Change, n. 31. 
 
 2 Heinecc. de Jur. Camb. cap. 4, § 12, cited Ante, ^ 42, n. (3.) 
 
 3 Chitty on Bills, ch. 5, p. 152 to 156, 160, 161 (8th edit. 1833) ; Car- 
 los V. Fancourt, 5 Term R. 482 ; Boberts v. Pease, 1 Burr. R. 325; Bay- 
 ley on Bills, ch. 1, § 61 (5th edit. 1830,) p. 16 to 25 ; Colehan v. Cooke, 
 Willes, R. 393, 396, 397 ; Kyd on Bills, p. 55 to 57 (3d edit.) ; Com. 
 Dig. Merchant, F. 5 ; 3 Kent, Comm. Lect. 44, p. 76, 77 (4th edit.) ; 
 Metcalf & Perk. Dig. Bills of Exchange, p. 420, pi. 13 to 22 ; Lanfear v. 
 Blossman, 7 Robinson, Louisiana, R. 148 ; Fitch v. Stamps, 6 Howard, 
 Mississippi, B. 495. 
 
CH. HI.] EEQUISITES OP. 61 
 
 obliged to inquire, when these uncertain events ■would 
 probably be reduced to a certainty, and whether the 
 conditions would be performed or not.^ And hence, 
 the general rule is, that a Bill of Exchange always 
 implies a personal general credit, not limited or appli- 
 cable to particular circumstances and events, which can- 
 not be known to the Holder of the Bill, in the general 
 course of its negotiation ; and if the Bill wants upon 
 the face of it this essential quality or character, the 
 defect is fatal.^ Thus, for example, a Bill, drawn pay- 
 able " out of the growing subsistence " of the Drawer, 
 has been held bad, because the fund is contingent and 
 uncertain, and it must depend upon future events, whe- 
 ther it is to be paid or not ; for, if he should die, or his 
 subsistence should be taken away, it is not to be paid.^ 
 So a Bill, drawn to pay money, " out of rents," or " out 
 of A.'s money, when you shall receive it," or " on the 
 sale of produce, when sold," or " when certain carriages 
 are sold," or " out of a specified fund, when it sh|ill 
 become due," or " on account of freight," or " when 
 freight becomes due," or " when the Drawer shall come 
 of age," or '' at thirty days after the ship A. shall arrive 
 at B.," or " out of the income of the Devonshire moneys," 
 would be bad, because it is uncertain, whether the fund 
 will be sufficient to pay it, or will ever be received.'' 
 
 1 Carlos V. Faneourt, 5 Term Rep. 482 ; Chitty on Bills, ch. 5, p. 153 
 {8th edii. 1833) ; Kyd on Bills, p. 55 to 57 (3d edit.) ; Bayley on Bills, 
 ch. 1, § 6, p. 16 to 25 (5th edit. 1830.) 
 
 2 Dawkes v. Earl of Dolovaine, 2 VVm. Black. 782 ; Carlos v. Faneourt, 
 5 Term R. 482. 
 
 3 Josselyn v. Lacier, 10 Mod. R. 294, 316 ; S. 0. Fortesc. R. 281. 
 
 * Jenny v. Earle, 2 Ld. Raytn. 1361 ; Colehan v. Cooke, Willes, R. 393, 
 398 ; Palmer v. Pratt, 2 Bing. R. 185 ; Goss v. Nelson, 1 Burr. R. 226 ; 
 Haydock v. Lynch, 2 Ld. Raym. 1863; Dankes v. Earl of Dolovaine, 3 
 W. Black. 782 ; Hill v. Halford, 2 Bos. & Pull. 413 ; Banbury v. Lisset, 
 
 B. OF EX. 6 
 
62 BILLS OF EXCHANGE. [CH. III. 
 
 So, a Bill for the payment of money, if it be not paid 
 at a certain day by a third person, will be bad, for the 
 Drawer will be liable only upon a contingency.^ So, a 
 Bill for the payment of money, when the Drawer shall 
 marry, will be bad, because he may never marry .^ [So 
 also a bill, " payable ninety-days after sight, or when 
 realized" will be bad.] ^ The same doctrine will apply to 
 every other case, where the payment of the money is con- 
 ditional, or the amount thereof is uncertain ; as, if it is 
 payable, provided a certain act is done, or is not done ;* 
 or, if the sum stated is payable, or the balance of account 
 between the parties, not exceeding that sum ; ^ or, if no 
 dispute about the sum due arises between the parties ; ^ or, 
 provided A. B. shall not return to England, or his death 
 be only certified ; ' or, provided my circumstances will 
 admit, without detriment to myself or family ; ® or, pro- 
 vided, at the maturity of the Bill, I am living ; " or, if 
 
 2 Str. R. 1211 ; De Forest ». Frary, 6 Cowen, R. 151 ; Reeside v. Knox, 
 2 Whait. R. 223. 
 
 1 See Appleby «. Biddulph, cited 8 Mod. R. 363, and Willes, R. 398 ; 
 Ferris v. Bond, 4 Barn. & Aid. 679 ; Bayley on Bills, ch. 1, § 6, p. 15 
 (5th edit. 1830) ; Chitty on Bills, ch. 5, p. 154 to 162 (8lh edit. 1833.) 
 
 2 See Beardsley v. Baldwin, 7 Mod. 417; S. C. 2 Str. R. 1151, cited 
 also in Willes, R. 399 ; Bayley on Bills, ch. 1, § 6, p. 15 (5th edit. 1836) ; 
 Pearson v. Garret, 4 Mod. B. 242; Colehan v. Cooke, Willes, E. 393, 397, 
 398 ; Kyd on Bills, p. 65 to 57 (3d edit.) 
 
 3 Alexander «. Thomas, 16 Adolph & Ellis, (New Series,) 333. 
 
 4 Smith V. Boehm, 3 Ld. Eaym. 67 ; Appleby v. Biddulph, cited 8 Mod. 
 R. 363 ; Roberts v. Peake, 1 Burr. 383 ; Williamson v. Bennett, 2 Camp. 
 R. 417; Chitty on Bills, ch. 5, p. 154 to 156 (8th edit. 1833). 
 
 5 Leeds v. Lancashire, 2 Camp. E. 205 ; Davies «. Wilkinson, ICf 
 Adolph. & Ellis, 68 ; Bolton v. Dugdale, 4 B. & Adolph. 619. 
 
 6 Hartley v. Wilicinson, 4 Camp. R. 127 ; 4 M. & Selw. E. 25. 
 "^ Morgan v. Jones, 1 Cromp. & Jerv. 162. 
 
 8 Ex parte Tootle, 4 Ves. 372. 
 
 9 Braham v. Bubb, cited Chitty on Bills, ch. 5, p. 155, note, (i) (8lh 
 edit. 1833) ; Id. 156. 
 
CH. III.] REQUISITES OF. 63 
 
 the sum payable is to be used merely by way of set-off 
 against a particular claim ; ' or, if the Bill on its face 
 is to be held as collateral security only for other moneys, 
 not realized from other securities.® 
 
 § 47. But cases of this sort are carefully to be dis- 
 
 ' Clarke v. Perceval, 2 Barn. & Adolph. 660. 
 
 2 Robbins v. May, 3 Perr. & David. 147; S. C. 11 Adolph. & Ellis, 
 213. — But, although a Bill of Exchange, payable on a contingency, is not 
 strictly negotiable ; yet, if the Drawee, upon presentment, accepts it, or 
 promise the Holder, that he will pay the same to him, the latter may 
 maintain an action thereon against the Acceptor or Drawee. Stevens v. 
 Hill, 5 Esp. R. 247 ; De Bernales v. Fuller, cited 14 East, 590, 598 ; Chitty 
 on Bills, oh. 7; p. 350 to 352 (8th edit. 1830.) The language of Mr. Chitty 
 is; "Besides the liability to pay a Bill incurred by the act of accepting it, 
 the Drawee, or any other person, may, by express promise, subject him- 
 self to liability to pay the amount out of the money then in his hands, or 
 which he may afterwards receive, and this, although the Bill itself may be 
 invalid ; as, where it has been drawn on an agent, requesting him to pay 
 a sum of money out of a pattioular fund. Though we have seen, that such 
 instrument will be wholly void as a Bill of Exchange, because the pay- 
 ment of it depends upon a contingency ; yet, if the Drawee promise to 
 pay the amount when he shall receive funds, and the Holder, in conse- 
 quence, retains the Bill, the amount, when received, will be recoverable 
 from the Drawee, as received to his use. So, a draft on the executor of a 
 debtor, which the executor promised to discharge on his receiving assets, 
 is an equitable assigntnent of the debt, available against assignees in bank- 
 ruptcy. But as a chose in action is not assignable, so as to enable the as- 
 signee to sue the original debtor merely by virtue of such assignment, it 
 follows, that, unless the third person, who has funds in hand, expressly 
 promises to pay, and such promise be accepted, the Holder of the Bill can- 
 not sue him ; and if, before the party offer to pay the Bill, it has been re- 
 turned for non-acceptance, the Holder has no remedy against such party. 
 So, where the Drawee proposed to pay, and a dispute arose about a charge 
 for a duplicate protest, and the Holder then declined to receive the amount 
 of the Bill, without such charge, it was held, that afterwards he could not 
 compel the Drawee to pay the Bill. Where A. gives B. an order on his 
 bankers, directing them ' to hold over from his private account .£400, to 
 the disposal of B.,' and the bankers accept the order, such order is never- 
 theless revocable, and may be countermanded before payment made to B. 
 or appropriation to his credit. And a promise to give a credit at a future 
 time is not like a promise to pay." ' 
 
64 BILLS OP EXCHANGE. [CH. III. 
 
 tinguisbed from others, where, although, at first blush, 
 the payment would seem to depend upon a contingency, 
 yet, in reality, it is certainly, and at all events, pay- 
 able ; since the event must happen, although the parti- 
 cular time, when it will arrive, is uncertain. Thus, for 
 example, a Bill of Exchange, payable at the death of 
 the Drawer, or of another person, or at a fixed period 
 afterwards, is a good Bill ; for, although the time, when 
 he will die, is uncertain, yet it is certain, that he will 
 die; and the distance of time is of no consequence.' 
 So, a Bill payable', when a particular person shall come 
 of age, to wit, on such a day, specifying it, would be 
 good ; for it is payable on that day, whether the party 
 lives until that day or not.^ But it would be otherwise, 
 
 1 Colehan v. Cooke, Willes, R. 393; Braham v. Bubb, cited Chitty on 
 Bills, 154, note {d) (5th edit. 1833) ; Id. 156 ; Braham v. Bubb, cited 
 Chitty on Bills, cb. 5, p. 155, note (d) (8th edit. 1833) ; Kyd on Bills, p. 
 56, 57 (3d edit.). 
 
 2 Gross V. Nelson, 1 Burr. R. 226. — There are some cases decided under 
 this head, which appear inconsistent with the principle ; or, at least, which 
 can be brought within it only by a very forced and unnatural construction. 
 Thus, where a promissory note (and the same rule applies to a Bill) was 
 given, by which A. promised to pay a particular sum within ten months 
 after such a ship is paid off (the ship being a public ship), it was held to 
 be a good note ; for the Court said, " The paying off the ship is a thing of 
 a public nature, and this is negotiable as a promissory note." Andrews v. 
 Franklin, 1 Str. R. 24. But the question was not, whether the paying off 
 a public ship was of a public nature ; but whether it was an absolute cer- 
 tainty, that it would ever be paid off, or whether the maker of the note 
 would ever receive the money. Have all claims against government been 
 paid, and all contracts on their part fulfilled? See Bayley on Bills, ch. 1, 
 § 6, p. 24, and note (51) (5th edit. 1830) ; Chitty on Bills, ch. 5, p. 152, 
 154 to 156 (8th edit. 1833.) See also Evans v. Underwood, 1 Wils. R. 
 262, where the Court are reported to have gone one step further. A Bill, 
 payable when a private ship should be paid off, would in all probability, be 
 held void, as founded on a contingency. See Palmer v. Pratt, 2 Bing. R. 
 185. It seems very doubtful, in fact, whether the case of Andrews v. 
 Franklin, 1 Str. R. 74, was ever decided. See Evans v. Underwood, 1 
 
OH. III.] REQUISITES OP. 66 
 
 if the Bill was payable upon the contingency of his 
 arrival at age.' In like manner, a Bill payable in 
 twelve months after notice is good ; for it is payable 
 absolutely, and not upon any contingency ; for a con- 
 tingency means a time, which may or may not arrive ; 
 whereas the debt being admitted, we must suppose, 
 that the notice for payment would positively, at some 
 time arrive.^ So, a Bill, drawn by a freighter on a 
 third person, payable to a person entitled to receive 
 the freight, " on account of freight," is good ; for it is 
 not payable out of a particular fund, but merely shows 
 to what account it is to be applied, or what is the -value, 
 which has been received.^ It would be otherwise, if 
 the Bill, upon its face, should appear to be drawn upon 
 the freighter by the owner of the ship, or his agent, 
 " on account of freight" of a particular ship, and to be, 
 if paid, a discharge thereof; for in such a case it would 
 be manifest, that it is payable out of a particular fund ; 
 and, moreover, the amount due may be open to litiga- 
 tion.* So a Bill, drawn to pay money, "as the Drawer's 
 quarter's half-pay by advance," is good ; because it is 
 not payable out of a particular fund, but is to be paid 
 in advance, and will be payable, whether the half-pay 
 
 Wils. R. 263. At all events it has been greatly doubted, whether either 
 Andrews v. Franklin, or Evans v. Underwood, would now be held law. 
 See Bayley on Bills, ch. 1, § 6, p. 24, and note (48) (5th edit. 1830) ; 
 Selwyn, Nisi Prius, p. 367, note (71) (4th edit.) ; Chitty on Bills, ch. 5, 
 p. 156, 157 (8th edit. 1833.) 
 
 1 Chitty on Bills, ch. 5, p. 154 to 156 (8th edit. 1833.) 
 
 2 Clayton v. Gosling, 5 Barn. & Cressw. 360. 
 
 3 Pierson v. Dunlop, Cowper, R. 571 ; Bayley on Bills, ch. 2, § 6, p. 
 18, 19 (5th edit. 1836) ; Chitty on Bills, ch. 5, p. 159 (8th edit. 1833) ; 
 BuUer v. Crisps, 6 Mod. R. 29, 30. 
 
 4 Banbury v. Llssat, 3 Str. R. 1211 ; Bayley qn Bills, ch. 2, § 6, p. 18, 
 19 (5th edit. 1836) ; Chitty on Bills, oh. 5, p. 159 (8th edit. 1833.) 
 
 6* 
 
66 BILLS OP EXCHANGE. [CH IIL 
 
 ever becomes due or not; and the reference to the 
 half-pay is a mere direction to the Drawee, how to 
 reimburse himself' So, specifying the fund in any 
 other manner, out of which the value was received, 
 for which the Bill is drawn, will not vitiate the Bill ; 
 as, for example, stating "value received out of the 
 premises in Rosemary Lane"; or "being a portion of 
 a value, as under, deposited in security of payment 
 hereof";® or "on account of wine had by me" (the 
 Drawer) ; or " being so much due by me to A. at Lady- 
 day next " ; for in all these cases the Bill is not pay- 
 able out of a particular fund ; but it only specifies the 
 value received, and the occasion of the draft. 
 
 § 48. Sixthly. The place of payment. The place 
 of payment is understood to be the place where the 
 Drawee resides, or where, on the face of the Bill, it is 
 addressed to him, unless some other place is stated 
 upon the face of the Bill. If, therefore, the Bill is 
 meant to be made payable at any other place than that 
 where the Drawee resides, or where the address to him 
 is, it should be so expressed on the face of the Bill ; as, 
 for example, a Bill drawn on Liverpool, if intended to 
 be accepted, payable in London, should be expressly 
 so stated, otherwise it will be payable in Liverpool. 
 But, in general, unless otherwise required by some sta- 
 tute, the place of payment need not be expressly stated ; 
 but will be implied in the absence of all controlling cir- 
 cumstances, to be by law the place of residence of the 
 
 1 MeLeod v. Snee, 2 Ld. Raym. 1481 ; S. C. 2 Str. R. 762 ; Bayley on 
 Bills, p. 18, 19 (5th edit. 1836) ; Chitty oa Bills, ch. 5, p. 158, 159 (8th 
 edit. 1833.) 
 
 2 Haussoulier v. Hertsinck, 7 Term R. 733. 
 
 3 Marius on Bills, p. 8,6 ; Mitchell v. Baring-, 10 Barn. & Cressw. 4 ; 
 Chitty on Bills, ch. 5, p. 172 (8th edit. 1833.) 
 
CH. III.] REQUISITES OF. 67 
 
 Drawee^ or where his address is on the face of the Bill.^ 
 Circumstances may, however, control this inference. 
 Thus, if a Bill were drawn upon a merchant, who was 
 abroad, addressed to him " at Paris, or at London," the 
 Bill would be deemed payable at the place where he 
 accepted it, whether it happened to be Paris, or London. 
 So a 'Bill, drawn upon a person, who is on his travels 
 abroad, if the address specifies no place, would be pay- 
 able where he accepts the bill, or perhaps payable any- 
 where, where he might be found, when it becomes due.^ 
 
 § 49. According to the law of France, the Bill 
 should always indicate the place of payment ; and this 
 may be in various ways' Sometimes it is put into the; 
 body of the Bill, and this is generally done, when the 
 Bill is drawn payable at a specified place, other than 
 the domicil of the Drawee ; s&metimes the town only 
 is specified ; and sometimes the particular place in the 
 town, oi; residence of the Drawee, such, for example," 
 as at his counting-room, or at a banker's. Where no 
 such special designation of place is mentioned in the , 
 Bill, the same rule applies as in our law, that it is, by 
 implication, from the name and address of the Drawee 
 on the Bill, his place of residence.^ 
 
 § 50. Seventhly, as to the time of payment. It is 
 obvious, that some time must be fixed, either ab- 
 solutely, or by necessary relation to some fact, or by 
 implication of law, at which every Bill is to be payable ; 
 
 1 See Bayley on Bills, ch. 1, § 9, p. 29, 30 (5th edit. 1830) ; Chi'tty on 
 Bills, ch. 5, p. 172 (8th edit. 1833.) 
 
 2 See Chitty on Bills, ch. 5, p. 172 (8th edit. 1833.) 
 
 3 Pardessus, Droit Comtn. Tom. 2, art. 337 ; Id. art. 186, art. 213 ; 
 Locr6, Esprit du Code de Comm. Tom. 1, Liv. 1, tit. 8, § 1, p. 343, 344 ; 
 Id. p. 346, 347. 
 
68 BLLS OF EXCHANGE. [CH. III. 
 
 for otherwise the rights, duties, and obligations of the 
 parties respectively would be indeterminate and un- 
 certain.' Usually foreign Bills are drawn, payable at a 
 certain number of days, weeks, or months, after date, or 
 after sight, or at sight. Sometimes they are drawn, 
 payable on demand, or, what is the same thing in legal 
 contemplation, without any specification of the time, 
 when payable ; for then they are payable on demand. 
 Sometimes they are drawn payable at usance, or at a 
 half ;!isance, or at double or treble usance. By usance 
 is meant, the common period, fixed by the usage or cus- 
 tom or habit of dealing between the country where the 
 Bill is drawn, and that where it is payable, for the pay- 
 ment of Bills.® In the early history of modern com- 
 merce, this was the common mode; of expression in 
 drawing Bills in one foreign country upon another, 
 and still continues to be so in many cases ; and, as the 
 usage or custom, as to the time of payment, is different 
 in different countries, it follows, of course, that the 
 same phrase imports different p'eriods of time, according 
 to the country on which the Bill is drawn.^ Bills may 
 
 1 See, as to promissory notes, Moflfat w. Edwards, 1 Carr. & Marsh. 16. 
 [The following instrument, in an action by the indorsees against the ac- 
 ceptor, has been held to be a valid Bill of Exchange ; viz. " Leipsic, April 
 18th, 1S39, For fr's 8755,60, pay'ble, &c. on the 31 Dec'ber 1839. On the 
 31st Oct. of this year, pay, &c. to the order of ourselves 8755 francs 60 cts., 
 payable in Paris the 31st Dec. of this year." But it was argued that the 
 time was fixed here. Plenschel v. Mahler, 3 Denio, R. 428.] 
 
 2 Bayley on Bills, ch. 7, § 1, p. 250, 251 (5th edit. 1830) ; Chitty on 
 Bills, .ch. 9, p. 404 (8th edit. 1833); Pothier de Change, n. 15, 16,32; 
 Com. Dig. Merchant. F. 5 ; Savary, Le Parfait N^gociant, Tom. 1, Pt. 3, 
 ch. 4, p. 816, 817. ■ 
 
 3 Bayley on Bills, ch. 7, § 1, p. 250, 251 (5th edit. 1830) ; Chitty on 
 Bills, ch. 5, p. 171 (8th edit. 1833) ; Id. ch. 9, p. 404 ; see Marius on 
 Bills, p. 15, 16 ; 1 Beawes, Lex Merc, by Chitty, p. 609, pi. 259 (edit. 
 1813) ; Kyd on Bills, p. 4, 5 (3d edit.) ; Jousse, sur I'Ord. 1673, art. 5 ; 
 
CH. III.] REQUISITES OF, 69 
 
 also be made payable at any fixed feast, civil or reli- 
 gious, or at any fixed holyday or fair ; ' or, as we have 
 seen, at any other period, which must certainly happen, 
 although the precise time cannot be now bnovra ; as, at 
 the death of the Drawer, or at a certain number of days 
 after his death, or the death of a third person.* 
 
 § 51. The French Law positively requires, that every 
 Bill of Exchange shall express the time when it is to 
 be paid, otherwise it is held not to be valid as a Bill, 
 but only as a simple contract.' But in other respects 
 it does not seem to differ from our law, as to the mode 
 of expressing the time of payment ; for it may be at 
 
 MoUoyde Jur. Marit. Vol. 2, B. 2, ch. 10, § 10, 11. — Mr. Bayley says ; 
 " Instead of an express limitation by years, months, or days, we continually 
 find the time on Bills, drawn or payable at Amsterdam, Botterdam, Ham- 
 burg, Altona, Paris or any place in France, Cadiz, Madrid, Bilboa, Leg- 
 horn, Genoa, or Venice, limited by the usance, that is, the usage between 
 those places and this country ; because, in the infancy of Bills, all Bills 
 between this country and any of those places, respectively, were usually 
 made payable after the same interval. An usance between this kingdom 
 and Amsterdam, Rotterdam, Hamburg, Altona, or Paris or any place in 
 France, is one calendar month from the date of the Bill ; an usance be- 
 tween us and Cadiz, Madrid, or Bilboa, two ; an usance between us and Leg- 
 horn , Genoa, or Venice, three. A double usance is double the accustomed 
 time; an half usance, half. Where it is necessary to divide a month upon 
 a half usance, which is the case where the usance is either one month 
 or three, the division, notwithstanding the difference in the length of 
 months, contains fifteen days." Bayley on Bills, ch. 7, § 1, p. 250, 251 
 (5th Lond. edit. 1830.) Mr. Chitty has given a very full table of the 
 usances between the principal foreign countries and places and England. 
 Chitty on Bills, ch. 9, p. 404, 405 (8th edit. 1833.) See also Molloy, B. 
 2, ch. 10, § 11 ; Savary, Le Parf. N6gociant, Tom. 1, Part 3, Liv. 1, 
 ch. 4, p. 816, 817. 
 
 1 Chitty on BUls, ch. 5, p. 170, 171 (8th edit. 1833.) 
 
 3 Ante, ^ 47. 
 
 3 Code de Comra. art. 110; Pardessus, Droit Comm. Tom. 2, art. 336; 
 Jousse, sur I'Ord. 1673, art. 1, p. 67, 68; Pothier de Change, n. 12 
 to 16, n. 33 ; Delvincourt, Droit Comm. Tom. 1, Liv. 1, tit. 7, p. 76, 77, 
 2d edit. 
 
70 BILLS OF EXCHANGE. [CH. UL 
 
 sight, or at a certain number of days after sight, or 
 after the date of the Bill, or at the expiration of a cer- 
 tain number of weeks or months, or on a certain day of 
 a month, or at a fixed feast, fair, or holyday, civil or re- 
 ligious ; or at one or more usances.^ Heineccius also 
 takes notice of the like doctrine generally prevailing on 
 the subject of the time of payment of Bills. Oamlia 
 pMearum sutit, vel a Vista, vel a Dato, qiiando acceptans 
 solvere juhetur intra certum tempus a datis litteris camhiali- 
 hus; vel denique a Ifso, quando tempore consueto solvere te- 
 netur acceptans.^ Usance, he afterwards remarks, differs 
 in different places in Germany, the usance being at 
 Leipsic, Brandenburg, Frankfort, Dantzic, fourteen 
 days, and, in some other places, fifteen days.^ But, iti 
 whatever mode or way the time of payment is to be 
 ascertained, whether it be payable at or after sight or 
 date, or at a feast, or usance, or otherwise, Heineccius 
 held it of primary importance, that every Bill should 
 clearly express the time of payment. M ipsis Utteris 
 prime omnium exprimendus est dies solutionis* 
 
 § 52. Eighthly. The name and description of the 
 parties to the Bill. These are the Drawer, the Payee, 
 and the Drawee. All these should appear upon the 
 face of the Bill, either expressly, or by necessary in- 
 tendment of law. The subject may be conveniently 
 divided into three heads. (1.) The consideration of the 
 name and description of the Drawer ; (2.) of the 
 Payee; and (3.) of the Drawee, 
 
 1 Pardessus, Droit Coram. Tom. 2, art. 336 ; Id. art. 183 ; Code de 
 Comm. art. 129 to 131 ; Pothier de Change, n. 15, 16, 33; Jousse, sur 
 I'Ord. 1673, art. I, p. 67 to 69. 
 
 2 Heineco. de Camb. cap. 2, § 13 ; Id. cap. 4, § 6. 
 
 3 Ibid. 
 
 * Ibid. cap. 4, § 6. 
 
CH. III.] REQUISITES OP. 71 
 
 § 53. And, in the first place, as to the name and de- 
 scription of the person, by whom the Bill is drawn. It 
 is obvious, that every Bill must contain, upon its face, 
 the name of the party by whom it is drawn ; for, other- 
 wise, it will be impossible for the Drawee to know, 
 whether he ought to accept it or not, or for any Holder, 
 subsequent to the Payee, to know, to whom he is to 
 give notice, or of whom he is entitled to recover, in case 
 of a dishonor of the Bill.' The name of the Drawer is 
 usually written or subscribed at the bottom of the Bill ; 
 but this does not seem to be absolutely indispensable ; 
 for, if the Bill is written by him, and his name is in- 
 serted in the body of the Bill, or is otherwise signed to 
 it, so that it clearly appears that he is the Drawer, that 
 will be sufficient.^ Neither is it indispensable, that the 
 name of the Drawer should be written by himself; for 
 it may be written by his agent, duly authorized, in his 
 name.^ It may be written in ink, or in pencil ; * nay, it 
 may be a printed signature of the party, if found to be 
 
 1 Bayley on Bills, ch. 1,§ 11, p. 31 (5th edit. 1836) ; Chitty on Bills, 
 ch. 5, p. 185, 186 (8th edit. 1832) ; Pardessus, Droit Comm. Tom. 3, art. 
 330. 
 
 2 Bayley on Bills, ch. 1, ^ 11, p. 37, 38 (5th edit. 1836) ; Taylor v. 
 Dobbins, I Str. R. 399 ; Elliott v. Cowper, 1 Str. R. 609 ; S„ C. 2 Ld. 
 Raym. 1376 ; 8 Mod. 307; Chitty on Bills, p. 185, 186 (8th edit. 1833.) 
 Heineccins on this subject says; "Ad subscriptionem quod attinet, a dex- 
 tra solum prsenomen et nomen trassantis, vel tabernae, immo et aliquando 
 fidejussoris poni sojet, additurque nonnumquam epitheton, des Herrn be- 
 reitwilliger, dienstwilliger. Aliquando et ipsum solvendi mandatum re- 
 petitur, si forte trassans litteras sua manu non scripserit." Heinecc. de 
 Jur. Camb. cap. 4, § 17 ; Beawes, Lex Merc, by Chitty, Vol. 1, p. 563 
 (edit. 1813) ; 3 Kent, Comm. Lect. 44, p. 78 (4th edit.) 
 
 3 Ibid. 
 
 4 Ibid. ; Chitty on Bills, ch. 5, p. 146 (8th edit. 1833) ; Brown v. 
 Butchers & Drovers Bank, 6 Hill, N. Y. R. 443. 
 
72 BILLS OF EXCHANGE. [CH. III. 
 
 adopted and used by him.* If drawn by, or in behalf 
 ofj a firm, it should be drawn in the name and with the 
 signature of the firm, and either partner is at liberty to 
 affix the name of the firm thereto.^ If drawn by per- 
 sons, who are not partners, the name of each person 
 should be affixed thereto, otherwise he will not be 
 deemed a Drawer.^ It is usual for the name of the 
 Drawer or Drawers to be affixed after the Bill is filled 
 up ; but this ig an immaterial circumstance,; for if the 
 Bill be signed in blank, and be afterwards filled up by 
 a person, who is authorized to do so, it will be obli- 
 gatory upon the party or parties, as Drawer or 
 Drawers.* 
 
 1 Ibid. ; Schneider v. Norris, 2 Maule & Selw. 286. 
 
 2 Chitty on Bills, p. 67 to 69, 186 (8th edit. 1833) ; Smith v. Jarves, 2 
 Ld. Raym. 1484 ; Pardessus, Droit. Comra."' Tom. 3, art. 330. 
 
 3 Bayley on Bills, ch. 2, ^ 5, p. 50 to 52 (5th edit. 1830.) 
 
 4 Ante, § 25 ; Chitty on Bills, p. 33, 186, 215 (8th edit. J833) ; Ex 
 parte Hunter, 2 Rose, R. 363 ; Collis v. Emmett, 1 H. Black. 313 ; Rus- 
 sell V. Langstaffe, Doug. R. 496, 514 ; Bayley on Bills, ch. 1, ^ 12, p. 32 
 (5th edit. 1836) ; Violett v. Patton, 5 Cranch, 142 ; Putnam v. Sullivan, 4 
 Mass. R. 45 ; Usher v. Daunoey, 4 Camp. R. 97 ; Snaith v. Mingay, 1 
 Maule & Selw. 87 ; Cruchley v. Clarance, 2 Maule & Selw. 90 ; Cruch- 
 ley V. Mann, 5 Taunt. E. 539 ; 1 Bell, Comm. B. 3, ch. 2, p. 390, 391 
 (5th edit.) — On the subject of subscription, Mr. Bell has remarked ; " Bills 
 and notes can be effectually drawn, accepted, or indorsed, only by the sub- 
 scription of the name of the person so drawing, accepting, or indorsing or 
 by the subscription of a procurator, authorized by him. But sometimes illi- 
 terate persons become parties to such instruments ; and it is necessary to 
 observe, how" they may effectually bind themselves. In strict law, no Bill 
 ever ought to have been sanctioned under any other than the full legal 
 subscription. But considerations of hardship, grounded on a prevailing 
 usage with illiterate persons to sign Bills and notes by the initials of their 
 names, and even by marks, and the want of a due discrimination between 
 the admission of such writings as documentary evidence, and the sustain- 
 ing of them as BiUs, have led to great confusion in this matter. The sub- 
 scription of the initials of the parties is not effectual to constitute a Bill ; 
 but if it appear from the instrument, that it was signed before witnesses, 
 an action, or, on bankruptcy, a claim of debt, will be sustained, on evi- 
 
CH. HI.] REQUISITES OP. 73 
 
 ^ 54. In the second place, as to the name and de- 
 scription of the Payee. Every Bill of Exchange ought 
 to specify, to whom the same is payable ; for in no 
 other way can the Drawee, if he accepts it, know to 
 whom he may properly pay it, so as to discharge him- 
 self from all further liability.^ Indeed, it would be 
 void upon a more general ground, applicable to all con- 
 tracts, and that is, the utter uncertainty of the person 
 with whom the contract is made, and to whom it is 
 payable.*^ Heineccius states the same doctrine in strong 
 terms. JSfec prcetermittendum Exadoris prcemmen et no- 
 men; vel ideo qidppe necessarium, quod nemo ex litteris 
 agere potest, cujus in illis nulla fit mentio? It is not, how- 
 ever, by our law, indispensable, that the name of the 
 Payee should be inserted in the Bill at the time, when 
 it is made and delivered to the person for whose benefit 
 it is intended, but a blank may be left for the name ; 
 and although it is not then a perfect Bill, yet the blank 
 may be filled afterwards by any londfide Holder, in his 
 own name as Payee, and- thenceforth it will be deemed 
 
 dence, 1st, Of this being the customary mode of subscribing used by the 
 party ;,and, 2dly, That the initials actually were subscribed by him. Such 
 instruments, however, are properly to be considered as evidence only of 
 simple contracts or obligations, not as Bills. They cannot authorize sum- 
 mary execution, because they require extrinsicproof of their authenticity ; 
 differing in this respect from forged Bills, as showing their defect ex 
 facie. Neither will a Bill, signed by a mark, be sustained as a ground of 
 diligence, though it may be received as an adminicle of documentary proof 
 in an action." 1 Bell, Comm. B. 3, ch. I, p. 389, 390 (5th edit.) 
 
 1 Chitty on Bills, ch. 5, p. 177 (8th edit. 1833) ; Id. p. 159 ; Bay- 
 ley on Bills, ch. 1, § 10, p. 34, (5lh edit. 1830.) 
 
 2 Chitty on Bills, ch. 5, p. 159 (8th edit. 1833); Id. 177; Champion v. 
 Plummer, 4 Bos. & Pull. 252; Brown & Oilman, 13 Mass. E. 158; 
 Douglas V. Wilkeson, 6 Wend. R. 637. 
 
 3 Heinecc. de Camb. cap. 4, ^ 11. 
 
 B. OF EX. 7 
 
74 BILLS OF EXCHANGE. [CH. IH. 
 
 a Bill payable to such Holder, as Payee, ah initio} It 
 should also be stated in every Bill to whom, absolutely, 
 and certainly, and not alternatively, the Bill is to be 
 paid ; for, if it is payable to A., or to B., it is not pro- 
 perly a Bill of Exchange, since it is payable to one, 
 only upon the contingency, that it is not paid to the 
 other ; the promise to pay, therefore, is conditional.^ 
 
 § 55. It is not essential, however, that the name of 
 the party, Avho is the Payee, should be given in express 
 words. It is sufficient, if it can be clearly made out 
 upon the true construction of the instrument by the 
 general intendment of law.' And even a misdescrip- 
 tion or misspelling of the name- of the Payee in the 
 instrument, if it can be ascertained, from the terms of 
 it, who is thie party really intended, will not vitiate it.* 
 Pothier has put a case in illustration of these sugges- 
 tions. "If," says he, "the Drawer should omit the 
 name of the Payee, but should draw the Bill in this 
 form ; ' Pay a thousand livres at sight, value received 
 of A. B.,' it appears to me reasonable to presume, that 
 the Drawer intended that the Bill should be payable to 
 the person from whom the value had been received, as 
 no other person is named, to whom it ought to be 
 
 ' Bayley on Bills, ch. 1, % 10, p. 36, 37 (5th edit. 1830) ; Chitty on 
 Bills, ch. 5, p. 177, 178 (8th edit. 1833) ; Cruchley v. Clarence, 2 M. & 
 Selw. 90 ; Cruchley v. Mann. 5Taunt. R. 529 ; Atwood v. Griffin, 1 Ryan 
 & Mood. 425 ; Rex «. Randall, Russ. & Ryan, Cr. Cases, 195 ; Ante, 
 ^ 53 ; Post, \ 56. 
 
 2 Chitty on Bills, ch. 5, p. 160 (8th edit. 1833) ; Id. p. 177; Blanken- 
 hagen v. Blundell, 2 Barn. & Aid. 417 ; Bayley on Bills, ch. 1, % 10, 
 p. 34, 35 (5th edit. 1830.) 
 
 3 Chitty on Bills, ch. 5, p. 178 (8th edit. 1833) ; Id. p. 159, 160 ; Rex 
 i>. Randall, Russ. & Ryan. Cr. Cas. 195 ; Rex «. Box, 6 Taunt. 325. 
 
 ■» Ibid.; Willis D.Barrett, 2 Stark. R. 29; Bayley on Bills, ch. 11, 
 p. 389 (5th edit. 1830. 
 
CH. III.] EEQUISITES OF. • 75 
 
 paid." ' He adds, however, that he has learned from 
 an experienced merchant, that bankers would make a 
 difficulty as to paying such a Bill.^ Pothier's opinion 
 seems indirectly confirmed by a case, furnishing a 
 strong analogy, where a promissory note was ; " Re- 
 ceived of A. £100, which I promise to pay on de- 
 mand ; " and the Court held, that A. must be deemed 
 to be the Payee by intendment of law, and need not 
 be more specially designated.^ Pardessus, however, 
 expresses a decided opposite opinion to that of Pothier, 
 insisting, that it is indispensable, that the name of the 
 Payee should be expressed, and that it cannot be sup- 
 plied.by a presumption from the value being stated to 
 be received from a particular person ; since it often 
 happens, that the price of a Bill of Exchange is fur- 
 nished by another person than him for whose benefit 
 the Bill is drawn.* The correctness of this latter state- 
 ment may be admitted, without in the slightest degree 
 impairing the reasoning of Pothier; for the natural 
 presumption, in the absence of all circumstances to 
 repel it, would seem to be, that the person who gave 
 the value and had possession of the Bill, intended it for 
 his own benefit, or at all events intended to receive the 
 money from the Drawee ; and was so understood by 
 the Drawer. Indeed, the Drawer could have no reason 
 to suppose, that any third person was interested in, or 
 was to receive the money, unless that fact was posi- 
 tively communicated to him; and, therefore, in giving 
 
 ' Pothier de Change, n. 31. 
 
 2 Ibid. 
 
 3 Green v. Davis, 4 Barn. & Cresw. 235 ; Chadwick v. Allen, 2 Str. 
 R. 706. 
 
 * Pardessus, Droit Comm. Tom. 2, art. 338. 
 
76 BltiLS OP EXCHANGE. [CH. IH. 
 
 the Bill to the person who paid the value, he must be 
 deemed impliedly to authorize him to receive the 
 amount from the Drawee, even although it might ulti- 
 mately be intended to be applied to the benefit of 
 another person. The strong sense of the whole transac- 
 tion would seem to be precisely that maintained by 
 Pathier and the English Courts. 
 
 § 56. Upon grounds somewhat similar, if a Bill be 
 drawn, payable to the order of A., it is deemed to be 
 payable to A. or to his order, by our law ; * although 
 (as we have seen) Heineccius holds, that in such a case 
 it is not payable to A. but only to his indorsee ; and 
 such also is the French law.® And not only need not 
 the name of the Payee be expressly stated, but the 
 Bill itself may, by our law, be made payable to the 
 Bearer, or to A. B. or Bearer, or to the Ship Fortune 
 or Bearer ; and in all these cases, the Bill will be valid, 
 and be deemed payable to the Bearer, whoever he may 
 be ; for, Id certum est, quod cerium reddi potest? And a 
 Bill, made payable to a fictitious person, or his order, 
 and indorsed in the name of such fictitious Payee, in 
 favor of a bond fide Holder, without notice of the fiction, 
 will be deemed payable to the Bearer, and may be 
 declared on as such against all the parties, who knew 
 
 1 Chitty on Bills, ch. 11, p. 582 (8th edit. 1833) ; Bayley on Bills, ch. 
 9, p. 388, 389 (5th edit. 1830) ; Frederick v. Cotton, 2 Shower, R. 8 ; 
 Fisher «. Pomfret, Carth. R. 403; S. C. 12 Mod. R. 125; Smith v. 
 McClure, 5 East, B. 476 ; Anon. Comb. R. 401. 
 
 2 Ante, § 19. — But, when indorsed by the Payee, it becomes a good 
 Bill of Exchange in favor of the Holder, since it is then payable to the 
 order of the Payee. Heinecc. de Carab. cap. 2, ^ 8 ; Locr6, Esprit du 
 Code de Coihm. Tom. 1, Liv. 1, tit. 8, p. 242 ; Pardessus, Droit, Comm. 
 Tom. 3, art. 313. 
 
 3 3 Kent, Comm. Lect. 44, p. 76, 77 (4th edit.) ; Kyd on Bills, p. 36 
 to 40 (3d edit.) ; Post, \ 60. 
 
CH. III.] REQUISITES OF, 77 
 
 the fictitious character of the transaction,' If the Bill 
 
 be drawn, payable to or order, any bond fide Holder 
 
 may fill up the blank with his own name, and he will 
 be deemed to have been such from the origin of the 
 Bill.^ 
 
 § 57. The law of France upon this subject is some- 
 what different. Originally. Bills of Exchange, drawn 
 with a blank, for the name of the Payee, might be 
 filled up (as in our law,) in the name of any lond 
 fide Holder, and thereby the other parties to the Bill 
 would be bound to him, in the same manner as if his 
 name had been originally inserted therein.^ But, this 
 having been found to be a cover for fraud and usury, 
 the practice was afterwards disallowed.* Soon after- 
 wards, BUls, payable to the Bearer, came into use ; but, 
 being found productive of the like ill consequences, 
 they also were declared illegal,^ Their validity seems 
 afterwards to have been reestablished ; ^ but, according 
 to Pardessus, by the present law of France, a BUI, pay- 
 able to the Bearer, is not valid.'' If a Bill of Exchange 
 contains any fiction or falsity in the names, or quality. 
 
 ' Chitty on Bills, ch. 5, p. 178, 179, and note (J) (8th edit. 1833) ; Vere 
 V. Lewis, 3 Term R. 183 ; Menet v. Gibson, 3 Term R. 81 ; Collis v. Em- 
 mett, 1 H. Black. R. 313 ; S. C. 1 H. Black. R. 569 ; Gibson v. Hunter, 
 2 H. Black. R. 187, 288; Bayley on Bills, ch. 1, § 10, p. 31, 32 (5th 
 edit. 1830,) and note (72) ; 3 Kent, Coram. Lect. 44, p. 77, 78 (4th edit.) ; 
 Plets V. Johnson, 3 Hill, R. 112. 
 
 2 Chitty on Bills, ch. 5, p. 177 (8th edit. 1833) ; Bayley on Bills, ch. 
 1, § 11, p. 36 (5th edit, 1830) ; 3 Kent, Coram. Lect. 44, p. 77 (4th edit.) ; 
 Cruohley v. Clarence, 2 M, & Selw. 90; Ante, § 63, 54, 
 
 3 Pothier de Change, n. 223. 
 
 4 Ibid.; Sarary, Parfait, N6gociant, Tom. 1, Pt. 1, Liv, 3, ch. 7, 
 p. 201. 
 
 5 Ibid. ; Dupuy de la Serra, ch. 19, p. 196, 197. 
 
 6 Ibid, 
 
 "> Pardessus, Droit Coram. Tom. 2, art. 338 
 
78 BILLS OP EXCHANGE. [CH. III. 
 
 or domicil, or place, -where drawn, or where payable, it 
 loses its distinctive character as a Bill, and becomes 
 only a simple promise.' 
 
 § 58. In the third place, as to the name and descrip- 
 tion of the Drawee. A Bill of Exchange, being an 
 open letter of request from the Drawer to a third per- 
 son, should regularly be addressed to that person by 
 his Christian name and surname, and also by a designa- 
 tion of his place of residence ; and, if it is addressed to 
 a firm, the name of the firm should be expressed in the 
 address.* This seems indispensable to the rights, and 
 duties, and obligations of all the parties ; for the Payee 
 cannot otherwise know, upon whom he is to call, to 
 accept and pay the Bill; nor can any other person 
 know whether it is addressed to him or not, and 
 whether he would be justified in accepting and paying 
 the Bill on account of the Drawer. But, according to 
 our law, the want of an address to any particular per- 
 son, as Drawee, may, if the Bill be drawn payable at a 
 particular place or house, be well deemed a good Bill 
 of Exchange in favor of an Indorsee ; and, if accepted 
 by another person, at the place or house designated, it 
 will bind him as Acceptor.^ A Bill addressed to A., 
 
 1 Code de Comm. art. 112. 
 
 2 Chitty on Bills, ch. 5, p. 187 (8th edit. 1833) ; Beawes, Lex Merc, 
 by Chitty, Vol. 1, p. 563, pi. 3 (edit. 1813) ; Com. Dig. Merchant, F. 5. — 
 The address of the Bill to the Drawee is (as it is said) usually made, by 
 the Italians and Dutch, on the back of the Bill ; but by the French and 
 English uniformly on the face of the Bill, at the bottom thereof, on the 
 left-hand side. Chitty on Bills', ch. 11, p. 187 (8th edit. 1833) ; Marius 
 on Bills, p. 8, 9, 11; Scaccia de Camb. ^ 1, Quest. 5, p. 110 to 127 
 (edit. 1664) ; Com. Dig. Merchant, F. 5 ; Pardessus, Droit Comm. Tom. 
 2, art. 335 ; Heinecc. de Camb. cap. 4, § 19. 
 
 3 Gray v. Milner,8 Taunt. R. 739; Shuttleworth v. Stephens, 1 Camp. 
 R. 407; Allan v. Mawson, 4' Camp. R. 115; Bayley on Bills, ch. 1, § 2, 
 
CH. III.] REQUISITES OF. 79 
 
 or, in his absence, to B., is valid ; and will, if accepted 
 by either, t(ind him.^ If a Bill is iiltended to be ac- 
 cepted by two persons, it should be addressed to both ; 
 otherwise, although accepted by both, it will bind only 
 the person to whom it is addressed, as Acceptor ; for 
 there cannot be a succession of Acceptors.** If a Bill 
 is drawn upon A., B., & C, it may be accepted by A. 
 & B. only ; and if so, it will bind them as Acceptors ; 
 and it will be no variance to state, in the declaration, 
 that it was drawn on them without referring to C.^ 
 
 p. 8 (5th edit. 1830) ; Td. ch. 9, p. 385. In Gray v. Milner, 8 Taunt. R. 
 739, the Bill was as follows : " May 20, 1813. Two months after date, 
 pay to me, or my order, the sum of thirty pounds two shillings. W. 
 Sustanance. Payable at No. 1, Wilmot Street, opposite the Lamb, 
 Bethnal Green, London." It was accepted by Milner. But there does 
 not seem to have been any proof that he resided at the house. Dallas, 
 Chief Justice, in delivering the opinion of the Court, said : " Tliat the 
 opinion of the Court was, that the instrument upon which this action was 
 brought was clearly a Bill of Exchange, and could be declared upon as 
 such ; that it was not necessary that the name of the party, who after- 
 wards accepted the Bill, should have been inserted, it being directed to a 
 particular place, which could only mean to the person who resided there ; 
 and that the defendant, by accepting it, acknowledged that he was the 
 person to whom it was directed ; and that the plaintiff, therefore, was en- 
 titled to retain his verdict." Qusere, how it Would have been if the Bill 
 had been payable at London, or Liverpool, without any other designa- 
 tion of place, and had been accepted by a person residing there, on account 
 of the Drawer? See Davis v. Clarke, 6 Adolph. & Ellis, N. S. 16. 
 
 1 Chitty on Bills, ch. 5, p. 187 (8th edit. 18c3) ; Anon. 13 Mod. R. 
 447. — Quaere, whether a direction to A. or to B., to pay a Bill in the 
 alternative, would be a good Bill, if both were at the same place!, at the 
 same time? Marius seems to deem it good. Marius on Bills, p. 16. 
 
 2 Chitty on Bills, ch. 5, p. 187 (8lh edit. 1833) ; Bayley on Bills,. ch. 
 6, § 1, p. 177 (5th edit. 1830) ,* Jackson v. Hudson, 2 Camp. R. 447 ; 
 Marius on Bills, p. 16. See Davis v. Clarke, 6 Adolph. & Ellis, N. S. 
 16 ; S. C. 1 Carrington & Kirwan, 177. 
 
 3 Mountstepheo v. Brooks, 1 Barn. & Aid. 224 ; Bayley on Bills, ch. 
 9, p. 384, note (105,) (5th edit. 1830); Evans v. Lewis, cited 1 Saund. 
 R. 291, d. Williams's note; Chitty on Bills, ch. 11, p. '580, 581 (8ih 
 edit. 1833). See Grant v. Naylor, 4 Cranch, 224. 
 
80 BILLS OF EXCHANGE. [CH. III. 
 
 § 59. The French law, in like manner, requires, that 
 the name of the Drawee, to whom the Bill is addressed, 
 should be stated in the Bill.' But there are some 
 diversities between our law and that. Thus, a Bill is 
 sometimes drawn by a person on himself, as Drawee ; 
 and in that case it may, in our law, at the election of 
 the Payee, or other Holder, be treated, from its formal 
 character, as a Bill of Exchange, or, according to its 
 real character, as a promissory note.^ In the French 
 law, such an instrument would be treated as a simple 
 promise, or promissory note, and not as a Bill of Ex- 
 change.3 So, by our law, a principal may draw on his 
 agent, as agent, or even upon his wife, whom he has 
 authorized to receipt the Bill for him, and it will be a 
 good Bill of Exchange ; but, in the French law, such a 
 Bill would be deemed to be drawn upon himself, and 
 be but a simple promise.^ Yet, in France, a Bill, drawn 
 by one firm upon another firm, composed in whole, or 
 in part, of the same persons, would be deemed a valid 
 Bill ; for the firms are treated as distinct artificial per- 
 sons.^ 
 
 § 60. Ninthly. The negotiability of the Instrument. 
 It was, formerly, a matter of doubt, whether, by our 
 law, it was not essentiial to the character of a Bill of 
 
 1 Pothier de Change, n. 35. 
 
 2 Ante, § 35 ; Chitty on Bills, ch. S, p. 28 (8th edit. 1833) ; Id. ch. 5, 
 p. 151, 152 ; Id. p. 187 ; Harvey v. Kay, 9 Barn. & Cresw. 364, per 
 Bayley, J. ; Roach v. Ostler, 1 Mann. & Eyl. R. 120 ; Ex parte Parr, 
 18 Ves. 69 ; Starke v. Cheeseman, Carth. R. 509 ; Dehers v. Harriot, 
 1 Shower, R. 163 ; Robinson v. Bland, 2 Burr. R. 1077 ; Joselyn v. La 
 Serre, Fortese. R. 282 ; Bayley on Bills, ch. 1, § 2, p. 8 (5th edit. 
 1830.) 
 
 3 Fardessus, Droit Comm. Tom. 2. art. 335 
 
 4 Ibid. 5 Ibid. 
 
CH. III.] EEQXJISITES OF. 81 
 
 Exchange, that it should be negotiable, that is to say, 
 that it should be payable either to A. or his order, or 
 to the Bearer ; for, otherwise, it was thought, that it 
 might be deemed to have no greater effect, than being 
 evidence of a contract. It was, also, formerly held, 
 that a Bill, payable to A., or Bearer, was not negotia- 
 ble.' But that has been subsequently overruled, and 
 the contrary doctrine established.* And it is now well 
 settled, that it is not essential to the character of a Bill 
 of Exchange, or a Promissory Note, that it should be 
 negotiable.^ It is essential, however, to the negotia- 
 bility of a Bill, between all persons, except the King 
 or Government,* that it should be payable to order, or 
 to Bearer, or that some other equivalent words should 
 be used, authorizing the Payee to assign or transfer 
 the same to third persons ; such, for example, as pay- 
 able "to A. or his assigns."^ Still, however, although 
 not transferable by indorsement, without such words, 
 so as to give an action to the Indorsee against other 
 
 1 Hodges V. Steward, 1 Salk. 125 ; see Hinton's case, 2 Shower, R. 
 235 ,' Crawley v. Crowlher, 2 Freem. 257. 
 
 2 Grant v. Vaughan, 3 Burr. 1516 ; Chitty on Bills, ch. 5, p. 181 (8th 
 edit. 1833) ; Anon. 1 Salk. 126 ; Hinton's case, 2 Shower, K. 235 ; 
 Crawley v. Crowther, 2 Freem. 257 ; Ante, § 56. 
 
 3 Bayley on Bills, ch. 1, \ 10, p. 33, 34 (5th edit. 1830) ; Chadwick 
 V. Allen, Str. R. 706 ; Smith v. Kendall, 6 Term Rep. 123 ; Rex v. Box, 
 6 Taunt. 325 ; BurcHall v. Slocock, 2 Ld. Raym. 1545 ; Chilly on Bills, 
 ch. 5, p. 181 ; Id. ch. 6, p. 219 (8th edit. 1833) ; Cunningham on Bills, 
 113. 
 
 4 Lambert v. Taylor, 4 Barn. & Cresw. 139 ; United States v. Buford, 
 3 Peters, R. 30; United States u. White, 2 Hill, N. Y. R. 259 ; Post, 
 § 199 ; United States v. Buford, 3 Peters, R. 12, 30. 
 
 B Chitty on Bills, ch. 5, p. 180, ch. 6, p. 219 (8th edit. 1833) ; Hill v. 
 Lewis, 1 Salk. 132 ; Com. Dig. Merchant, F. 5 ; 3 Kent, Comm. Lect. 
 44, p. 77 (4th edit.) ; Douglas v. Wilkeson, 6 Wend. R. 637 ; S. P 
 United States v. White, 2 Hill, N. Y. R. 59 ; Ante, \ 60. 
 
82 BILLS or EXCHANGE. [CH. III. 
 
 parties to the Bill ; yet, the indorsement will give an 
 action against the Payee himself; because, in legal 
 effect, it amounts to the drawing of a Bill in favor of 
 the Indorsee against the Drawee.' Where a Bill, pay- 
 able to order, is indorsed in blank by the Payee, it is 
 transferable, by mere delivery, in the same manner as 
 if it were payable to the Bearer.^ 
 
 § 61. The law of France is more restrictive than ours 
 upon this subject. No instrument, which is not, on its 
 face, negotiable, is entitled to the character and privi- 
 leges of a Bill of Exchange ; and, to make an instru- 
 ment negotiable, it is indispensable, that it should be 
 payable to the Payee or his order, or that some other 
 equivalent words should be used.* A Bill, payable to 
 
 1 Chitty on Bills, ch. 6, p. 218, 219 (8th edit. 1833); Hill v. Lewis, 
 1 Salk. 132 ; Smallwood v; Vernon, 1 Str. R. 478 ; Ballingalls v. Gloster, 
 3 East, R. 482 ; Hodges v. Steward, 1 Salk. 125 ; Bayley on Bills, ch. 5, 
 ^ 1, p. 120, note 1 (5th edit. 1830). 
 
 2 Peacock v. Rhodes, 2 Doug. R. 611. 
 
 3 Pardessus, Droit Comm. Tom. 2, art. 339 ; Loer6, Esprit du Code de 
 Coram. Tom. 1, tit. 8, § 1, art. 110, p. 343 ; Chitty on Bills, ch. 6, p. 218, 
 219 (8th edit.) Mr. Nouguier thinks that he has discovered the precise 
 time when Bills of Exchange, in France, were made payable to order. He 
 says ; '' Estienne Cleirac, lequel, comme on sait, ^crivait en 1569, est le 
 premier auteur qui parle rfe Vordre, comme moyen de transferer la propri6t6 
 d'une lettre de change. Dans son chap. 5, no 4, page 62, il donne un 
 module de lettre contenant I'ordre ; puis, au m^me chapitre, n° 12, page 66, 
 il explique la valeur de cette expression. Plus tard, Savary parire 82, t. 
 2, page 602, pretend que I'usage de cette clause a pris naissance en 1620 ; 
 tandis que Mareschal, dans son ourrage sur les changes et rechanges, pub- 
 lic en 1625, ne dit rien qui confirme cette opinion. Son silence ne la d6- 
 truit pas, car son traitfe, succinct est principalement destin6 k reohercher la 
 nature des diverses esp^ces de changes, et la constatation faite par Cleirac 
 trente-quatre ans apr^s, semble lui donner une certaine force. J'ai m^me 
 retrouvfe dans V Instruction sur les lettres de change, chap, l^r, p. 4, un ren- 
 seignement pr6cieux, qui dfeterminerait I'^poque precise de I'invention de 
 I'ordre. Suivant I'auteur de cette instruction, avant le minist^re du Car- 
 dinal de Richelieu on ne seservait pas du mot ordre; mais I'embarras des 
 
CH. III.] REQUISITES OF. 83 
 
 the Bearer, is not within the reach of the rule ; for (as 
 we have seen) such a Bill is deemed invalid.' It may, 
 however, be payable to the order of the Holder, or of a 
 third person, or of the Drawer himself ; and it will be 
 good, if made payable to A., or " at his disposal " ; but 
 not, if made payable to A., or " in his favor " ; for the 
 latter words are equivocal, and do not necessarily im- 
 port "a right to transfer the property, but rather a man- 
 date to A., to receive the money.* So, if the Bill be 
 made payable to A., " or to the lawful Bearer," these 
 latter words will be held equivalent to order, since no 
 person can be deemed the lawful Bearer, but by this 
 
 procurations qu'il fallait passer, donna lieu a ce terme, pour faciliter le 
 commerce des lettres de change, dont ce ministre faisait un tr^s-grand 
 usage. Or, on salt que le minislfire du cardinal a dut6 de 1624 a 1642, 
 epoque de sa mort. Ce serait done vers cette fepoqueet pendant cet esp^ce 
 de dix-huit ans, que I'ordre, invente en 1620, aurait pris son d6veloppement. 
 Quoiqu'il en soit, le commerce accueillit cette innovation avec une favour 
 marquee : il comprit a merveille combien ses ressources s'augmentaient 
 par la facility de r6gler ses opt'rations imm6diatement, sans frais, et d'as- 
 Eurer un rapide paiement. Aussi le transport des lettres par un simple 
 ordre devint d'un usage presque g6n6ral. Cependant, vers la fin du dix- 
 septi^me sificle, et aprfes I'ordonnanee de 1673, quelques places de com- 
 merce, tenant par tradition k leurs anciennes formalit^s, ne purent se r6- 
 soudre a autoriser les transports par endossement, et Dupuys de la Sena 
 (ch. 13, ri" 12, p. 467, et 468 ; Id. ch. 13, § 12, p. 92, edit. 1789,) cite 
 quelques pays oil il y avait defense d'agir ainsi : ' Dans quelques villes par- 
 ticuli^res, dit-il, comme Venise, Florence, Novi, Bolzan, par des r6glemens 
 qui out force de lois, il est dfifendu de payer les lettres de change en vertu 
 des ordres : mais il faut qu'elles soient payable & droiture k ceux qui les 
 doivent exiger, ou bien ceux i. qui elles sent payables envoient une procu- 
 ration congue en certaine forme precise, sans quoion ne saurait en exiger 
 le paiement, ni fairs un prot^t valable, parcequ'il ne serait pas fait par la 
 faute du tireur ni de I'acceptant.' " Nouguier Des Lettres de Change, 
 Tom. 1, p. 273, 274. 
 
 1 Ante, § 57 ; Pothier de Change, n. 223 ; Pardessus, Droit Comm, 
 Tom. 2, art. 338 ; Chitty on Bills, ch. 6, p, 218, 219 (8th edit.) 
 
 2 Pardessus, Droit Comm. Tom. 2, art. 339. 
 
84 BILLS OF EXCHANGE. [OH. HI. 
 
 order, or indorsemeut of A.^ la our law, such a Bill 
 would be treated as payable to Bearer, whether it 
 were a real, or a fictitious person.^ Indeed, bank notes 
 are usually, in England and America, made payable in 
 this way, and are always deemed payable to the Bearer.'' 
 In Scotland, a Bill of Exchange is not only good, as 
 such, which does not contain any words, making it pay- 
 able to order, or to Bearer, but it is negotiable, and as- 
 signable, by indorsement, without these words.^ 
 
 § 62. But, it seems, that a Bill of Exchange, under 
 seal, would not, by our law, be negotiable, although it 
 should contain the usual words, which make it payable 
 to the Payee, or his order; for it has been supposed 
 that the negotiability is confined to unsealed instru- 
 ments only, and is not, by the general commercial law, 
 extended to those under seal.s Heineccius considers 
 the affixing of a seal as a mere superfluity, and as 
 having no effect whatever upon the validity or transfer- 
 ability of the instrument. He says ; Sigilli plmie nullus 
 est usiis in hisce UUeris, et Mnc si addatur, quod aliquando 
 fieri videmus in camliis propriis, id merito pro superfluo ha- 
 hetur.^ 
 
 § 63. Tenthly, as to the statement, that the Bill is 
 for value received. It was formerly a matter of contro- 
 versy, in our law, whether it was necessary, that a Bill 
 of Exchange should import, on its face, to be for value 
 received.'' It is now, however, fully established, that it 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 339. 
 
 2 Bayley on Bills, ch. 1, § 10, p. 31 (5th edit. 1830) ; Grant v. Vaughan, 
 3 Burr. 1516. 
 
 3 Grant v. Vaughan, 3 Burr. 1516 ; Miller v. Race, I Burr. 452. 
 
 4 1 Bel], Comm. B. 3, ch. 2, § 4, p. 401 (5th edit.) 
 
 5 Clarke v. Benton Manufacturing Company, 15 Wend. R. 250. 
 
 6 Heinecc, De Camb. cap. 4, § 18. 
 
 ■^ Cunningham on Bills, 24,25; Banbury v. Lisset, 2 Str. R. 1211; 
 
CH. III.] REQUISITES OF. 85 
 
 is not necessary.' The words, " value received," are, 
 indeed, susceptible of two interpretations, if they stand 
 on the face of the Bill, without further explanation ; 
 that is, as value received by the Drawer of the Payee, 
 or as value received by the Drawee for the Drawer. 
 The former is the more natural interpretation of the 
 words, as it would seem unnecessary to inform the 
 Drawee of a fact, which he must necessarily already 
 know.^ Moreover, it was formerly thought, that these 
 words established a consideration as hetween the 
 Drawer and Payee, which would enable the latter to 
 recover ovet against him, if the Drawee refused to ac- 
 cept or pay the Bill.' However, this nicety is now 
 disregarded ; and the same recourse may be had against 
 the Drawer, whether the words, value received, be on 
 the Bill, or not ; for the law, in cases of negotiable in- 
 struments of this sort, presumes them to be founded on 
 a valuable consideration.^ Nay, the declaration, in an 
 action thereon, need not state, that any value has been 
 
 Pierce v. Wheally, cited in Canningham on Bills, 25. See 2 Black. 
 Comm. 468. 
 
 1 Bayley on Bills, ch. 1, § 13, p. 40 (5th edit. 1830) ; Chitty on Bills, 
 ch. 5, p. 182, 183 (8th edit. 1833) ; Grant v. Da Costa, 3 M. & Selw. 352 ; 
 White V. Ledwick, 4 Doug. R. 247, cited Bayley on Bills, ch. 1, ^ 13, 
 note (83,) p. 40 (5th edit.) ; Chitty on Bills, ch. 5, p. 182, 183 (8th edit. 
 1833) ; 3 Kent, Comm. Lect. 44, p. 77, 78 (4th edit.) ; Hatch «. Trayes, 
 11 Adolph. & Ellis, 702. 
 
 2 Grant v. Da Costa, 3 M. & Selw. 352 ; Highmore v. Primrose, 5 M. 
 & Selw. 65 ; Clayton v. Gosling, 5 Barn. & Cresw. 361. 
 
 3 2 Black. Comm. 468 ; Banbury v. Lisset, 2 Str. R. 1211, 1212. 
 
 * Whiter. Ledwick, cited Bayley on Bills, ch. 1, § 13, p. 40 (5th edit. 
 1830) ; McLeod v. Snee, 2 Ld. Raym. 1481 ; S. C. 1 Str. R.762 ; Popple- 
 well V. Wilson, 1 Str. R. 264 ; Chitty on Bills, ch. 3, p. 78, 79 (8th edit. 
 1833) ; Id. ch. 5, p. 182, 183 ; Cramlington v. Evans, 1 Show. R. 5 ; Wil- 
 son V. Codman's Ex'or., 3 Cranch, R. 193, 207 ; Phillis v. Pluckwell, 3 
 M. & Selw. 395 ; Hatch v. Trayes, 11 Adolph. & Ellis, 703 ; Jones v. 
 Jones, 6 Mees. & Welsh. 84. 
 
 E. OF EX. 8 
 
86 BILLS OP EXCHANGE. [CH. IH. 
 
 received, although it is stated on the face of the Bill.* 
 In many cases, however, it may still be highly impor- 
 tant, that the Bill should, on its face, contain the words 
 " value received," as proof of a consideration, which may 
 entitle the Payee or Holder to certain remedies, or serve 
 him by way of evidence.^ Still, however, the omission 
 of the words will not always be fatal, even upon com- 
 mon written contracts, if the Court can gather, from 
 the words, that there is a presumption of value between 
 the parties.' It would seem, from Heineccius,^ that the 
 foreign law, is, generally, on this subject, coincident 
 with that of England and America, except in places 
 where peculiar regulations exist on the subject. Such 
 regulations do exist in the laws of Bills of Exchange in 
 Prussia, Denmark, and Brunswick, where the omission 
 to express the value will vitiate the Bill ; but, if the 
 Bill is accepted, notwithstanding the omission, the 
 Drawee is bound to pay it.* 
 
 § 64. The French Law, in respect to the expression 
 of the value, is widely diiSferent from our law. From 
 an early period, it seems to have been the policy of 
 
 1 Grant v. Da Costa, 3 M. & Selw. 351, 352 ; Bayley on Bills, ch.9, 
 p. 390 (5th edit. 1830) ; Coombe v. Ingram, 4 Dowl. & Ryl. 211 ; White 
 V. Ledwick, 4 Doug. R. 247, 250, note (m,) by Frere & Roscoe ; Hatch v. 
 Trayes, 11 Adolph. & Ellis, 702. 
 
 2 See Highmore v. Primrose, 4 M. & Selw. 65 ; White v. Ledwick, 4 
 Dong. R. 247, and note (m,) by Frere & Roscoe ; Priddy v. Henbrey, 1 
 Barn. & Cresw. 679; Bishop v. Young, 2 Bos. & Pull. 78. But see 
 Hatch V. Trayes, 11 Adolph. & Ellis, 702, where it was held, that the 
 omission of the words "value received^" was unimportant as to the ac- 
 ceptor, as the law presumed, that the bill was for value received, and debt 
 would lie by the payee thereof against the acceptor, although the words 
 vfere omitted. 
 
 3 Davies v. Wilkinson, 10 Barn. & Adolph. 98. 
 
 4 Heinecc. de Camb. cap. 4, § 13, 14. 
 
 5 Ibid. 
 
OH. m.] , REQUISITES OF. 87 
 
 that law, to require, not only that the value should he 
 expressed, hut that it should also he stated front whom 
 received, and whether it was in money, or in account, 
 or in merchandise, or in other effects. This was ex- 
 pressly provided by the Ordinance of 1673 ;i and the 
 present Code of Commerce has positively affirmed the 
 same rule.* Pothier treats it as a new regulation, 
 first established by the Ordinance of 1673, for the 
 purpose of preventing frauds by bankrupts, who, hav- 
 ing in their possession Bills of Exchange, which pur- 
 ported to be simply "for value received," and for 
 which they had furnished no other value than their 
 own note, were in the habit of negotiating these Bills, 
 upon the eve of their bankruptcy, to persons, who were 
 inclined to receive them in their name, and thus would 
 bring the entire loss upon the Drawers, who had fur- 
 nished them.^ In short, the policy was aimed at the 
 common vice of our own day, which tends so much to 
 holding out false credits, the making and circulation of 
 accommodation paper, as it is called. On failure to 
 comply with this requisite, and expressing the Bill to 
 be for value received, the instrument becomes a mere 
 mandate to pay the amount to the party, to whom the 
 Bill is given ; and, if the latter fails, the Drawer, upon 
 giving up the note, which has been given to him for 
 the amount, is entitled to receive back the Bill itself. 
 
 i 
 
 In like manner, if it is not expressed, in what the value 
 is received, it is, as against the creditors of the Drawer, 
 
 1 Jousse, sur L'Ord. 1673, art. 1, p. 67 ; Id. p. 70 ; Pothier de Change, 
 n. 33, 34; Id. n. 8 to 11. 
 
 2 Code de Comm. art. 110 ; Pardessus, Droit Comtn. Tom. 3, art. 340. 
 
 3 Pothier de Change, u. 34. 
 
 •* Pothier de Change, n. 34 ; Jousse, sur L'Ord. 1673, art. 1, p. 67, 70 , 
 Pardessus, Droit Comm. Tom. 2, art. 340. 
 
88 BILLS OF EXCHANGE. ' [CH. III. 
 
 to be treated as a mere fiction ; and they may arrest 
 the amount in the hands of the Drawee, as having 
 always belonged to their Debtor, (the Drawer,) notwith- 
 standing the Bill may have been negotiated ; and the 
 Holder cannot otherwise entitle himself to receive pay- 
 ment, than by proving, that the Drawer, either in money, 
 or otherwise, actually received the value.'^ The Drawer 
 himself, however, inasmuch as he has confessed, that 
 the Bill is for value received, although he does not say, 
 in what received, is not at liberty to deny it, unless he 
 justifies it by producing the note of the Payee j and 
 he will, in the absence of such evidence, be held to 
 guaranty the payment thereof to the Holder.^ But, 
 even where the value received is properly expressed in 
 the Bill, according to the French law, Pardessus is of 
 opinion, that it is not conclusive between the parties ; 
 but that it is only primd facie evidence of the fact, and 
 may be rebutted by contrary proofs, and the real con- 
 sideration shown.^ 
 
 § 65. Eleventhly, as to the statement of advice, and 
 other miscellaneous matters, in the form of the instru- 
 ment. The common form of Bills of Exchange, states 
 the account, to which the Bill is to be charged, and 
 Avhether with or without advice. If the amount is to 
 be put to the account of the Drawer, the language 
 usually is, " and put it to my account ; " if the Drawee 
 is indebted to the Drawer, the language is, " and put it 
 
 1 Pothier de Change, n. 34. 
 
 2 Ibid. 
 
 3 Pardessus, Droit Comm. Tom. 2, art. 340. Mr. Professor Mittermaier, 
 in a very learned and able dissertation in the Revue Etrangere et Francaise 
 of Mr. Fcslix, Tom. 8, 1841, p. 112, 113, 114, has censured the limitations 
 of the French Law on this point, and has vindicated the more liberal pro- 
 visions of England, America, and Austria. 
 
CH. m.] • REQUISITES OF. 89 
 
 to your account ; " if it is a Bill drawn on account of a 
 third person, the language is, " and put it to the account 
 of A. B." (the third person) ; ' and sometimes the lan- 
 guage is, " and put it to account as per advice." ® But, 
 although this is the usual language, it is not at all essen- 
 tial to the validity or operation of the Bill, but it is a mere 
 matter of mercantile convenience.^ In respect to the 
 other statement, that of advice, the propriety of insert- 
 ing the vrords, " as per advice," or " without advice," 
 must depend upon the rights of the parties, and the 
 expectation, which the Drawee has a right to entertain, 
 of receiving further directions, independent of the Bill. 
 If the Bill is, " as per advice," then the Drawee is not 
 obliged to accept or pay without such advice ; and, if 
 :he does, it is at his own peril.^ If the Bill is, " with or 
 without advice," or " without advice," then he may, and, 
 indeed, ought to accept and pay without such advice.® 
 But, in neither case, is the validity of the Bill at all de- 
 pendent upon the fact, whether it states the Bill to be 
 payable with advice, or without advice, or whether the 
 words are altogether omitted. And this seems also to 
 be [the general doctrine of the French Law,^ and of 
 other foreign nations.^ Sometimes, in Bills of Exchange 
 
 1 Chitty on Bills, ch. 5, p. 18,4, 185 (8th edit. 1833) ; Marias on Bills, 
 p. 7. See ilso Pardessus, Droit Comoi. Tom. 1, art. 341. 
 
 2 Com. Dig. Merchant, F. ; Marius on Bills, p. 7 ; Heinecc. de Jur. 
 Camb. cap. 2, § 19. 
 
 3 Chitty on Bills, ch. 5, p. 184 (8th edit. 1833.) See also Laing v. Bar- 
 clay, 1 Barn. & Cressw. 398. 
 
 4 Chitty on Bills, ch. 5, p. 185 (8th edit. 1833) ; Id. p. 189. 
 
 5 Ibid. 
 
 6 Pothier de Change, a. 36 ; Pardessus, Droit Comm. Tom. 3, art. 323, 
 n. 341, 357. 
 
 "^ Heitiecc. de Camb. cap. 4, § 16. 
 
90 BILLS OF EXCHANGE. ' [CH. III. 
 
 drawn upon one Drawee, provision is made, that in case 
 of need, the Holder is at liberty to apply to, and require 
 acceptance of, another person as a substituted Drawee.-' 
 This is a more common practice is the commercial nego- 
 tiations of France, than in those of England or America. 
 But there is no doubt, that a Bill so drawn, would be 
 equally valid under the law of each country. The usual 
 
 formulary is, " In case of need, apply to Messrs. 
 
 at — : — " (au hesoin ches Messrs. ^ ).^ Such 
 
 a direction of a Bill, in effect, points out one, or more 
 persons, who in case of a refusal, or failure of the Drawee, 
 are to be applied to, that they may honor and pay the 
 Bill, in the nature of Acceptors for honor, supra protest, 
 of whom we shall presently speak ; and, under such 
 circumstances, the Holder is bound to apply to the 
 party or parties so addressed ; and they may accept 
 and pay (as it should seem, according to the foreign 
 law, without any previous protest) ; and the Drawer 
 will be responsible to the party or parties, so paying the 
 Bill, for the full amount.^ 
 
 § 66. It is common, and the practice has prevailed 
 from a very early period, for the Drawer to draw and 
 deliver to the Payee several parts, commonly called a 
 set, of the same Bill of Exchange, any one part of 
 which set being paid, the others are to be void. This 
 is done in other to avoid delays and inconveniences, 
 which might otherwise arise, from the loss, or mislay- 
 ing, or miscarriage of the Bill, and also to enable the 
 
 ' Pardessus, Droit Comm. Tom. 2, art. 341. 
 3 Chitty on BUls, ch. 5, p. 187, 188 (8lh edit. 1833) ; Id. 262. 
 3 Chitty on Bills, ch. 5, p. 188 (8th edit. 1833) ; Pardessus, Droit 
 Comm. Tom. 2, art. 341, 384, 385. 
 
CH. III.] REQUISITES OF. 91 
 
 Holder to transmit the same, by difTereut conveyances, 
 to the Drawee, so as to ensure the most prompt and 
 speedy presentment for acceptance and payment.^ 
 The general usage in England and America is, for the 
 Drawer to deliver a set of three parts of the Bill to the 
 Payee, or Holder.^ And it seems, that, if any person un- 
 dertakes to draw or deliver a Foreign Bill to another 
 person, he is bound to deliver to him the usual set or 
 number of parts ; ^ and some of the foreign Jurists are 
 said to hold, that the Promisee may, in such a case, de- 
 mand as many parts, as he chooses. Of this, however, 
 there may be a reasonable doubt entertained.^ 
 
 § 67. Where a set, consisting of several parts, is 
 
 1 Chitty on Bills, ch. 5, p. 175, 176 (8th edit. 1833) ; Bayley on Bills, 
 ch. 1, ^ 8, p. 28 (5th edit. 1830) ; Pothier de Change, n. 37; Scaccia de 
 Comm. ^ 3, Gloss. 6, n. 3 ; Heinecc. de Camb. cap. 4, § 10 ; Id. cap. 2, § 
 17, 18 ; Pardessus, Droit Coram. Tom. 2, art. 342. 
 
 2 Ibid. 
 
 3 Chitty on Bills, ch. 5, p. 175 (8th edit. 1833) ; Scaccia de Comm. § 2, 
 Gloss. 6, n. 2 ; Pothier de Change, u. 37, 130. 
 
 * Mr. Chitty states this to be the opinion of Pardessus. I do not find 
 any such opinion stated in his work on Commercial Law, although he there 
 speaks on the subject of sets of Exchange. Pardessus, Droit Comm. 
 Tom. 2, art. 342. See Pothier de Change, n. 37. Upon the subject of 
 sets of Exchange, Heineccius says ; " Porro cambia vel sola, vel plura 
 simul dari posse, jam supra animadvertimus. Posterlus fit commodo pra;- 
 sentantis, ut uno alterove exemplar! deperdito, reliquis adhuc uti possit. 
 Tunc vero observandam est campsoribus; (1.) eas litteras omnes pro 
 unicis haberi ; (2.) easdem per omnia sibi similes esse debere, prasterquam 
 quod secundis et sequentibus insori solet clausula, Wenn Prima noch nicht 
 bezahlet, vel, der Herr bezahle auf diesen meinen Secunda Wechsel-Brief, 
 Prima unbezalt ; (3.) recte et adcurate illas esse numerandas, ne bin® 
 secuudse, vel tettiae, exstent. Qui plures ejus generis tesseras collybisticas 
 habet, primam statim potest prtesentare ad acceptandum, dum reliquae per 
 alia loca gerentur. Acceptantis enim seque, ac trassantis, non interest, si 
 Tel maxime reliquae per cessionem in alienas manus perveniant, quia non 
 nisi ex una soluit, ex reliquis vero turn demum solutio exigi potest, si ilia 
 ex prioribus nondum sit prsestita." Heinecc. de Camb. cap. 2, § 17, 18. 
 
92 BILLS OF EXCHANGE. [CH. III. 
 
 given, each part ought to contain a condition, that it 
 shall be payable only so long, as all the others remain 
 unpaid ; in other respects, all are of the same tenor. 
 This condition should be inserted in each part, and 
 should, in each, mention every other part of the set; 
 for, if a man, with an intention to make a set of three 
 parts, should omit the condition in the first, and make 
 the second with a condition, mentioning the first only, 
 and in the third alone take notice of the other two 
 (which, by the way, is the mode pointed out by Mol- 
 loy,i Malynes,^ and Marius),^ he might, perhaps, in 
 some cases, be obliged to pay twice ; for, it might be 
 questionable, if it would be any defence to an action on 
 the second, that he had paid the third, or to an action 
 on the first, that he had paid either of the others.* But 
 an omission is not, perhaps, material, which upon the 
 face of the condition, must necessarily have arisen from 
 a mistake; as, if, in the enumeration of the several 
 parts, one of the intermediate ones were to be omitted ; 
 for instance, " Pay this my first of Exchange, second 
 axi^ fourth not paid." Where a Bill consists of several 
 parts, each ought to be delivered to the person, in whose 
 favor it is made, (unless one is forwarded to the Drawee 
 for acceptance,) otherwise, there may be difficulties in 
 negotiating the Bill, or in obtaining payment.* 
 
 1 Book 2, ch. 10, ^ 14. 
 
 2 Boole 3, ch. 5, p. 261, 262. 
 
 3 P. 7. 
 
 4 Chitty on Bills, ch. 5, p. 176 (8th edit. 1833.) 
 
 5 Bayley on Bills, ch. 1, § 8, p. 28, 29 (5th edit. 1830) ; Chitty on Bills, 
 ch. 5, p. 176 (8th edit. 1833.) — Heineccius, and Pothier, and Pardessus, 
 (Heinecc. de Camb. cap. 2, § 17, cap, 4, ^ 10 ; Pothier de Change, n. 37 ; 
 Pardessus, Droit Comm. Tom. 2, art. 342,) give, in effect, similar direc- 
 tions and admonitions. The usual form is, " Pay this my first of Exchange, 
 second and third not paid," or " Pay this my second of Exchange, first 
 
CH. III.] REQUISITES OF. 93 
 
 ^68. Other reservations are sometimes made, and 
 other directions given in Bills of Exchange, especially 
 on the Continent of Europe ; such as, that, in _cases of 
 dishonor, the Bill is to he returned without protest, or 
 ■without expense (retour sans proUt, ou sansfrais) to the 
 Drawer ; or, that, if protested, a certain sum only shall 
 be allowed, and no more, for reexchange and expenses.^ 
 But these, in England and America, are of very rare 
 occurrence, and when they are intended by the parties, 
 they are more commonly placed in a separate and dis- 
 tinct instrument, in writing. 
 
 § 69. There are also some other requisites to the 
 validity of Bills of Exchange, which arise from the 
 positive .Ordinances,' Laws, and Regulations of particu- 
 lar countries. But they are so various, and so numer- 
 ous, and depend so much upon local and municipal po- 
 licy, that they scarcely require to be treated of, in a 
 work of so elementary a nature, as the present. Among 
 these, the regulations as to stamps, and stamp duties, 
 are the most general in their character and operation. 
 But even the statement of these, in these pages, would 
 occupy a place wholly disproportionate to their relative 
 importance as illustrative of principles.^ 
 
 and third not paid," &c. &c. Chitty on Bills, cli. 5, p. 170 (8th edit. 1833) ; 
 Bayley on Bills, p. 28, 29 (5th edit. 1830) ; Id. p. 375, 387. We shall 
 hereafter see, how the Acceptor should accept the Bill when there are 
 several parts ; and the rights of the different Holders, when they hold, in 
 distinct rights, the different parts. See also, Chitty on Bills, ch. 5, p. 176, 
 177 (8th edit. 1833) ; Holdsworth v. Hunter, 10 Barn. & Cressw. 449. 
 
 1 Chitty on Bills, ch. 5, p. 188 (8th edit. 1833.) 
 
 2 Mr. Chitty, and Mr. Bayley, have each devoted a chapter to the Eng- 
 lish Laws and decisions in England on this subject. See Chitty on Bills, 
 ch. 4, p. 123 to 144 (8th edit. 1833) ; Bayley on Bills, ch. 3, p. 77 to 110 
 (5th edit. 1830.) In America, there are, at present, no stamp duties. As 
 to guaranties on Bills, whether hegoliable also, see Seabury v. Hunger- 
 ford, 3 Hill, N. Y. R. 80 ; Miller v. Gaston, 3 Hill, N. Y. K. 188 ; Post, 
 § 315. 
 
94 BILLS OP EXCHANGE. [CH. IV, 
 
 CHAPTER IV. 
 
 COMPETENCY AND CAPACITY OP PARTIES TO BILLS. 
 
 § 70. The foregoing chapter contains an enumeration 
 of the most important requisites and considerations, 
 which are applicable to the character and form of the 
 instrument itself. But an inquiry of a more extensive 
 nature, and not less vital, is, as to the legal capacity 
 and competency of the respective parties to a Bill of 
 Exchange, either as a Drawer, or a Payee, or a Holder, or 
 a Drawee ; for, although the instrument, upon its face, 
 may possess all the other legal requisites, to give it 
 entire validity; yet, if any party thereto is incompetent, 
 and incapable by law, to give or to acquire, or to trans- 
 fer, any right or title under the same, or to be bound 
 by any obligations arising therefrom, then, so far as it 
 respects such party, the Bill is to be treated as a mere 
 nullity ; and, if so, then various consequences will, or 
 may follow therefrom, which will presently come under 
 our notice, 
 
 § 71. Let us, then, proceed to the consideration of 
 the capacity and competency of the respective parties 
 to a Bill ; and these parties are, ordinarily, the Drawer, 
 the Payee, or other Holder, and the Drawee. And, let 
 us inquire, in the first place, who are generally compe- 
 tent to draw, to hold, to indorse, or to accept, Bills ; 
 and, in the next place, who are generally incompetent 
 for any of these purposes. As to the first ; who are 
 generally competent to draw, hold, indorse, or accept, a 
 Bill of Exchange ; or, in other words, who in contem- 
 
CH. IV.] COMPETENCY OF PARTIES. 95 
 
 plation of law, have a capacity to do such acts. Ori- 
 ginally (as has been already suggested), the right to 
 draw, hold, indorse, or accept such an instrument, seems 
 to have been confined to merchants, and other persons, 
 engaged in trade generally, or in the traffic in Bills.' 
 But this is now totally disregarded; and all persons 
 having general capacity in other respects, whether en- 
 gaged in trade or not, are capable of doing all, or any 
 of these acts.® The old rule was formerly prevalent on 
 the Continent of Europe, founded, in some measure, 
 upon the peculiar remedies, which existed in such cases, 
 in favor of merchants, and gave credit to the Bills. 
 But, gradually, even there, the custom was disregarded ; 
 and> Heineccius has laid it down, as without doubt, that 
 now any. person may draw a Bill, or deal in Exchange, 
 unless specially prohibited by law. Niillem est duhium, 
 quin camhiare possint, quicumque possimt contrahere, nisi id 
 leges cambiales speciatiin proMbeant? 
 
 § 72. Hence, as being generally competent, all per- 
 sons of age, and of sound mind and understanding (or 
 compotes mentis), Females as well as Males, Alien Friends, 
 Trustees, Agents, Guardians, Executors, and Adminis- 
 trators, and other persons, acting en autre Droit, Part- 
 ners, acting within the scope of the business of the 
 Partnership, and Corporations, acting through the 
 instrumentality of an Agent, for purposes and objects 
 authorized by, and within the scope of, their charters, 
 and a fortiori, if express authority is . given to them. 
 
 i Ante, § 7, note (1,) sub finem; Chitty on Bills, p. 13, 16, 17 (8th 
 edit. 1833) ; Kyd on Bills, ch. 3, p. 28 (3d edit.) 
 
 ^ Ante, § 7, note (1) ; Chitty on Bills, p. 13, 14, 16, 17 (8th edit. 
 1833.) 
 
 ' Heinecc. de Jur. Camb. cap. 5, § 1, 2 ; Id. § 13, 14. 
 
96 BILLS OF EXCHANGE. [CH. IV. 
 
 may become Drawers, or other parties, to Bills of Ex- 
 change.-^ 
 
 § 73. The same doctrine is fully recognized by the 
 French law. Pothier lays it down as incontrovertible, 
 that all sorts of persons, who are of capacity to con- 
 tract, whether they are merchants, or bankers, or not, 
 (unless otherwise prohibited,) may become parties to, 
 and intervene in, the negotiation of Bills of Exchange, 
 and contract the obligations resulting therefrom.*^ But 
 women, whether married or single, are by the French 
 law, disabled from making themselves parties as Draw- 
 ers, or Indorsers, or Acceptors, of Bills of Exchange, 
 unless they are regular merchants or traders ; but all 
 such engagements, on their part, amount but to simple 
 contracts, which import very different obligations as 
 well as remedies, in the French law, from those created 
 by being parties to Bills of Exchange.^ However, this 
 is an immunity in their favor ; and as to all other par- 
 ties, a Bill drawn by a woman, not a merchant, retains 
 all its ordinary characteristics and obligations, as we 
 shall presently more fully see.^ 
 
 ■ Chitty on Bills, ch. 2, p. 31 to 36 (8th edit. 1833) ; Bayley on Bills, 
 ch. 2, § 7, p. 69 to 73 (5th edit. 1830) ; Id. § 8, p. 74 ; Id. ch. 2, ^ 5, 6, p- 
 50 to 68. 
 
 2 Pothier de Change, n. 27 ; Merlin, Rupert. Lettre et Billet de Change, 
 § 3, p. 192 (edit. 1827) ; 1 Pardessus, Droit Comm. Pt. 1, tit. 2, art. 55 ; 
 Cod. Civil de France, art. 1183. 
 
 3 Code de Commerce, art. 113 ; Locr6 Esprit de Comm. Tom. 1, Liv. 1, 
 tit. 8, § 1, art. 113, p. 351 to 356 ; Sautayra, Code de Comm. art 113, 
 Comment. 
 
 4 Locr6, Esprit de Comm. Tom. 1, Lir. 1, tit. 8, p. 354, 355. — The 
 distinction between Bills of Exchange, and mere simple contracts, under 
 the French law, is very important, as well in respect to the rights, and 
 duties, and obligations, of the parties, as to the Courts having jurisdiction 
 thereof, and to the nature and extent of the remedies given, against the 
 person and effects of the delinquent party or parties. See Pothier de 
 Change, n. 124 to 127. See, also, Jousse, sur I'Ord. 1673, tit.' 5, art. 13, 
 p. 102 to 104 ; Id. ait. 13, p. 105, 106. 
 
CH. IV.] COMPETENCY OF PAETIES. 97 
 
 § 74. As to Trustees, Guardians, Executors, and Ad- 
 ministrators, and other persons, acting en autre Droit, 
 they are, by our law, generally held personally liable on 
 such bills, because they have no authority to bind, ex 
 directo, the persons for whom, or for whose benefit, or for 
 whose estate, they act ; and hence, to give any validity 
 to the draft, they must be deemed personally bound as 
 Drawers.-^ It is true, that they may exempt themselves 
 from personal responsibility, by using clear and explicit 
 words, to show that intention ; but, in the absence of 
 such words, the law will hold them bound.^ Thus, if an 
 Executor, or Administrator, should draw, or indorse, or 
 accept a Bill, in his own name, adding thereto the words 
 " as Executor," or "as Administrator," he would be per- 
 sonally responsible thereon. If he means to limit his 
 responsibility, he should confine his stipulation to pay 
 out of the estate.^ 
 
 § 75. In treating of Trustees, and Guardians, and 
 other persons, acting en autre. Droit, who become parties 
 to Bills, as personally responsible on such Bills, or on 
 contracts generally, which they make in that quality or 
 character, our law differs from the French law ; for that 
 law treats all such contracts as strictly the contracts of 
 the principal, through the instrumentality of the Trustee, 
 Guardian, or other person, acting en autre Droit. Thus, 
 
 I Story on Agency, § 280 to 287 ; Thacher v. Dinsmore, 5 Mass. R. 
 299 ; Foster v. Fuller, 6 Mass. E. 58 ; Hills v. Bannister, 8 Cowen, R. 
 31 ; Bayley on Bills, ch. 2, ^ 7, 8, p. 68 to 74 {5th edit.) 
 
 3 Bayley on Bills, ch. 2, ^ 7, 8, p. 69 to 74 (5th edit. 1830) ; Eaton v. 
 Bell, 5 B. & Aid. 34. 
 
 S Childs V. Monins, 3 Brod. & Bing. R. 460 ; King v. Thorn, 1 Term 
 R. 487; Bayley on Bills, ch. 2, ^ 8, p. 74 (5th edit. 1830.) Carter u. 
 Saunders, 2 Howard, Mississippi, E. 851 ; Robertson v. Banks, 1 Smedes 
 & Marshall, R. 666, 
 
 B. or EX. 9 \ 
 
98 BILLS OF EXCHANGE. [CH. IV. 
 
 a Tutor, when he contracts in that quality, may stipu- 
 late and promise for his minor ; for it is the minor who 
 is deemed to contract, stipulate, and promise for himself 
 by the ministry of his Tutor ; the law giving a charac- 
 ter to the Tutor, which makes his acts to be considered 
 as those of his minor, in all contracts relating to the 
 administration of the tutelage. It is the same, with re- 
 spect to a Curator, and every other legitimate Adminis- 
 trator. It is the same with an Attorney {procureur ) ; 
 for the procuration (or power of attorney,) which gives 
 him the right to use the name of the person, for whom 
 he contracts, makes the person giving it be considered 
 as contracting, himself, through the ministry of the At- 
 torney.^ But each law proceeds upon the same general 
 principle ; for, if the Principal is incapable of contract- 
 ing in the particular case, or is not bound by the con- 
 tract, then the Agent, contracting en autre Droit, . is 
 bound by each law. Thus, for example, if the Tutor of 
 a minor, not being a merchant, were to draw a Bill of 
 Exchange for the minor, the latter would not be bound 
 as Drawer, and, therefore, the Tutor would be.^ 
 
 § 76. As to Agents, if they draw or indorse, or accept 
 Bills in their own names, although on account, and for 
 the benefit of their principals, they are held personally 
 liable, because they alone can be treated, on the face of 
 the Bills, as parties.' If they would bind their prin- 
 
 1 Pothier on Obligations, n. 73, 448. 
 
 2 Code de Comm. art. 114; Locr6, Esprit du Code de Comm. Liv. 1, 
 tit. 8, § 1, Tom. 1, p. 356. The law of Scotland coincides with that of 
 France. 1 Bell, Comm. B. 3, ch. 2, § 4, p. 396 (5th edit) 
 
 3 Bayley on Bills, ch. 2, § 7, p. 69 to 74 (5th edit. 1830) ; Thomas v. 
 Bishop, 2 Str. R. 955; Goupy v. Harden, 7 Taunt. R. 159. But see 
 Sharp V. Emmet, 5 Whart. E. 288. 
 
CH. IV.] COMPETENCY OF PARTIES. 99 
 
 cipals, they must draw, indorse, or accept the Bills in 
 the name of their principals, and sign for them and in 
 their names.' [And an acceptance by one member, in 
 his own name, of a Bill addressed to a firm composed of 
 four, is binding on the individual so accepting.^] 
 
 § 77. Similar principles pervade the foreign law. 
 Agents may draw Bills (and the same rule will apply 
 to the indorsement and acceptance of Bills in the name 
 
 1 Story on Agency, !} 147 to 156, § 275 to 278 ; Bayley on Bills, ch. 2, 
 § 7, p. 69 to 75 (5th edit. 1830) ; Cliitty on Bills, ch. 6, p. 186 (8th edit. 
 1833) ; Kyd on Bills, p. 33, 34 (3d edit.) — Cases of Agency often in- 
 volve very nice and embarrassing considerations, from the peculiar lan- 
 guage of the instrument, to decide whether the Agent is personally bound 
 or not. In order to bind the principal, and exonerate himself, the Agent 
 should regularly sign thus, " A. B. (the principal) by C. D. his Agent " 
 (or Attorney, as the case may be) ; or, what is less exact, but may suffice, 
 " C. D. for A. B." Story on Agency, § 153 ; Chitty on Bills, ch. 2, p. 
 37, 38 (8th edit. 1833.) But, in practice, there are innumerable deviations 
 from this simple and appropriate form ; and the decisions, upon the various 
 oases, which have arisen in courts of justice, involve maeh conflict of doc- 
 trine and opinion, and do not seem, always, to have proceeded upon any 
 uniform principle of interpretation. Many of the cases, on this subject, 
 will be found collected in Story on Agency, § 147 to 155; Id. ^ 269 to 
 280 ; Bayley on Bills, ch. 2, § 7, p. 69 to 76 (5th edit. 1830) ; Chitty on 
 Bills, ch. 2, p. 37 to 39 (8th edit. 1833.) Even if an Agent draws, in his 
 own name, on his Principal, for the account of the latter, the Payee will 
 be entitled to hold him personally bound as Drawer. Bayley on Bills, ch. 
 2, § 7, p. 69 to 73 (5th edit. 1830) ;. Story on Agency, § 156, § 269. So, 
 an Agent who should draw a Bill in favor of his Principal, on the pur- 
 chaser of goods, sold on account of his Principal, would be personally 
 liable to the latter, as Drawer of the Bill, upon its dishonor. Lefevre v. 
 Lloyd, 5 Taunt. R. 749 ; Story on Agency, § 156, 269. However, an 
 exception is generally made in favor of a known piiblic Agent, who, if he 
 draws on account of the public, is generally held not personally responsi- 
 ble on the Bill, unless under special circumstances. Chitty on Bills, ch. 
 2, p. 37 to 39 (8th edit. 1833) ; Story on Agency, ^ 302 to 307; see also, 
 Eaton V. Bell, 5 Barn. & Aid. 37. See Fox v. Frith 10 Mees. & Wels. 
 135, 136. 
 
 2 Owen V. Van Uster, 10 Manning, Granger & Scott, R. 324 ; MoUoy, 
 de Jure Maritimo, Book 2, c. 10, ^ 18. 
 
100 BILLS OF EXCHANGE. [CH. IV 
 
 of their principals. But, then, in order to avoid per- 
 sonal responsibility, Agents must there, also, draw Bills 
 in an appropriate manner ; otherwise, they may become 
 personally responsible to the Payee. Thus, Heineccius 
 says ; Quitjl si institor cambium trassarii ad dominum, hie 
 vero bonis labatur ? Tunc distinguitur, dominine fidem se- 
 qiiutus sit remittens, an institoris. Hoc enim casu adversus 
 institorem regressum habet, aliquando etiam finito officii : illo 
 casu ipse damnum seniire tenetur. Quum vero parum ple- 
 rumque constet, utrius fidem sequutiis sit remittens : ejus 
 jiirejurando rem ad liquidum perducendam esse, censet 
 Btrychius} Perhaps the true rule of the foreign law 
 may be, (for some uncertainty seems to rest upon it,) 
 that the question is one, which resolves itself into the 
 simple consideration, not of the form of the instrument, 
 but of the fact, to whom the credit, under all the cir- 
 cumstances, is given, whether to the Principal, or to the 
 Agent.® 
 
 1 Heinecc. de Jure, Camb. cap. 4, ^ 25, 26- (edit. 1769) ; Id. cap. 5, § 
 12 ; Pothier on Oblig. n. 74, 448. 
 
 2 I have not found, in the foreign writer.?, the question treated at large, 
 when, and in what cases, and under what particular circumstances, the 
 Agent will be personally bound, or not, as Drawer of a Bill, drawn on ac- 
 count of his Principal, with the practical fulness, or distinctness, with 
 which it has been treated by the English and American Courts. It is not 
 improbable, that the doctrine of Heineccius, stated in the text, contains 
 the general principles a^^ted in th'e foreign law, without any very exact 
 consideration of the form, which the contract assumes in the written in- 
 strument. So that the question then turns, or, at least, may turn, simply 
 upon this ; To whom, taking all the facts, was the credit actually given, 
 and intended to be given ? to the Agent, or to the Principal ? See Pothier 
 de Change, n. 28. Pothier, in his Treatise on Obligations, (n. 74, 448,) 
 has pointed out, distinctly, the difference between cases, where the Agent 
 contracts in his own name, and the cases, where he contracts in the name 
 of his Principal. Thus he says, n. 74 ; " What has been hitherto said, as 
 to our only being able to stipulate or promise for ourselves, and not for 
 
CH. IV.] COMPETENCY OF PARTIES. 101 
 
 § 78. As to partners, the signature of the firm is, in 
 general, indispensable to create a liability of the part- 
 nership, as Drawers, Indorsers, or Acceptors ; -^ and each 
 partner has complete authority to use it ; and, when so 
 used, the Bill will be deemed to be on the partnership 
 account, and bind it accordingly, unless, upon the face 
 of the Bill, or upon collateral proof, it is clearly esta- 
 blished, that the party taking it, had full notice, that 
 the Bill was drawn, indorsed, or accepted, for purposes 
 and objects, not within the partnership business.^ And 
 this seems equally true in the law of France and Scot- 
 land!^ 
 
 § 79. As to corporations, according to the old law, 
 they could, generally, (for there always were some adr 
 mitted exceptions,) contract only under their corporate 
 seal. But the rule has been gradually relaxed, and 
 the exceptions enlarged, until, in our day, it may be 
 taken to be a firmly established rule in America, and 
 
 another, is to be understood as applying to contracts, which we make in our 
 own name ; but we may lend out ministry to another person, for whom we 
 may contract, stipulate, or promise ; and, in this case, it"is not we, pro- 
 perly speaking, who contract, but the other person, who contracts by our 
 ministry." And again he says, n. 448 ; " In order to raise the accessary 
 obligation of employers, the manager must have contracted in his own 
 name, although he was acting for the employer ; bat when he contracts in 
 his quality of Agent, he does not enter into any contract himself, it is his 
 employer, who contracts. Supra, ii. 74. In this case, the manager does 
 not oblige himself; it is the employer, alone, who contracts a principal ob- 
 ligation, by the ministry of his manager. When the manager contracts 
 in his own name, the contract, to oblige his employer, must concern the 
 affair to which he is appointed, and the manager must not have exceeded 
 the limits of his commission. Dig. L. 1 (a,) § 7 & 12, de Exerc. Act." 
 
 1 Chitty on Bills, p. 67 to 69 (8th edit. 1833) ; Id. p. 186 ; Story on 
 Partnership, § 102, 128, 129, 134, 136. 
 
 2 Story on Partnership, ^ 126 to § 132. 
 
 3 Story oa Partnership, § 129; Pothier o'n Oblig. n. 83 ; Pothier de 
 Soci6t6, n. 101 ; 2 Bell, Comm. B. 7, p. 616 (5th edit.) Ante, § 76. 
 
 9* 
 
102 BILLS OF EXCHANGE. [CH. IV. 
 
 admitted, to a great extent, in England, that corpora- 
 tions may contract and bind themselves by contracts 
 not under seal, made through the instrumentality of 
 their agents, and within the proper scope of the objects 
 and purposes of their charter.^ But the question is 
 more nice, as to the right of a corporation to become 
 Drawers, or Indorsers, or Acceptors of Bills of Ex- 
 change, or to become parties to any other negotiable 
 paper. That an express authority is not indispensable 
 to confer such a right, is admitted.^ It is sufficient, if 
 it be implied, as a usual and appropriate means to 
 accomplish the objects and purposes of the charter.^ 
 Corporations are expressly mentioned in the statute of 
 3 & 4 Ann. ch. 9, respecting promissory notes, as per- 
 sons who make and indorse negotiable notes, and to 
 whom such notes may be made payable ; and, as the 
 statute gives the like remedy to and for corporations 
 and others, as upon inland Bills of Exchange, it im- 
 plies, that, by the custom of merchants, they may, in 
 some cases at least, draw, indorse, accept, or sue upon 
 
 1 Bank of Columbia v. Patterson's Admin. 7 Cranch, R. 299 ; Bank 
 of the United States v. Dandridge, 12 Wheaton, K. 64, 67 to 75 ; Bever- 
 ley V. The Lincoln Gas Light & Coke Company, 6 Adolph. & Ellis, 829; 
 Church D.. The Imperial Gas Light and Coke Company, 6 Adolph. & 
 Ellis, 846 ; Story on Agency, § 16, 52, 53 ; Kyd on Bills, p. 32 (3d edit.) ; 
 Arnold v. The Mayor, &c. of Poole, 4 Mann.& Granger, R. 860. — Upon 
 this point, it doesmotseem necessary here to cite the authorities at large. 
 Many of them will be found collected in Story on Agency, § 52, 63 ; and 
 Bayley on Bills, ch. 2,^ 6, p. 53 to 68 (5th edit. 1830) ; Chitty on Bills, 
 ch. 2, p. 45 to 72. 
 
 9 Chitty on Bills, p. 17 to 21 (5th edit. 1833) ; Bayley on Bills, ch. 2, 
 § 7, p. 69, 70 (5th edit. 1830) ; Aspinwall v. Meyer, 2 Sanford, Superior 
 Ct. N. Y. R. 180. 
 
 3 See Broughton v. The Manchester Water Works Company, 3 Barn. 
 & Aid. 1, 7 to 11 ; Munn v. Commission Company, 15 Johns. R. 44. 
 
CH. IV.] COMPETENCY OF PAKTIES. 103 
 
 Bills of Exchange.' But where drawing, indorsing, or 
 accepting such Bills is obviously foreign to the pur- 
 poses of the charter, or repugnant thereto, there the 
 act becomes a nullity, and not binding upon the cor- 
 poration.® 
 
 § 80. As, then, all persons in general, of sound mind 
 and understanding, are, in law, capable of becoming 
 Drawers, Indorsers, and Acceptors of Bills of Exchange, 
 unless some disability or incompetency specially at- 
 taches to them, let us, in the next place, proceed to 
 inquire, what persons are affected by any such disabi- 
 lity 'or incompetency. It is no objection, therefore, 
 to the drawing, or indorsing, or accepting a Bill, that 
 the party is a Trustee, and draws, indorses, or accepts 
 the Bill on account of the cestui que trikt, or benefi- 
 ciary ; for the act binds him personally, in point of 
 law ; and the beneficiary has only an equitable inte- 
 rest.' The same doctrine applies to the case of part- 
 
 ' Bayley on Bills, ch. 2, § 6, p. 60, 68 (5th edit. 1830) ; Chitty on 
 Bills, (8th edit. 1833) ; Kydon Bills, p. 19, 20 (3d edit.) 
 
 2 Broughton v. Manchester Water Works Company, S Barn. & Aid. 
 1 to 12 ; Chitty on Bills, p. 17 (8th edit. 1833) ; Halstead v. Mayor of 
 New York, 5 Barbour, Sup. Ct. R. 218 ; Attorney Gen. ». Life & Fire 
 Ins. Co. 9 Paige, 477; Furniss v. Gilchrist, 1 Sandford, Superior Ct. N. 
 Y. R. 57. — Heineccius, speaking upon the subject of Partnerships (So- 
 cietates,) probably meant to include, what we should call quasi corpora- 
 tions, or joint-stock companies also. He says : " Itaque ne societates 
 quidem, tamquam personse morales, negotiationem collybisticam exercere 
 prohibentur. Immo illam exercent quotidie, quamvis alicubi legibus cau- 
 tum .sit, ut omnes et singuli socii nomina sua separatim snbscribere co- 
 gantur." Heinecc. de Camb. cap. v. ^ 15, p. 49 (edit. 1769.) In the 
 foreign law, at least in some countries, partnerships, using the name of 
 the firm, may sue and be sued in the firm's name. See Story on Partn. 
 § 221, note (1) ; Id. ^ 235, note (5) ; see, also, 2 Bell, Comm. B. 7, 
 p. 619, 620 (5th edit.) 
 
 3 Chitty on Bills, ch. 6, p. 226 (8th edit. 1833) ; Bayley on Bills, ch. 2, 
 § 7, p. 69 ; Id. ch. 5, p. 134 (5th edit. 1830.) 
 
104 BILLS OF EXCHANGE. [CH, IV. 
 
 ners, where a Bill is drawn, indorsed, or accepted in 
 the name of the partnership j for each partner is clothed 
 with full authority, for purposes within the scope of 
 the partnership, to draw, indorse, or accept a Bill in 
 behalf of the firm.^ 
 
 § 81. The cases of disability or incompetency in our 
 law may, perhaps, be reduced to four classes. (1.) First ; 
 Minors. (2.) Secondly; Married Women. (3.) Third- 
 ly ; Alien Enemies. (4.) And, Fourthly; Persons in- 
 sane, or imbecile in mind.® 
 
 1 Chitty on Bills, oh. 6, p. 226 (8th edit. 1833) ; Story on Partn. 
 ^ 101, § 102 ; Bayley on Bills, ch. 2, § 6, p. 62 to 69 (5th edit. 1830.) 
 
 2 The case of bankruptcy is sometimes deemed to create an incapacity 
 or disability. !Emt it is not a general incapacity or disability. By bank- 
 ruptcy, the Bankrupt is divested of all right and power to transfer any 
 of the property, then owned or possessed by him, with certain exceptions 
 in favor of Jona^de purchasers without notice; and the property passes 
 to his Assignee for the benefit of his Creditors ; and the Assignee may 
 sue upon Bills, aad Notes, and other choses in action, to recover the 
 same. By the Bankrupt Acts of England (see, among others, Stat. 
 6 Geo. 4, ch. 16,) the Assignee is also entitled to all the property which 
 may accrue to the Bankrupt, in any way after his bankruptcy, before he 
 obtains his certificate of discharge. But in neither case is there any 
 general personal incapacity or disability created in the Bankrupt; for he 
 may still sue, in his own name,' where he is a Trustee for a third per- 
 son, as where he has assigned a Bond, or other chose in action, for a 
 valuable consideration, before his bankruptcy ; for, then, he may sue for 
 the benefit of the Assignee. Chitty on Bills, ch. 6, p. 228 to 230 (8th 
 edit. 1833) ; Pease «. Hush, 10 Barn. & Cressw. 122 ; Carpenter o. Mar- 
 nell, 3 Bos. & Pull. 40 ; Kitchen v. Battsch, 7 East, R. 53. Nor is the 
 Bankrupt restrained from suing upon any contract made with him after 
 his bankruptcy unless he is prohibited by the Assignee to sue; for he 
 may otherwise sue as Trustee for their benefit. Ibid. ; Webb v. Fox, 
 7T. Rep. 391; Drayton v. Dale, 2 Barn. & Cressw. 293; Ashley «. 
 Bell, 2 Str. 1207; Bayley on Bills, ch. 2, § 4, p. 49, 50 (5th edit. 1830) ; 
 Chitty on Bills, ch. 6, p. 227 to 238 (8th edit, 1833.) Upon other 
 grounds, it seems improper to treat the case of bankruptcy, as creating 
 a personal incapacity, or disability, to be a party to a Bill of Exchange ; 
 for he may bind himself thereby, although he cannot, if uncertificated, 
 bind his estate. Thus, if he draws a Bill, or accepts a Bill, in favor of 
 
OH. IV.J COMPETENCY OF PARTIES. 105 
 
 § 82. Some other cases of disability and incompe- 
 tency exist in other countries. Thus, for example, 
 ecclesiastical persons, or the clergy, are, by the statute 
 law of England, prohibited, under penalties, from en- 
 gaging in trade, or farming, for lucre or profit.' But 
 this prohibition extends only to engaging in the traffic 
 of Bills of Exchange for a livelihood, or in the business 
 of merchandise or commerce ; and not to a clergyman's 
 merely becoming a party to a Bill, by drawing it for 
 purposes connected solely with his own profession or 
 clerical employment, or for the improvement of his own 
 estate, or the payment of his own debts.^ And, even 
 in cases where a clergyman shall draw Bills of Ex- 
 change by way of trade and merchandise, it may be 
 very doubtful, whether the contract is not in favor of 
 all persons but himself, obligatory, so that they may 
 recover against him ; but he, not against them.^ Simi- 
 lar prohibitions, as to the clergy and other ecclesias- 
 tical persons, exist under the Canon Law, in France, 
 which, on account of the sanctity of their profession, 
 requires them to abstain from carrying on commerce/ 
 But, then, the contract is not treated as absolutely 
 void ; but, if given for money received by a clergyman, 
 
 a third person, he makes himself liable, personally, therefor. The law 
 does not disable him from contracting with others ; but gives the As- 
 signee the benefit of contracts made by him, if he is uncertificated, and 
 the contracts are beneficial to the estate. But the Bankrupt, by his own 
 acts, cannot bind the Assignee. 
 
 1 Stat. 21 Hen. 8, ch. 13, § 5 ; 43 Geo. 3, oh. 84, § 5 ; Chitty on Bills, 
 ch. 2, § 1, p. 16 (8th edit. 1833) ; Ex parte Meymot, 1 Atk. 196. 
 
 ^ Ibid. ; Hankey v Jones, Cowp. R. 745. See, also, Ex parte Meymot, 
 1 Atk. 196. 
 
 3 Ex parte Meymot, 1 Atk. 196. 
 
 * See, also, as to the law of England, Hall v. Franklin, 3 Mees. & 
 Welsh. 259. 
 
106 BliiLS OF EXCHANGE. [CH. IV. 
 
 the contract, although drawn in the form of a Bill of 
 Exchange on a third person, who owes the Drawer, is 
 presumed to have been designed by the parties as an 
 order (rescription,) rather than a Bill of Exchange.' 
 
 § 83. Heineccius also asserts, that, although Bills of 
 Exchange were originally in use only by merchants j 
 yet, that there can be no doubt, that princes, and 
 counts, and other illustrious and noble persons, may 
 freely contract, and become parties thereto, unless 
 specially prohibited.^ And, he adds in another place, 
 that the clergy are competent to bind themselves by 
 Bills of Exchange, and also ministers of princes, and 
 noblemen, and military officers, and academical profes- 
 sors, although they may be generally prohibited from 
 engaging in trade or' commerce ; but that frequently 
 they are specially exempted from arrest on such BUls, 
 upon the grounds of public policy.* 
 
 § 84, Passing, however, to the consideration of the 
 disabilities and incapacities created by our law, let uSj 
 in the first place, consider the disability of Minors, or, 
 as they are in our law significantly called, Infants, 
 meaning all persons under twenty-one years of age. In 
 general contracts, made by Infants, are treated, (I.) as 
 void, (2.) or as voidable, (3.) or as valid. They are 
 void, when they are clearly not for the benefit of the 
 Infant ; they are voidable when they may, or may not, 
 be for his benefit, according to circumstances ; they are 
 valid when they are such as the law allows and jus- 
 
 1 Pothier de Change, n. 27. 
 
 2 Heineco. de Camb. cap. 5, § 2, 8, 14, 17. 
 
 3 Ibid. — Formerly, according to Heineccius, Jews were prohibited 
 from dealing with Christians in Bills of Exchange ; at least, by way of 
 assigning their right of action to them. Heinecc. de Camb. cap. 2, ^ 8. 
 
CH. IV.] COMPETENCY OF PARTIES. 107 
 
 tifies.' Within the latter predicament fall all contracts 
 of Infants for necessaries, suitable to their age, rank, 
 and condition in life.^ But, by our law, an Infant has 
 no capacity to draw, indorse, or accept, a Bill of Ex- 
 change, so as to bind hitnself personally in the course 
 of trade 5 for he is not at liberty to engage in trade.' 
 And even a Bill of Exchange, given for necessaries, 
 would seem, upon principle, to be invalid ; for an 
 Infant is not capable of binding himself to pay a spe- 
 cific sum, even for necessaries ; but only what they are 
 worth ; * and, a fortiori, he is not liable on a Bill of 
 Exchange, given for necessaries, which is negotiable ; 
 for that might involve him in liability to third persons.^ 
 However, Bills of Exchange drawn by Infants, are not 
 deemed so utterly without possible benefit to them 
 that they are void ; but they are deemed merely void- 
 able by them at their election.^ Hence it is, that if 
 upon coming of age, an Infant should ratify and con- 
 firm a Bill of Exchange, given by him during his in- 
 
 ' Keane v. Boycott, 2 H. Black. R. 511, 514, 515 ; Com. Dig. Enfant, 
 B. 5, 6, C. 1 to 4, 9 ; Holmes v. Blogg, 8 Taunt, R. 35 ; Id. 508 ; 
 2 Kent, Comtn. Lect. 31, p. 232 to 244 (4th edit.) ; 1 Story on Eq. Ju- 
 risp. § 240 to 243 ; 1 Black. Comm. 463 to 467 ; Wood v. Fenwick, 10 
 Mees. & Wels. 195. 
 
 2 Ibid. ; Burghart v. Hall, 4 Mees. & Welsh. 727. 
 
 3 Chitty on Bills, oh. 2, p. 21, 22 (8th edit. 1833); Bayley on Bills, 
 ch. 2, § 2, p. 44, 45 (5th edit. 1830) ; Williams v. Harrison, Carth. R. 
 160 ; S. C. 3 Salk. 197; Williamson «. Watts, 1 Camp. R. 552; Jones 
 V. Darch, 4 Price, R. 300. 
 
 4 Williamson v. Watts, 1 Camp. R. 552 ; Taylor, v. Croker, 4 Esp. 
 R. 187; Gibbs v. Merrill, 3 Taunt. R. 307 ; Trueman v. Hurst, 1 Term 
 R. 40 ; Swasey v. Vanderheyden, 10 Johns. R. 33. But see Chitty on 
 Bills, ch. 2, p. 21, 22, and note (c) (8th edit. 1833.) 
 
 5 Swasey v. Vanderheyden, 10 Johns. R. 33. 
 
 6 Gibbs V. Merrill, 3 Taunt. R. 307; Bayley on Bills, ch. 2, § 2, p. 44 
 to 46 (5th edit. 1830.) 
 
108 BILLS OP EXCHANGE. [CH. IV. 
 
 fancy for a valuable consideration, it would be binding 
 upon him.' 
 
 § 85. The doctrine above stated is strictly applicable 
 to every case where an Infant is either the Drawer or 
 the Drawee of a Bill of Exchange.^ It seems equally 
 applicable to the case where an Infant is Indorser of a 
 Bill payable to himself, or his order.^ Such a Bill is 
 undoubtedly good, in his own favor, as Payee ; for a 
 third person may, for a valuable consideration, under- 
 take to pay money to an Infant, and be bound thereby.'' 
 It is equally certain that he cannot, in consequence of 
 his general incapacity, make himself personally liable 
 to pay the debt in virtue of the contract created by 
 law by his indorsement.^ But another point remains 
 for consideration ; and that is, whether, by his indorse- 
 ment, he can transfer a title to an Indorsee, so that the 
 latter may be entitled to receive payment thereof, or 
 to sue any of the other parties to the bill. It has been 
 held that he can, since the indorsement is voidable only 
 and not void ; and, therefore, until avoided by the 
 Infant, the indorsement will be good as to the other 
 parties to the Bill.® 
 
 1 Chilly on Bills, ch. 3, p. 23 (8th edit. 1833) ; Bayley on Bills, ch. 9, 
 § 2, p. 45, 46 (5th edit. 1830.) 
 
 2 Bayley on Bills, ch. 2, § 2, p. 44 (5th edit. 1830) ; Williams v. 
 Harrison, 3 Salk. 197 ; Williamson v. Watts, 1 Camp. R. 552 ; Taylor 
 V. Croker, 4 Esp. R. 187. 
 
 3 Chitty on Bills, ch. 6, p. 224 (8th edit. 1833.) 
 
 * Bayley on Bills, ch. 2, § 2, p. 45, 46 (5th edit. 1830) ; War- 
 wick V. Brull, 2 M. & Selw. 205; S. C. 6 Taunt. R. 118; Nightin- 
 gale J). Withington, 15 Mass. R. 272 ; Holmes v. Blogg, 8 Taunt. R. 35. 
 
 5 Ibid. 
 
 6 Grey v. Cooper, 3 Doug. R. 65 ; Taylor v. Croker, 4 Esp. R. 187 ; 
 Jones V. Darch, 4 Price, R. 300; Nightingale v. Withington, 15 Mass. 
 R. 272 ; Bayley on Bills, ch. 2, § 2, p. 45, 46 (5th edit. 1830) ; Chitty 
 
CH. IV.] COMFETENOr OF PARTIES. 109 
 
 § 86. In some respects the foreiga law differs from 
 ours, as to the disabilities of persons, who are Minors 
 or Infants. Minors are not, by the foreign law, posi- 
 tively incapable of making contracts, provided the con- 
 tracts are beneficial to them. But all contracts, made 
 by them, are liable to be rescinded ; and the Minors 
 are entitled to be reinstated in their original rights, if 
 their contracts are injurious to them.^ Contracts, by 
 way of Bills of Exchange, or Promissory Notes, are 
 generally deemed injurious to them. And, hence, it 
 should seem, that Minors incur no absolute responsibi- 
 lity, and are incapable of binding themselves, either 
 as Drawers or Indorsers of Promissory Notes, or 
 Drawers, or Drawees, or Indorsers of Bills of Ex- 
 change. But, in favor of commerce, inasmuch as Minors 
 
 on Bills, ch. 2, p. 23 (8lh edit. 1833) ; Id. ch. 6, p. 224. —Lord Ellen- 
 borough seems to have thought, in the case of Taylor v. Croker, (4 Esp. 
 R. 187,) that, even after notice by the Infant to the Acceptor not to 
 pay, the Indorsee might recover against the Acceptor. But there seems 
 great reason to doubt the correctness of that decision ; at least, as applied 
 to an indorsement made after the acceptance. Where the indorsement 
 made is before the acceptance, or the Bill is drawn by an Infant, and 
 afterwards accepted, with fhe knov?ledge, that the Drawer or Indorser is 
 an Infant, there may be more room for doubt ; since the acceptance, 
 under such circumstances, may, in favor of the Indorsee, be properly held 
 to be an affirmance of the competency and capacity of the Drawer or 
 Indorser to do the act. See Chitty on Bills, ch. 2, p. 23 (8th edit. 1833) ; 
 Drayton ». Dale, 2 B. & Cressw. 293, 299. In this last case, Mr. Jus- 
 tice Bayley said: "It is a general principle, applicable to all negotiable 
 securities, that a person shall not dispute the power of another to indorse 
 an instrument, when he asserts, by the instrument, which he issues to 
 the world, that the other has such power." In Pitt v, Chappelaw, 
 (8 Mees. & Welsh. 616,) where a Bill was drawn, payable to the order 
 of a person who was then a Bankrupt, which Bill was indorsed by the 
 Bankrupt to an Indorsee, and accepted by the Drawee, it was held, that 
 the Acceptor was, as between himself and the Indorsee, estopped to deny 
 the competency of the Bankrupt to indorse the Bill. See also Braith- 
 waite V. Gardnier, 8 Adolph. & Ellis, N. S. 473. 
 1 Pothier on Oblig. n. 52. 
 
 B. OF EX. 10 
 
110 BILLS OF EXCHANGE. [CH. IV. 
 
 are permitted to engage ia it, an exception is made 
 of Minors, who are merchants, and they may become 
 parties to, and bind themselves by, Bills of Exchange, 
 and promissory notes, in their business and character, 
 as merchants. Thus, Heineccius says ; Contra non 
 ohscurum est, rigori cambiali locum non esse adversus im- 
 puleres, et minor ennes ; Ulorum enim camlia plane nullius 
 momenti sunt; Ms vero Icesis competit leneficium resiitu- 
 tionis in integrum. Excepti tamen sunt minorennes, qui 
 mercaturam exercent, quippe, qui in rebus ad mercaturam 
 pertineniibus ne Jure quidem communi in integrum restitur 
 untur} 
 
 § 87. The same rule, with similar exceptions, has 
 prevailed in France, from a very early period. It is 
 expressly recognized in the Ordinance of 1673 (tit. 1, 
 art. 6);^ and it has been since incorporated into the 
 modern Codes of France.' The Civil Code declares, 
 that Minors are inpapable of contracting ; but that they 
 cannot, on account of their incapacity, impeach their 
 contracts, except in cases provided for by law ; and 
 among these cases are those, where the contract is to 
 their injury.* But, under certain limitations. Minors 
 are permitted to engage in commerce ; and, when they 
 are so engaged, their contracts, made in the course of 
 their business, bind them ;® and, in an especial manner. 
 
 1 Pleinecc. de Camb. cap. 5, § 3, 4, 6. 
 
 2 Jousse, sur L'Ord. 1673, tit. 1, art. 6, p. 10 (8lh edit. 1802) ; Pothier 
 de Change, n. 28 ; Pothier on Oblig. n. 49, 52. 
 
 3 Code Civil of France, art. 1124, 1125, art. 1312 ; Code of Commerce, 
 art. 114 ; Pothier de Change, n. 28 ; Locr6, Esprit de Conim. Tom. 1, Liv. 
 1, tit. 8, art. 114, p. 356. 
 
 4 Code Civil of France, art. 1124, 1125, 1312 ; Id. art. 483 to 487 ; Par- 
 dessus, Droit Comm. Tom. 1, art. 56 to 62. 
 
 5 Code Civil of France, art. 487 ; Pardessus, Droit Comra. Tom. 1, art. 
 56 to 62. 
 
CH. IV.J COMPETENCY OF PARTIES. Ill 
 
 Bills of Exchange drawn, indorsed, or accepted by 
 them, in their commercial negotiations, will be obliga- 
 tory upon them.' But Promissory Notes and Bills of 
 Exchange drawn, indorsed, or accepted by Minors, who 
 are not merchants or bankers, are, by the Code of Com- 
 merce, declared to be void, in respect to them ; and, 
 therefore, the remedial justice thereon is not now con- 
 fined to cases, where the contract, created by the Bill 
 or note, is injurious to them. There is a positive and 
 absolute prohibition of their binding obligation in all 
 cases.® This prohibition, however, does not extend be- 
 yond the protection of the Minor himself; and, there- 
 fore, the Bill or note, will bind all the other parties to 
 it, not only in favor of the Minor, but also in respect to 
 each othe'r.^ 
 
 § 88. Within the like predicament, as Minors, persons 
 fall, who, by the foreign or- civil law, are interdicted, 
 and rendered incapable of contracting by reason of pro- 
 digality ; for, although such persons know, what they 
 do, yet their consent is not' deemed valid ; and they 
 are treated as persons, not sui juris, and, as having no 
 reasonable discretion.^ In some of the American States 
 a similar rule prevails, as to persons, who are put under 
 guardianship, by reason of their being addicted to habi- 
 tual drunkenness ; and, while that guardianship con- 
 tinues, they are incapable of making any valid contract, 
 so as absolutely to bind themselves thereby. 
 
 ilbid. 
 
 2 Code of Comm. art. 112 ; Locr6, Esprit de Comm. Tom. 1, Lir. 1, lit. 
 8, ^ 1, art. 114,' p. 356 to 366 ; Pardessus, Droit Comm. Tom. 1, art. 56 to 
 62. 
 
 3 Locri, Esprit de Comm. Tom. 1, Liv. 1, lit. 8, § 1, an. 112, p. 360 ; 
 Pothier on Oblig. n. 52. 
 
 4 Polhier on Oblig. n. 50 to 52. 
 
112 BILLS OP EXCHANGE. [CH. IV. 
 
 § 89. But although persons, who are interdicted, by the 
 foreign and civil law, from managing their affairs, by 
 reason of prodigality, are thus incapable of binding 
 themselves by a contract; yet they are not, absolutely, 
 incapable of contracting ; for they may, like Minors, 
 by contracting without the authority of their tutor, 
 curator, or gua,rdian, oblige others to them, although 
 not oblige themselves to others. And this is, accord- 
 ingly laid down in the Institutes and Digest. Namque 
 placttit ineliorem mnditionem licere eis facere, etimn sine 
 tutoris audoriiate} - Is, cui honis interdictum est, stipulmido 
 sibi acqutirii? The reason is, that the power of tutors, 
 curators, and guardians is established in favor of Minors 
 and interdicted persons, and their assistance is necessary 
 only for the interest of the persons under their charge, 
 and from the apprehension of their being deceived ; 
 and, consequently, such assistance becomes superfluous, 
 when, in fact, they make their condition better.^ 
 
 § 90. Secondly, as to married women. By the law 
 of England and America a married woman is incapable, 
 in any case, of becoming a party to a~^ Bill of Exchange, 
 so as to charge herself with any obligation whatsoever, 
 ordinarily arising therefrom.* This results from her 
 general disability to enter into any contract, under the 
 Common Law; for, during the marriage, her very being 
 or legal existence, as a distinct person, is suspended, or, 
 at least, is incorporated and consolidated, into that of 
 
 1 Inst. Lib. 1, tit. 21. 
 
 s Dig. Lib. 45, tit. 1,1. 6. 
 
 3 Ibid. ; Pothier on Oblig. n. 53. 
 
 4 Bayley on Bills, ch. 2, \ 3, p. 47, 48 {5th edit. 1830) ; Chitty on Bills; 
 ch. 2, p. 24 (8th edit. 1833) ; Id. ch. 6, p. 225; Edwards v. Davis, 16 
 Johns. R. 281 ; Com. Dig. Baron & Feme, Q. 
 
CH. IV.] COMPETENCY OP PAETIES. 113 
 
 her husband.' There are certaia exceptions, recognized 
 by Courts of Equity, and by the custom of London, 
 which it is unnecessary to advert to, since they have 
 no manner of application to the ordinary doctrines re- 
 specting "Bills of Exchange.^ It will, generally, make 
 no difference, as to this disability of a married woman, 
 at the Common Law, to bind herself by any obligation, 
 as a party to a Bill of Exchange, that she is, at the 
 time, living separate and apart from her husband ; ^ or, 
 that she has a separate maintenance secured to her ; * 
 or, that she has eloped, and is living, notoriously, in a 
 state of adultery ^^ or, even, that she is separated from 
 her husband by a decree of divorce, a mensd et thoro ; 
 for nothing,' but a divorce, a vinculo matrimonii, will, re- 
 store her ability.® 
 
 1 I Black. Coram. 442; 2 Story, Eq. Jurisp. § 1367; Bayley on Bills, 
 oh. 2, § 3, p. 47, 48 (Sth edit. 1830) ; Caudell v. Shaw, 4 Term R. 361 ; 
 Co. Liu. 132, 1. 133, a; Com. Dig. Baron & Feme, D. Q. 
 
 2 See 2 Story on Eq. Jurisp. § 1367 to 1403 ; Chitty on Bills, ch. 2, § 1, 
 p. 24, 25 (8th edit. 1833) ; Caudell v. Shaw, 4 Term R. 361 ; Beard v. 
 Webb, 2 Bos. & Pull. 93 ; Stewart v. Lord Kirkwall, 3 Madd. R. 387.— 
 In Equity, a married woman may contract with reference to her own pro- 
 perty, secured to her separate use ; and, therefore, she may accept a Bill 
 of Exchange; and the same may become payable out of her separate pro- 
 perty, although she cannot, otherwise, bind herself, personally, for the debt. 
 Stewart v. Lord Kirkwall, 3 Madd. R. 387 ; 2 Story, Eq. Jurisp. § 1397 ; 
 Francis v. Wigswell, 1 Madd. R. 258 ; Aylett v. Aston, 1 Mylne & 
 Craig, 105, 111 ; Owens v. Dickinson, 1 Craig & Phillips, R. 48 ; Gard- 
 ner V. Gardner, 22 Wend. R. 526. 
 
 3 Marshall v. Rutton, 8 Term R. 545 ; Bayley on Bills, ch. 2, § 3, p. 
 48 (5lh edit. 1830) ; Chitty on Bills, ch. 2, § 1, p. 24, 25 (8th edit. 1833) ; 
 Hatchett v. Baddeley, 2 W. Black. R. 1079 ; Lean v. Shute, 2 W. Black. 
 1195, 1196; Hyde v. Price, 3 Ves. Jr. 443. 
 
 * Ibid. 
 
 5 Ibid. 
 
 8 Ibid.; Co. Litt. 134, a ; Lewis v. Lee, 3 Barn. & Cressw. 291 ; Faith- 
 orne v. Blaquire, 6 M. & Selw. 73. — In Massachusetts, a diflFerent rule 
 prevails; for there, under the statutes, allowing a divorce, a mensaet thoro, 
 10* 
 
114 BILLS OF EXCHANGE. [cil. IV. 
 
 § 91. There are, indeed, some exceptions to the 
 general rule, created by the Common Law, which 
 stand upon peculiar grounds, and are quite consistent 
 
 it has been held, that, although, after a decree of sueh a divorce, the hus- 
 band's right to reduce into possession choses in action, which belonged to 
 his wife, during the coverture, and prior to the divorce, remains ; yet, after 
 such divorce, she is to be treated as a feme sole, in respect to property, 
 subsequently acquired on debts contracted by her. Dean v. Richmond 
 (5 Pick. R. 461.) Upon that occasion it was admitted, that the statute 
 did not directly apply to the case. But Mr. Chief Justice Parker, in de- 
 livering the opinion of the Court, said ; " But the question, which alone 
 effects the present action, in regard to the capacity of the plaintiff to sue, 
 appears not to have been settled, and that is, the effect of a divorce, a 
 mensa et thoro. Such a divorce does not dissolve the marriage, though it 
 separates the parties, and establishes separate interests betvf een them. By 
 our statute, the wife, after such a divorce, is not only free from the control 
 of the husband, but all her interest in real estate is restored to her ; alimony 
 is allowed her, out of the estate of her husband ; and she is left to procure 
 her own maintenance by her own labor, where the husband is unable to 
 afford any alimony ; which is the case in most instances of divorce of this 
 nature. In addition to these burdens, she frequently has to support young 
 children, without any means but her own industry. Shall she not maintain 
 an action, even against her husband, for alimony, which, though able, he 
 may refuse to pay? May she not sue those who trespass upon her lands, 
 or the tenants, who may withhold the rent, or for the earnings of her labor, 
 or the specific articles of property she may have purchased with the sav- 
 ings of her alimony, her rents, or the rewards of her labor? If not, the 
 law, instead of protecting her from the oppression, and abuse of power, of 
 the husband, has merely released him from an inconvenient connection, re- 
 serving to him the right to deprive her of ail comfort and support. If she 
 must join him in any action, he may release it ; he may receive her rents, 
 and discharge her tenants ; he may seize all her necessary articles of fur- 
 niture, and appropriate them to himself; and he may intercept the little 
 fruits of her industry, which are absolutely necessary for her support. If 
 the Common Law allows all this, and there is no relief, except by applica- 
 tion to a Court of Equity, the Common Law is, indeed, most impotent; 
 and, where there is no Court of Equity, as there is not, with us, to these 
 purposes, the system is most iniquitous. But it is not so. The Common 
 Law only prohibits actions by women, who have husbands alive, whose 
 rights are not impaired by law, but by compact between them, the law re- 
 cognizing no authority to make such compacts. Where the law itself has 
 separated them, and established separate interests, and separate property. 
 
CH. IV.] COMPETENCY OF PARTIES. 11 5 
 
 with its application to ordinary cases. Thus, for ex- 
 ample, if the husband has abjured the realm, or if he is 
 deemed, in contemplation of law, to be civilly (although 
 not naturally) dead, -as, if he is, by a judicial sentence, 
 or otherwise, banished, or transported for life, or for a 
 
 it acknowledges no such absurdity, as to continue the power of the husband 
 over every thing hut the person of the wife. No case appears in the Eng- 
 lish books, and, without doubt, because the interests of the wife, so situ- 
 ated, may be taken care of in Chancery. In Bac. Abr. Baron & Feme. 
 M., the editor, in the margin, puts the qusre, whether a woman, divorced, 
 a mensa et thoro, may not be sued, without her husband ; which is enough 
 to show, that, until his time, there had been no decision to the contrary, 
 and I do not find, that there has been any since. In a recently published 
 book, which I trust, from the eminence of its author, and the merits of the 
 work, will soon become of common reference in our Courts, (Kent's Com- 
 mentaries, Vol, II. p. 136,) the learned author, after tracing the English 
 authorities, upon the subject of liability of married women, living separate, 
 and having maintenance, says ; ' I should apprehend that the wife could 
 sue, and be sued, without her husband, when the separation between the 
 husband and wife was by the act of the law, and that takes place not only 
 in the case of a divorce a mensa et thoro, but also in the case of imprison- 
 ment of the husband, as a punishment for crimes. Such a separation may, 
 in this respect, be equivalent to transportation for a limited time ; and the 
 sentence, which suspended the marital power suspends the disability of 
 the wife to act for herself, because she cannot have the authority of her 
 husband, and is necessarily deprived of his protection.' So far as this 
 opinion relates to the case of divorce, we fully concur with him, and are 
 satisfied, that, although the marriage is not, to all purposes dissolved by a 
 divorce, a mensa et thoro, it is so far suspended, that the wife may main- 
 tain her rights by suit, whether for injuries done to her person or property, 
 or in regard to contracts, express or implied, arising after the divorce, and 
 that she shall not be obliged to join her husband in such suit ; and, to the 
 same extent, she is liable to be sued alone, she being, to all legal intents, 
 ■a feme sole, in regard to subjects of this nature. S&ch, however, is not 
 the law of England, it having bsen recently decided, that coverture is a 
 good plea, notwithstanding a divorce, a mensa et thoro. Lewis v. Lee, 
 3 Barn. & Cressw. 291. But the difference in the administration of their 
 law of divorce and ours, and the power of the Court of Chancery there, to 
 protect the suffering party, will sufficiently account for the seeming rigor 
 of their Common Law on this subject. If the husband is not liable for the 
 debts of the wife, after a divorce, a mensa, the chief reason for denying 
 her the right to sue alone, fails." 5 Pick. E. p. 465 to 467. 
 
116 BILLS OF EXCHANGE. [CH. IV. 
 
 term of years^ or if he has, by a religious profession, 
 renounced civil life, the disability of the wife is sus^ 
 pended, during that period, and her capacity to contract 
 is restored.^ So, a married woman, resident in any 
 country, whose husband is an alien, and never has been 
 in that country, has been held to be restored to the like 
 capacity ; ^ and ct, fortiori, the rule will apply, if he is 
 an alien enemy .^ 
 
 § 92. With these exceptions, and others, which stand, 
 or may stand, upon analogous grounds, the general 
 rule prevails, that married women cannot bind them- 
 selves, personally, by contracts, to third persons ; and 
 consequently, they cannot bind themselves, as parties 
 to any Bill of Exchange, either as Drawers, or as In- 
 dorsers, or as Acceptors. But, it by no means follows, 
 that other parties may not be bound to them by, and 
 under, such instruments, and that they may not, sub 
 modo, possess or pass a title thereto, which shall be ef- 
 fectual between other persons and parties. They may 
 certainly act as Agents of third persons, in drawing, in- 
 dorsing, and accepting Bills of Exchange;* and they 
 may bind their own husbands, as Drawers, or Indorsers, 
 or Acceptors, if they act by their express authority, or 
 with their implied consent and approbation. Thus, for 
 
 1 Hatchett 0. Baddeley, 2 Wra. Black. 1079; Marshall v. Rutton, 8 
 Term R. 545 ; Bayley on Bills, ch. 2, ^ 3, p. 47, 48 (5th edit. 1830) ; 
 Chitty on Bills, ch. -2, § 1, p. 24, 25 (8th edit. 1833) ; Bayley on Bills, ch. 
 2, § 3, p. 47, (5th edit.) ; Sparrow v. Carruthers, cited 1 Term. R 6; Co. 
 Litt. 133 a, and Harg. note (3) ; Story on Partn. ^ 10 ; Carroll v. Blen- 
 cow, 4 Esp. R. 97 ; Newson v. Bowen, 3 P. Will. 37. 
 
 2 Kay V. Duchess da Pienne, 3 Camp. R. 123 ; Gregory v. Paul, 15 
 Mass. R. 31. See Gaillon v. L'Aigle, 1 Bos. & Pull. 357 ; Abbot v. 
 Bayley, 6 Pick. R. 89. 
 
 3 Derry v. Duchess of Mazarine, 1 Ld. Raym. 147. 
 
 4 Story on Agency, ^ 7, and the authorities there cited. 
 
CH. IV.] COMPETENCY OF PARTIES. 117 
 
 example, the wife may draw, or indorse, or accept a Bill, 
 in the name of her husband, [or even in her own name '] 
 with his express or implied consent.^ On the other 
 hand, if a note be made payable, or indorsed, to a mar- 
 ried woman, or her order, whose husband is under no 
 civil incapacity, it becomes immediately, by operation 
 of law, payable to the husband, or his order ; ^ and he 
 may, at his election, indorse it, or . negotiate it, or sue 
 upon it, in his own name ;* or, he may sue upon it in 
 the joint names of himself, and his wife ; ^ or he may 
 allow her to indorse, or negotiate it, in her own name. 
 And, in this last case, it may be declared upon, either, 
 as indorsed by her husband, or in her own name with 
 his cofiisent ; and thus a good title may be acquired by 
 the Indorsee against the husband, as well as against the 
 other parties to the Bill.^ 
 
 § 93. Bills of Exchange, drawn or accepted by the 
 wife before marriage, are binding upon her after the 
 marriage, and both the husband and wife may be sued 
 
 1 Lindus v. Bradwell, 5 Manning, Granger & Scott, 583. 
 
 2 Bayley on Bills, ch. 2, § 3, p. 48, 49 (5tii edit. 1830) ; Smith v. Ped- 
 ley, cited ibid. 
 
 3 Bayley on Bills, ch. 2, § 3, p. 48, 49 (5th edit. 1830) ; Arnauld v. 
 Revoult, 1 Brod. & Biag. R. 443 ; Philliskirk v. Pluckwell, 2 M. & Selw. 
 393 ; Draper v. Jackson, 16 Mass. R. 480; Commonwealth v. Manley, 12 
 Pick. R. 173 ; Russell v. Brooks, 7 Pick. R. 65 ; Richards v. Richards, 2 
 Barn. & Adolph. 447. 
 
 4 Ibid. ; Burrough v. Moss, 10 B. & Cressw. 558 ; Mason v. Morgan, 2 
 Adolph. & Ellis, 30. 
 
 s Ibid. ; Richards v. Richards, 2 Barn. & Adolph. 447. 
 
 6 Bayley on Bills, ch. 2, ^ 3, p. 47, 48 (5th edit. 1830) ; Chitty on Bills, 
 ch. 2, § 1, p. 25 to 27 (8th edit. 1833) ; Id. ch. 6, p. 225; Barlow «. 
 Bishop, 1 East, R. 438 ; Cotes v. Davis, 1 Camp. R. 485 ; Prestwick v. 
 Marshall, 4 Carr. & Payne, 594; S. C. 7 Bing. R. 565 ; Burrough v. 
 Moss, 10 B. & Cressw. 558; Mason ti. Morgan, 2 Adolph. & Ellis, 30; 
 Lindus V. Bradwell, 5 Manning, Granger & Scott, 683. 
 
118 
 
 BILLS OP EXCHANGE. [CH. IV. 
 
 therefor by the Holder. Bills of Exchange, made be- 
 fore marriage, [or during marriage '] and payable to the 
 wife, or her order, become, like other choses in action, 
 the property of the husband, if he reduces them into 
 possession during the coverture.® But, if they are not 
 so reduced into possession, and the wife survives him, 
 she will be entitled to them, in right of her survivorship.^ 
 On the other hand, if he survives her, and they are not 
 reduced into possession before her death, then her per- 
 sonal representatives will be entitled to sue for them ; 
 but the husband will be entitled to the proceeds, when 
 recovered, in right of his survivorship.'* The same doc- 
 trine will apply throughout as to Bills of Exchange, and 
 other choses in action, made and given to the wife after 
 the coverture ; with this distinction, applicable to such 
 notes, and other choses in action, after the coverture, 
 that the husband does not, by some overt act, such as 
 bringing an action in his own name, or indorsing or 
 assigning them, which are deemed equivalent to re^ 
 ducing them into possession, elect to hold them exclu- 
 sively for his own use, and thus disagree to the interest 
 of his wife therein.* 
 
 1 Scarpel]ini v. Atcheson,7 Adolph. & Ellis, N. S. R. 864 ; Howard v. 
 Oakes, 3'Welsby, Hurlstark & Gordon, R. 136. 
 
 2 Richards v. Richards, 2 Barn. & Adolph. 447; Co. Litt. 351 5; Gar- 
 forth V. Bradley, 2 Ves. 675; Belts v. Kimpton, 2 Barn. & Adolph. 273 ; 
 Com. Dig. Baron & Peme, E. 3 ; McNeilage v. HoUoway, 1 Barn. & AM. 
 218 ; Legg v. Legg, 8 Mass. R. 99 ; Howes v. Bigelow, 13 Mass. R. 384; 
 Dean v. Richmond, 5 Pick. R. 461 ; Chitfy on Bills, oh. 6, p. 225 (8th 
 edit. 1833) ; Id. ch. 2, § 1, p. 26, 27. 
 
 3 Ibid.; Com. Dig. Baron & Feme, F. 1, 2; Draper u. Jackson, 16 
 Mass. R. 480 , Slanwood v. Stanwood, 17 Mass. R. 57. 
 
 * Betts V. Kimpton, 2 Barn. & Adolph. 273 ; Co. Litt, 351 a, and Mr. 
 Butler's note; Cart v. Rees, 1 P. Will. R. 381. 
 
 5 Richards v. Richards, 2 Barn. & Adolph. 273 ; Garforth v. Bradley, 2 
 Ves. 675 ; Dean v. Richmond, 5 Pick. R. 461 ; Galers v. Maderley, 6 
 
CH. IV.] COMPETENCT OF PARTIES. 119 
 
 § 94. We have already had occasion to state, that 
 women are, generally, by the French law, disabled from 
 
 Mees. & Welsh. 423 ; Chitty on Bills, ch. 6, p. 225 (8th edit. 1833) ; Id. 
 oh. 2, ^ I, p. 26, 27. —In McNeilage v. Holloway (1 Barn. & Aid. 218,) 
 it was held, that where a Bill of Exchange was made payable to a feme 
 sole, or her order, before marriage, and she intermarried before the note 
 became due, her husband might sue thereon in his own name, without 
 joining his wife, although the latter had not indorsed the Bill. Upon that 
 occasion, Mr. Justice Bayley said ; " This being a negotiable security, the 
 right of action shifts with the possession. Chattels personal, vest abso- 
 lutely in the husband by marriage. Choses in action do not ; for, in order 
 to reduce them into possession, it is necessary to join the wife. The case 
 of a negotiable security, is a middle case ; whoever has the instrument in 
 his possession, and the legal right to it, may sue upon it in his own name. 
 It differs, in this respect from a Bond, and other securities not negotiable. 
 By assigning a Bond, a right of suing only in the name of the Obligee is 
 conferred. The Bill Is payable to the wife, and the effect of the marriage 
 is not to destroy the negotiability of the instrument. In whom, then, will 
 the power of indorsing vest? Certainly, not in the wife, for her power to 
 do so is superseded by the marriage ; then it must he in the husband. It 
 may be said, that he could not indorse to himself: perhaps not; because, 
 in that case, there would be no transfer ; but, that must he on the ground 
 of his having the entire interest in the Bill without indorsement. We 
 break in upon no principle, therefore, by saying, that this is a species of 
 property, in the possession of the wife, at the time of the marriage, which 
 by the act of marriage itself, vested in the husband." But this decision 
 is open to much observation ; and, indeed, it is plain, from the subsequent 
 case of Richards v, Richards, (2 Barn. & Adolph. 447, 453,) that the 
 Court were not entirely satisfied with that case as an authority. It may, 
 indeed, as to the point, that a Bill is a personal chattel, and not a chose in 
 action, be deemed entirely overruled by the late case of Galers v. Mader- 
 jey, 6 Mees. &. Welsh. R. 423, where Mr. Baron Parke said ; " A Promis- 
 sory Note is not a personal chattel in possession, but a chose in action of 
 a peculiar nature ; but which has, indeed, been made, by statute, assign- 
 able, and transferable, accordin'g to the custom of merchants, like a Bill of 
 Exchange ; yet, still, it is a chose in action, and nothing more. When a 
 chose in action, such as a Bond or Note, is given to a feme covert, the 
 husband may elect to let his wife have the benefit of it, or, if he thinks 
 proper, he may take it himself; and, if, in this case, the husband had, in 
 his lifetime, brought an action upon this note, in his own name, that would 
 have amounted to an election to take it himself, and to an expression of 
 dissent on his part, to his wife's having any interest in it. On the other 
 
120 BILLS OF EXCHANGE. [CH. IV. 
 
 binding themselves to absolute obligations, as Makers, 
 or Indorsers of Promissory Notes, or as Drawers, In- 
 dorsers, or Acceptors of Bills of Exchange, unless they 
 are regular merchants, and carry on trade, as such.' 
 'And this disability equally applies, whether they are 
 married or unmarried, whether they are maidens, or 
 widows. A married woman, therefore, who is not a re- 
 gular merchant, is equally within the interdiction, 
 whether she is authorized by her husband to do the act, 
 or not ; ^ for this interdiction is designed for her protec- 
 tion and safety against the ordinary and summary re- 
 medies against the person, and the property, which 
 
 hand, he may, if he pleases, leave it as it is, and, in that case, the re- 
 medy on it survives to the wife, or, he may, according to the decision in 
 Philliskirk v. Pluckwell, adopt another course, and join her name with his 
 own ; and, in that case, if he should die after judgment, the wife would be 
 entitled to the benefit of the note, as the judgment would survive to her. 
 The only doubt in this case, arose from the observation of Lord Ellen- 
 borough, in McNeilage v. HoUoway, that a Promissory Note may be 
 treated as a personal chattel in possession. Now, in that respect, I think 
 there was a mistake, and an incorrect expression used ; but it was unne- 
 cessary for his Lordship to lay down such a doctrine, in order to decide the 
 case then before him. In fact, the decision in the subsequent case of 
 Richards v. Richards, has qualified that position. In that case, the Court 
 of King's Bench said, that a Promissory Note was, in the ordinary course 
 of things, a chose in action, and that there was nothing to take it out of the 
 common rule, that choses in action, given to the wife, survive to her after 
 the death of her husband, unless he has reduced them into possession. 
 The case of Nash v. Nash, is also an authority in favor of the position, 
 that it survives to the wife ; and, although that case was decided before 
 McNeilage v. Holloway, it does not appear to have been cited in the latter 
 case. I am of opinion, that the note must be considered as having sur- 
 vived to the wife, and her executor was, therefore, the proper person to 
 sue." See, also. Com. Dig. Baron & Feme. V. W. X. ; Moore v. Earle, 
 13 Wend. R. 271. 
 
 1 Ante, § 73 ; Locr6, Esprit du Code de Comm. Tom. 1, tit. 8, ^ I, art. 
 113, p. 351 to 355 ; Code de Comm. art. 113. 
 
 2 Ibid. 
 
CH. IV.] COMPETENCY OF PARTIES. 121 
 
 Bills of Exchange and Promissory Notes generally carry 
 with them, under the French law.^ 
 
 § 95. We are not, however, to understand (as has 
 been already suggested) from this statement, that if 
 an unmarried woman, or a married woman, with the 
 authority and consent of her husband, not being a 
 merchant, should sign, or indorse, or accept a Bill of 
 Exchange, or Promissory Note, it would, by the French 
 law, be an absolute nullity. But we are only to under- 
 stand, that it will be reduced to the case of a simple 
 promise on her part, which, in that law, imports, or may 
 import, very diiferent rights, remedies, and obligations.® 
 For unmarried women, and married women, with the 
 consent of their husbands, may enter, under ordinary 
 circumstances, into a valid contract. The interdiction 
 only applies, to prevent women, whether married or 
 unmarried, from incurring the ordinary responsibilities 
 of Drawers, Inaorsers, or Acceptors, and from being 
 subjected to the ordinary remedies, to enforce the 
 rights of the Holder against persons in that predica- 
 ment. But this interdiction does not render a married 
 woman incompetent to make Promissory Notes, or to 
 draw, indorse, or accept Bills of Exchange, in the name 
 of her husband, with his authority and consent ; for 
 then she is not personally bound ; for such a Bill or 
 note is treated as his personal contract, through the 
 instrumentality of his agent.^ 
 
 § 96. But married women, who, with the consent of 
 
 1 Ibid. But see Pothierde Change, n. 28 ; Santayra, Code de Comm. 
 art. 113, p. 78, 79. 
 
 2 Ante, § 73, note (3.) 
 
 3 Locr6, Esprit du Code de Comm. Tom. 1, tit. 8, §' 1, art. 113, p. 354 ; 
 Pothier de Change, n. 38. 
 
 B. OF EX. 11 
 
122 BILLS OF EXCHANGE. [CH. IV. 
 
 their husbands, carry on trade separately, as regular 
 merchants, may bind themselves as parties to Promis- 
 sory Notes and Bills of Exchange, in the course of 
 their business ; but, as they cannot so engage in busi- 
 ness without such consent, it foUows that they cannot 
 contract any valid engagements, even as merchants, 
 where the consent of the husband is withheld, or he 
 interdicts the engagement in trade.^ 
 
 § 97. But, although a Bill of Exchange, or Promis- 
 sory Note, drawn under the circumstances above stated, 
 may not be binding personally upon the woman her- 
 self, either as Drawer, or Indorser, or Acceptor ; yet, as 
 between the other parties to it, it may be of full force 
 and obligation. Thus, if a Bill be drawn or indorsed 
 by a woman, under circumstances of interdiction, still, 
 if accepted, it may be binding between the Indorsee, or 
 other Holder, and the Acceptor.^ And, in like man- 
 ner, a Promissory Note drawn or indolsed by a woman 
 under interdiction, will be binding between the other 
 parties thereto. 
 
 § 97«. There seems to be another difference between 
 our law and that of France, in respect to married 
 women ; and that is, that, as married women, by the 
 French law, are incapable of contracting with other 
 persons without the consent and authority of their hus- 
 bands, they cannot oblige other persons thereby to 
 them, any more than they can oblige themselves to 
 other persons ; for they cannot, without the authority 
 and consent of their husbands, contract in any manner. 
 
 1 Pardessus, Droit Comm. Tom. 1, ait. 63, p. 311, 312; CodedeComm. 
 art. 45 ; Code Civil of France, art. 220 ; Merlin, R6pert. Lettre et Billet 
 de Change, § 3, art. 6, p. 194, 195 (edit. 1827.) 
 
 2 Loor6, Esprit du Code de Comm. Tom. 1, tit. 8, § 1, art. 113, p. 355. 
 
CH. IV.J COMPETENCY OP PARTIES. 
 
 123 
 
 whether the contract be for their detriment, or for their 
 benefit.^ And, therefore, a Bill of Exchange, or Pro- 
 missory Note, made payable to them, would not be 
 obligatory in their favor ; in whioyh respect, the case 
 differs from that of minors, and prodigals, under the 
 French law.^ But, in our law, such a Bill or Note 
 would clearly be good in favor of the husband, who 
 might adopt the act, and sue upon the Bill or Note in 
 his own name.' 
 
 § 98. Heineccius informs us, that, in the territories 
 of Brunswick, women are strictly bound by the laws of 
 Exchange; and in the other German provinces they 
 are also only bound then, when they exercise the busi- 
 ness of merchandise.* But, if authority is granted to 
 women to carry on the business of money brokerage, 
 regularly, they are not at liberty to engage in Ex- 
 change, unless under the guidance of a Curator, or 
 other Administrator. And there is no doubt whatso- 
 ever, that, if a woman enters into a contract of Ex- 
 change for other persons, the contract is invalid.^ Even 
 when a woman is a merchant, she is not bound as a 
 party, except to Bills of Exchange, drawn in the course 
 of her business, as such ; which, however, will be pre- 
 sumed, unless the contrary is shown.^ The same rules 
 would probably apply to Promissory Notes made or 
 indorsed by women under the like circumstances. 
 
 § 99. Thirdly, as to Alien Enemies. The doctrine 
 is now very clearly established, that a state of war 
 
 1 Fothiei on Obligations, n. 52. 
 
 2 Ibid. 
 
 3 Ante, § 86 to 89. 
 
 * Heinecc. du Jure Camb. cap. 5, § 5 to 7. 
 5 Ibid. 6 Ibid. 
 
124 BILLS OF EXCHANGE. [CH. IV. 
 
 between two countries interposes an absolute inter- 
 ruption and interdiction of all commercial correspon- 
 dence, intercourse, and dealing between the subjects or 
 citizens of the two countries.^ It would be utterly in- 
 compatible with all the known rights and duties of the 
 parties, to suffer individuals to carry on friendly and 
 commercial intercourse with each other, while the 
 governments to which they respectively belonged were 
 in open hostility with each other ; or, in other words, 
 that the subjects or citizens should be at peace, while 
 the nations were at war.® Upon this ground, the rule 
 is now generally, if not universally, recognized, that all 
 contracts made between the subjects or citizens of dif- 
 ferent countries, which are at war with each other, are 
 utterly void ; or, as the rule is often briefly expressed, 
 Contracts made with an enemy are void.^ They are 
 not merely voidable ; but they are, ab engine, void, and 
 incapable of being enforced, or confirmed.* In this 
 respect they differ essentially from contracts made 
 between the subjects of different countries in a time of 
 peace; for a subsequent war between the countries 
 
 1 1 Kent, Coram. Lect. 3, p. 66 to "69 (4th edit.) ; Potts ». Bell, 
 8 Term R. 548 ; Willison v. Patleson, 7 Taunt. R. 439 ; The Indian 
 Chief, 3 Rob. R. 22 ; The Jonge Picter, 4 Rob. R. 49 ; The Franklin, 
 6 Rob. R. 127; The Venus, 4 Rob. R. 355; The Caroline, 6 Rob. R. 
 336 ; Griswold v. Waddington, 15 Johns. R. 57 ; S. C. 16 Johns. R. 
 438; The Rapid, 8 Cranch, R. 155; The Julia, 8 Cranch, R. 181; 
 Soholefield v. Eichelberger, 7 Peters, R. 680 ; Ex parte Boussmaker, 
 13 Ves. 71; Antoine v. Morshead, 6 Taunt. R. 237. — The masterly 
 judgment of Mr. Chancellor Kent, in the Court of Errors, in the case of 
 Griswold v. Waddington, 16 Johns. R. 438, examines and exhausts the 
 whole learning upon this subject. There cannot, perhaps, be found in 
 the judicial annals of our country any case in which the resources of a 
 great mind acting upon the most comprehensive researches have been 
 more eminently or successfully displayed. 
 
 2 Ibid. 3 Ibid. 4 Ibid. 
 
CH. IV.] COMPETENCY OF PARTIES. 125 
 
 does not avoid or extinguish those contracts ; but only 
 suspends the right to enforce them in the belligerent 
 countries, by reason of the personal disability of alien 
 enemies to sue or be sued. As soon, however, as peace 
 is restored, the right revives, and these contracts retain 
 or reacquire all their original obligation, and may be 
 enforced in the judicial tribunals Of either country, as 
 the parties then possess, what is technically called, a 
 persona standi in jvdicio} 
 
 § 100. Hence, an alien enemy cannot, /a^raj«^e helb, 
 draw a Bill upon a subject, belonging to the adverse 
 country, or indorse a Bill to such a subject, or accept a 
 Bill drawn by such a subject ; for, in each case, as 
 between the alien enemies, the contract is treated as 
 utterly void, and founded in illegal communication, in- 
 tercourse, or trade.^ The same rule applies to the pur- 
 chase of Bills drawn on the enemy's country, and the 
 remittance or deposit of the funds there ; and the buy- 
 ing or selling of Exchange there.s The same rule also 
 applies to Promissory Notes made or indorsed to or by 
 an alien enemy. 
 
 § 101. But certain exceptions have been allowed, 
 either as compatible with the principles, or as resulting 
 from the very necessities and accidents, of war itself. 
 Thus, a Bill of Exchange, or Promissory Note, drawn 
 or negotiated in favor of any person, competent to sue, 
 would doubtless, be upheld, if it was given for the ran- 
 
 1 1 Kent, Comtn. Lect.S, p. 67 to 69 (4th edit.) ; Griswold v. Wad- 
 dinglon, 15 Johns. R. 57 ; S. C. 16 Johns. R. 438 ; Potts v. Bell, STeira 
 R. 548; Willison u. Patteson, 7 Taunt. R. 439; Scholefield «. Eichel- 
 berger, 7 Peters, R. 580 ; Antoine v. Morshead, 6 Taunt. R. 237 ; FJindt 
 V. Waters, 15 East, R. 265 ; Ex parte Boussraaker, 13 Ves. 71. 
 
 = Ibid. 
 
 'Ibid. 
 
 .11* 
 
126 BILLS OF EXCHANGE. [CH. IV. 
 
 som of a captured ship ; for such a ransom is upheld 
 by the Law of Nations, as a sacred and inviolable con- 
 tract, and if not prohibited by some statute, would be 
 deemed in a Court of Admiralty, acting under the Law 
 of Nations, as entitled to be enforced.-' So, if a person 
 who is a prisoner of war, should draw or indorse A Bill, 
 drawn upon a fellow subject, resident in his own coun- 
 try, or should make or indorse a Promissory Note, that 
 Bill, or Note, whether made payable to an alien enemy, 
 or indorsed to him, will be held valid, if it be made or 
 indorsed to the alien enemy, for the purpose of obtain- 
 ing necessaries and subsistence for the prisoner.® The 
 ground of this exception must be, that it is in further- 
 ance of the ordinary duty of every nation, not to suffer 
 its own subjects to be deprived of the means of support 
 and maintenance, by the strict application of principles, 
 intended to guard against other public mischiefs ; and 
 that the allowance of such Bills or Notes for such ob- 
 jects can have no tendency to promote the interests of 
 the enemy, or to foster any illegal or injurious com- 
 merce with the enemy. 
 
 ^ 102. Another exception may fairly be deemed to 
 exist in cases of cartel ships, where Bills or Notes are 
 drawn and negotiated in the enemy's country, for pur- 
 poses connected with the objects of the voyage ; such 
 as for necessary repairs, provisions, and other supplies. 
 
 1 See Cornu v. Blackburne, 2 Doug. R. 641 ; Anthon v. Fisher, 3 Doug. 
 R. 649, note ; Yates v. Hall, 1 Terra R. 73 ; Maisonnaire v. Keating, 2 
 Gallis. R. 325 ; Ricord v. Bettingham, 3 Burr. R. 1734 ; Brandon v. Nes- 
 bill, 6 Term R. 1823 ; Puffendorf, de Jure Nat. et Gent. Lib. 8, cap. 7, 
 ^ 14, and Barbeyrac's note ; Vattel, B. 3 ch. 16, ^ 264. 
 
 2 See Antoine v. Morshead, 9 Taunt. R. 237 ; Daubuz v. Morshead, 6 
 Taunt. R. 332. See also, Duhammel v. Pickering, 2 Stark. R. 90 ; Bay- 
 ley on Bills, ch. 2, § 9, p. 76, 76 (5th edit. 1830.) 
 
CH. IV.] COMPETENCY OF PARTIES. 127 
 
 This class of laws may be presumed to stand upon the 
 general ground of an implied license from both go- 
 vernments ; and it does not differ, in its principles, from 
 another class of cases, where there is an express 
 license for the trade with the enemy, which exempts 
 the party and the transactions from the taint of ille- 
 gality, at least so far as concerns his own country, 
 where the contract is to be enforced.^ 
 
 § 103. But there is no necessary incompatibility of 
 duties, or obligations arising from a state of war, to 
 prevent a subject of a neutral ' country, being in the 
 enemy's country, making or indorsing a Promissory 
 Note, or from there drawing, or indorsing, or accepting, 
 a Bill of Exchange, in favor of one of his fellow sub- 
 jects, or of another neutral ; for, in such a case, if the 
 transaction is hand fide, and for neutral or legal objects, 
 there is no principle upon which it ought to be held 
 invalid.^ A state of war does not suspend the rights 
 of commerce between neutrals, or the general obliga- 
 tions of contracts between persons, who are, in no just 
 sense whatever, parties to the war, or acting in violation 
 of the duties growing out of it. 
 
 § 104. And here, again, the principle would seem 
 to apply, that, although a Promissory Note or a Bill of 
 Exchange, drawn, indorsed, or accepted, in favor of an 
 alien- enemy, may not be valid between them ; yet, as 
 between other parties to the Bill, or Note, it may have 
 complete force and obligation ; at least, if they are not 
 parties to any original, intended, illegal, use of it, or 
 have not participated in such illegal use. Thus, for 
 
 1 Potts V. Bell, 8 Term R. 548. 
 
 ' Houriet v. Morris, 3 Camp. E. 303 ; The Hoffnung, 2 Rob. R. 162 ; 
 The Cosmopolite, 4 Rob. R. 8 ; The Clio, 6 Rob. R. 67. 
 
128 BILLS OP EXCHANGE. [CH. IV. 
 
 example, if a Bill be drawn by an alien enemy upon the 
 subject or citizen of the adverse country, in favor of a 
 neutral, it will, subject to the limitation above stated, 
 be good, in favor of the neutral, against the Drawer, 
 and also against the Drawee, if he becomes the Accep- 
 tor. The same doctrine will apply to an indorsement 
 of such a Bill by an alien enemy, in favor of a neutral, 
 although it might be invalid between the original par- 
 ties, or between them and the Acceptor ; for there is 
 nothing in the character of the neutral, which prevents 
 him from receiving such a Bill, in the course of his own 
 negotiations, or which deprives him of his ordinary cha- 
 racter, or of his persona standi in judicio, to enforce the 
 obligations created thereby, between him, and the other 
 persons, with whom he is dealing. Similar consider- 
 ations will apply to cases of Promissory Notes, mutatis 
 
 § 105. It need scarcely be added, tha,t the disability 
 of alien enemies to contract with each other during the 
 war, is not a doctrine, founded in the peculiar munici- 
 pal jurisprudence of England and America ; but that it 
 has its original and confirmation in the Laws of Na- 
 tions, and is approved by the liiost eminent Publicists, 
 such as Grotius, and Puffendorf, and Vattel, and Byn- 
 kershoek.i The same exceptions of cases of positive 
 moral necessity, such as cases of ransom, are also recog- 
 nized, as belonging to the general doctrine, upon the 
 ground stated by Vattel, that, when, by the accidents 
 of war, a subject is placed in the hands of his enemy, 
 
 1 Grotius, de Jure Bell. et. Pae. Lib. 3, ch, 23, § 5 ; Puffendorf, de Jure 
 Nat. & Gent. Lib. 8, ch. 7 ; 14 Vattel, B. 3. ch. 16, § 264 ; Bynk. Ques, 
 Pub. Jur. B. 1, ch. 3 ; Heinecc. Exerc. 30, De Jur. Frinc. circa Commerc. 
 § 13, Tom. 2, Pars 3, p. 98 (edk. Genev. 1766.) 
 
CH. IV.] COMPETENCY OP PARTIES. 129 
 
 SO that he can neither receive his own sovereign's 
 orders, nor enjoy his protection, he resumes his natural 
 rights, and is to provide for his own safety by any just 
 and honorable means. And hence, he adds, if that sub- 
 ject has promised a sum for his ransom, the sovereign, 
 so fiir from having a power to discharge him from his 
 promise, should oblige him to perform it.' 
 
 § 106. Fourthly. As to persons insane, or imbecile 
 in ihind. A few words will suffice upon the disability 
 of all persons, in this predicament, to bind themselves 
 as Drawers, Indorsers, or Acceptors of Bills of Ex- 
 change.2 This disability flows from the most obvious 
 principles of natural justice. Every contract presup- 
 poses, that it is founded in the free and voluntary con- 
 sent of each of the parties, upon a valuable consider- 
 ation, and after a deliberate knowledge of its character 
 and obligation. Neither of these predicaments can pro- 
 perly belong to a lunatic, an idiot, or other person, iwn 
 compos mentis, from age, or imbecility, or personal infirm- 
 ity. Hence, it is a rule, not merely of municipal law, 
 but of universal law, that the contracts of all such per- 
 sons are utterly void.^ The Roman law, in expressive 
 terms, adopted this doctrine. Furiosus nullum negotium 
 gerere potest, quia non intelligit, quod agit* 
 
 1 Vatlel, B. 2, ch. 16, S 264 ; Griswold v. Waddington, 16 Johns. R. 
 451. 
 
 2 See Baxter v. Ld. Portsmouth, 5 B. & Cressw. 170 ; 2 Black. Comm. 
 291, 292; Pitt v. Smith, 2 Camp. R. 33, 34 ; Chitty on Bills, ch. 2, § 1, 
 p. 21 (8th edit. 1830) ; Brown «. Joddrell, 3 Carr. & Payne, 30 ; Sentance 
 V. Poole, 3 Carr. & Payne, 1 ; Peaslee v. Robbins, 3 Mete. R. 164. 
 
 3 Puffendorf, Law of Nat. & Nat. B. 3, ch. 6, ^ 3, and Barbeyrac's note ; 
 Grotius, de Jure Bell, et Pac. Lib. 2, ch. 11, § 4, 5 ; 1 Fonbl. Eq. B. 1, 
 ch. 2, §•!, and note (a) ; Id. § 3 ; 1 Story, Eq. Jurisp. § 222 ; Ersk. Inst. 
 B. 3, tit. 1, ^ 16 ; 1 Bell, Comm. B. 2, Pt. 2, ch. 8, p. 132 ; Id. B. 3, Pt. 
 1, ch. 1, p. 294, 295 (5th edit.) 
 
 4 Inst. Lib. 3, tit. 20, § 8; Dig. Lib. 50, tit. 17, 1. 5, 40, 124. 
 
130 BILLS OF EXCHANGE. [CH. V. 
 
 CHAPTER V. 
 
 EIGHTS, DUTIES, AND OBLIGATIONS OF PARTIES TO BILLS 
 OP EXCHANGE. 
 
 § 107. We come, in the next place, in the order of 
 our subject, to the consideration of the rights, duties, 
 and obligations of the parties to Bills of Exchange. 
 And, first, the rights, duties, and obligations of the 
 Drawer. The drawing of a Bill of Exchange implies, 
 on the part of the Drawer, an undertaking lo the 
 Payee, and to every other person, to whom the Bill 
 may afterwards be transferred, that the Drawee is a 
 person capable of making himself responsible for the 
 due payment thereof; that he shall, upon due present- 
 ment, if applied to for the purpose, express, in writing, 
 upon the face of the Bill, an acceptance, or undertak- 
 ing to pay the same, when it shall become payable ; 
 that he, the Acceptor, shall pay the same, when it be- 
 comes payable, upon due presentment thereof for that 
 purpose ; and that, if the Drawee shall not accept it, 
 when so presented, or shall not so pay it, when it be- 
 comes payable, and the Payee, or other Holder, shall 
 give him, the Drawer, due notice thereof, then he will 
 pay the sum or amount, stated in the Bill, to the 
 Payee, or other Holder, together with such damages, 
 as the law prescribes or allows in such cases, as an in- 
 demnity.^ Where a Bill is drawn, payable to the 
 Bearer, similar obligations arise, on the part of the 
 
 1 See Bayley on Bills, ch. 1, § 15, p. 43 (5th edit. 1830.) See Fotbier 
 de Change, n. 58 to 71 ; Heinecc. de Camb. cap. 4, ^ 23 to 25. 
 
CH. v.] EIGHTS AND DUTIES OF PAETIES. 131 
 
 Drawer, as if it were payable to order ; for the Bearer, 
 if he is the original party, to whom it is delivered, is 
 to be treated as a Payee ; and if he is a subsequent 
 Holder, he succeeds to all the right of a Holder under 
 the Payee. 
 
 § 108. Secondly. As to the rights, duties, and obli- 
 gations of the Payee and Indorser. So long as the 
 Bill remains in the ownership and possession of the 
 Payee, his undertaking is limited to the mere duty of 
 presenting the Bill for acceptance and payment within 
 the proper time, and of giving notice of the refusal of 
 the Drawee to accept, or to pay the Bill, to the Drawer 
 within the time prescribed by law ; on failure of either 
 of which, the Drawer is exonerated from all liability on 
 the Bill.' But, as soon as the Payee indorses the Bill, 
 his undertaking assumes a much broader character and 
 extent. The indorsement of a Bill by the Payee, or 
 by any subsequent Holder implies an undertaking from 
 the Payee or other Indorser, to the person, in whose 
 favor it is made, and to every other person, to whom 
 the Bill may afterwards be transferred, exactly similar 
 to that, which is implied on the part of the Drawer, by 
 drawing the Bill.^ Precisely the same doctrine is laid 
 down by Pothier, as recognized in the French law.^ In 
 respect to the obligations bf the Indorser to the person, 
 
 1 See Bayley on Bills, ch. 7, § 1, p. 217 (5th edit. 1830) ; Id. ch. 9, p. 
 363 to 370 ; Chitty on Bills, ch. 5, p. 200 to 204 (8th edit. 1833) ; Id. ch. 
 6, p. 266, 267 ; Camidge v. Allenby, 6 Barn. & Cressw. 373, 382, 383 ; 
 Bolton V. Richard, 6 Term E. 139. 
 
 s Bayley on Bills, ch. 5, § 3, p. 169 ; Chitty on Bills, ch. 6, p. 264 to 
 267 (8th edit. 1833) ; Ballingalls v. Gloster, 3 East, 483 ; Van Staphorst 
 V. Pearce, 4 Mass. R. 258. 
 
 8 Pothier de Change, n. 79. 
 
132 BILLS OP EXCHANGE. [CH. V, 
 
 to whom he transfers the Bill, it makes no difference, 
 whether the Bill be originally negotiable, or not.i 
 
 § 109. Where a Bill is payable to the Bearer, or, 
 being payable to the Payee or order, it is indorsed in 
 blank, and afterwards is transferred by the Holder by 
 mere delivery thereof, without any indorsement, such 
 Holder is not responsible thereon to the immediate 
 party, to whom he delivers the same, or to any subse- 
 quent Holder, upon the dishonor thereof; for no person, 
 whose name is not on the Bill, as a party thereto, is liar 
 ble on the Bill, and he cannot be deemed to undertake 
 any of the obligations of a Drawer or Indorser.® By 
 not indorsing it, he is generally understood to mean 
 that he will not be responsible upon it.^ If, indeed, he 
 undertakes to guarantee the payment of the Bill upon 
 such delivery or transfer, he may be liable upon such 
 special contract ; ^ but that is collateral to the obliga- 
 tions created by the Bill, and is ordinarily limited to 
 the immediate parties thereto.^ In like manner, if the 
 Bill, in such a case, is received by the party, to whom it 
 is delivered, as conditional payment of a precedent debt 
 due to him, or as a conditional satisfaction for any other 
 valuable consideration, then paid by him, the Holder, 
 who delivered it, will, if the Bill be duly presented and 
 dishonored, and due notice thereof be given to him, be re- 
 
 1 Chitty on Bills, ch.6, p. 267 (8th edit. 1833) ; Hill v. Lewis, 1 Salk. 
 132. » 
 
 2 See Bayley on Bills, ch. 9, p. 368, 369 (5th edit. 1830) ; Ghitty on 
 Bills, ch. 5, p. 197, 200, 201 (8th edit. 1833); Id. ch. 6, p. 262, 269 to 
 
 73. 
 
 3 Fenn v. Harrison, 3 Term R. 750. 
 
 4 Chitty on Bills, ch. 16, p. 269, 270, 272 (8th edit. 1833) ; Morris v. 
 Stacey, Holt, N. P. R. 153. 
 
 6 Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833) ; In the matter 
 of Barrington & Barton, 2 Sch. & Lefr. 112. 
 
CH. v.] EIGHTS and' DUTIES OF PAETIES. 133 
 
 sponsible to pay back the full amount of the precedent 
 debt, or yaluable consideration, although not directly 
 suable as a party to the Bill.^ On the other hand, the 
 party, receiving the same, is bound, under such circum- 
 stances, to make due presentment of the Bill, &nd to give 
 due notice of the dishonor; otherwise, by his laches, he 
 makes the Bill his own, and discharges the party, from 
 whom he received it, from all liability for any loss 
 sustained thereby.^ But this Ave shall presently have oc- 
 casion to state in more general terms. 
 
 1 Chitty on Bills, ch. 5, p. 200 to 203 (8th edit. 1833) ; Id. p. 268 lo 271 ; 
 Bayley on Bills, ch. 9, p. 363 to 368 (5th edit. 1830) ; Ex parte Black- 
 burn, 10 Ves. 209 ; Owenson v. Morse, 7 Term R. 64 ; Brown v. Kewley, 
 2 Bos. & Pull. 518,; Ward v. Evans, 3 Ld. Raym. 928 ; Puckford v.-Max- 
 well, 6 Term R. 52 ; Tapley v. Martens, 8 Term. R. 451 ; Robinson v. 
 Read, 9 Barn. & Cressw. 449 ; Emly «. Lye, 16 East, R. 13; Ex parte 
 Dickson, cited 6 Term R. 142. 
 
 2 Ibid. — In Bayley on Bills, ch. 5, § 3, p. 169 (5th edit. 1830,) it is 
 said ; " And a transfer, by delivery only, if made on account of an ante- 
 cedent debt, implies a similar undertaking, from the party making it, to 
 the person in vfhose favor it is made." That is, an undertaking similar to 
 that of an Indorser, or Drawer, pf a Bill. But this is manifestly incorrect. 
 Mr. Chitty in his Sth edit. 1833, quite as inaccurately stated the same 
 position ; but afterward immediately corrected it in his text ; and stated, 
 what is now the well conside;:ed and established doctrine. In his 9th 
 edit. 1840, he says ; " It has been said, that a transfer by mere delivery, 
 without any indorsement, when made on account of a preexisting debt, 
 or for a valuable consideration, passing to the Assignor, at the time of the 
 assignment, (and not merely by way of sale or exchange of paper,) as 
 where goods are sold to him, imposes an obligation on the person making 
 it to the immediate person, in whose favor it is made, equivalent to that of 
 a transfer by formal indorsement. But this expression seems incorrect ; 
 for the party, transferring only by delivery, can never be sued upon the 
 instrument, either as if he were an Indorser, or as having guaranteed its 
 payment, unless he expressly did so. The expression should be, ' that, if 
 the instrument should be dishonored, the transferrer, in such case, is liable 
 to pay the debt, in respect of which he transferred it, provided it has been 
 presented for payment in due time, and that due notice be given to him, of 
 the dishonor.' A distinction was once taken between the transfer of a 
 Bill, or Check, for a precedent debt, and for a debt arising at the time of 
 
 B. OF EX.' 12 
 
134 BILLS OF EXCHANGE. [CH. V. 
 
 § 110. Another engagement, implied in every in- 
 dorsement, on the part of the Indorser, is, that all the 
 antecedent parties upon the Bill, whether Drawers or 
 Indorsers, are persons having competent authority to 
 draw and indorse the same ; that the Indorser has, in 
 virtue thereof, a good title to the Bill ; and that he has 
 a right to convey the same by his indorsement, and ac- 
 cording to the tenor thereof. If any of the antecedent 
 parties have acted by an agent by procuration, the in- 
 dorsement imports, that such agent has due authority so 
 to act, at least, unless the other circumstances of the 
 case repel that conclusion.^ 
 
 the transfer; and it was held, that,. if A. bought goods of B., and, at the 
 same time, gave him a draft on a Banker, which B. took, without any ob- 
 jection, it would amount to payment by A., and B. could not resort to 
 him, in the event of a failure of the Banker. But it is now settled, that, 
 in such case, unless it was expressly agreed, at the time of the transfer, 
 that the Assignee should take the instrument assigned, as payment, and 
 run the risk of its being paid, he may, in case of default of payment by the 
 Drawee, maintain an action against the Assignor, on the consideration of 
 the transfer. And, where a debtor, in payment of goods, gives an order to 
 pay the Bearer the amount in Bills on London, and the party takes Bills 
 for the amount, he will not, unless guilty of laches, discharge the original 
 debtor." Chitty on Bills, ch. 6, p. 268, 269 (8th edit. 1833) ; Id. p. 1, 
 ch. 6, § 244 (9th edit.) ; Camidge v. Allenby, 6 Barn. & Cressw. 373. 
 
 1 Mr. Chitty seems to think otherwise ; but I think, that the authorities 
 cited by him, do not support him. His language is; "It has been con- 
 tended, that an indorsement is equivalent to a warranty, that the prior in- 
 dorsements were made by persons having competent authority. But the 
 Court seemed to deny that doctrine; and, though an indorsement admits 
 all prior indorsements to have been, in fact, duly made, yet an Indorser, by 
 his indorsement, merely engages, that the Drawee will pay, or, that he, 
 the Indorser, will, oti his default, and due notice thereof, pay the same, 
 and which is the extent and limit of his implied contract." Chitty on 
 Bills, ch. 6, p. 266 (8th edit. 1833.) He cites East India Company v. 
 Tritton, 3 Barn. & Cressw. 280, and the opinion of Chambre, J., in Smith 
 V. Mercer, 6 Taunt. R. 83. The former case was decided upon an inde- 
 pendent ground, that the party accepted the Bill, with a knowledge of 
 what the agent's authority was, and mistook its legal effect. The latter 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 135 
 
 § 111. There is yet another engagement, which is 
 implied in every indorsement, on the part of the In- 
 dorsee It is, that the instrument, which he indorses, is 
 a genuine instrument, and not forged ; that the signature 
 of the Drawer, and also, of the antecedent Indorsers, are 
 genuine ; and that he, the Indorser, has a good right to 
 transfer the same to the immediate Indorsee.' The 
 . same doctrine, as to the genuineness of the Bill, equally 
 applies, where a Bill is payable to Bearer, and is passed 
 by delivery to a third person, for a valuable consider- 
 ation ; for, in such a case, there is an implied under- 
 taking of the party, passing the same, to the immediate 
 Holder under him, that the Bill is genuine.^ In each 
 
 turned upon the point, that the Bill was paid by the plaintiff, as agent of 
 the supposed Acceptor, whose acceptance was forged ; and both parties 
 were equally innocent; and the plaintiff's name was not on the Bill. In 
 Bayley on Bills, ch. 5, p. 170 (5th edit. 1833,) it is laid down, that " An 
 indorsement is no warranty that the prior indorsements are genuine." 
 But, for this position, the sole reliance is on the case of East India Com- 
 pany V. Tritton. In the case of Jones v. Ryde, 5 Taunt. R. 488, there 
 was a forgery, by altering the Bill from £800 to £1800. The Court held 
 that the plaintiff, who had sold the Bill as one for £1800, and who had 
 paid the amount of the difference to his Vendee (£1000,) was entitled to 
 recover, from his own Vendor, the like amount. In Lambert v. Pack, 1 
 Salk. 137 ; Crichlow v. Parry, 2 Camp. 185 ; Free v. Hawkings, Holt, N. 
 P. R. 550, it was decided that an indorsement admitted the signatures of 
 the Drawer and other Indorsers. If so, does it not necessarily admit the 
 genuineness thereof? See Chitfy on Bills, Pt. 2, ch. 6, p. 635, 636 (8th 
 edit. 1833.) In the French law, Pardessus says, that the Indorser war- 
 rants, with the other persons, whose names are on the Bill, the genuine- 
 ness of the Bill (la v6ritfe de la Leltre.) Pardessus," Droit Comm. Tom. 
 2, art. 347.' 
 
 1 Bayley on Bills, ch. 5, § 3, p. 170 (5th edit. 1830) ; Chitty on Bills, ch. 
 6, p. 269, 270 (8th edit. 1833) ; Jones v. Ryde, 5 Taunt. R. 488 ; Bruce 
 u. Bruce, 1 Marsh. E. 165. But see what is said by Bayley and Little- 
 dale, Js., in East India Company v. Tritton, 3 Barn. & Cressw. 289 to 
 291 ; Post, § 225, 262. 
 
 2 Bayley on Bills, ch. 5, ^ 3, p. 170 (5th edit. 1830) ; Chitty on Bills, 
 ch. 6, p. 269 to 271 (8th edit. 1833) ; Markle v. Hatfield, 2 Jolms. R. 255 ; 
 
136 - BILLS OF EXCHANGE. [CH. V. 
 
 case, however, the presumption may be repelled by cir- 
 cumstances ; as, by showing, that the Bill was taken 
 under an express or implied agreement, that the Holder 
 should take it at his own risk.^ 
 
 § 112. Thirdly. As to the rights, duties, and obliga- 
 tions of the Indorsee, Receiver, or other Holder, of a 
 Bill of Exchange. The receipt of a Bill implies an 
 undertaking, on the part of the Indorsee, Receiver, or 
 other Holder, to every other party to the Bill, who 
 would be bound to pay it, and would be entitled to 
 bring an action on paying it, to present it in proper 
 time, when necessary, for acceptance, and at maturity 
 for payment ; to allow no extra time, and grant no 
 indulgence for payment ; to give notice without delay 
 to every such party of a failure in the attempt to pro- 
 cure acceptance or payment ; and to take all the proper 
 steps, (such as making a protest,) and do all the proper 
 acts required by law upon such dishonor, to verify and 
 
 Eagle Bank of New Haven v. Smith, 5 Conn. R. 71 ; Young v. Adams, 6 
 Mass. R. 182 ; Jones v. Ryde, 5 Taunt. R. 488 ; Bruce v. Bruce, 1 Marsh. 
 R. 165 ; Wilkinson v. Johnson, 3 Barn. & Cressw. 428. 
 
 1 Ibid. ; Bayley on Bills, ch. 9, p. 364 to 366 ; Id. ch. 9, p. 396 to 410 
 (2d Amer. edit. 1836,) and Notes of the Editors. — If a Bill be passed, 
 by delivery merely, by a person, Miho knows that the parties thereto are 
 insolvent, and he conceals the fact from the person, to whom he passes it, 
 it will be treated as a fraud upon the latter ; and the consideration may he 
 recovered back again. Chitty on Bills, ch. 6, p. 271 (8th edit. 1833) ; 
 Camidge v. AUenby, 6 Barn. & Cressw. 373, 382. But, if both the per- 
 son who passes, and the person who receives, the Bill, are equally ig- 
 norant, that the parties are, at the time, insolvent, and equally innocent, 
 the question may then arise, as to which is to bear the loss. Mr. Chitty 
 inclines to think, that the loss must be borne by the person who passes the 
 Bill, if it has been passed by way of discount, and not by way of sale. 
 But he puts a quaere to the statement. Chitty, ubi supra, p. 271. This 
 point does not appear to have been directly decided. But see Beeching v. 
 Gower, Holt's N. P. R. 313, and Camidge u. AUenby, 6 Barn. & Cressw. 
 372, 383, 384 ; Post, ^ 225, 425. 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 137 
 
 establish the same.' A default in any of these respects 
 will discharge the party in respect to whom there has 
 been any such default, and who otherwise would be 
 bound to pay the same, from all responsibility on ac- 
 count of the non-acceptance, or non-payment, of the 
 Bill, and will operate as a satisfaction of any debt or 
 demand for which it was given.® The French law 
 includes obligations of nearly a similar import, although 
 not in all respects identical.^ 
 
 § 113. Fourthly. As to the rights, duties, and obli- 
 gations of an Acceptor. Art acceptance admits the 
 genuineness of the signature, and the competence of 
 the Drawer of the Bill.* It imports an engagement 
 upon the part of the Acceptor to the Payee or other 
 lawful Holder thereof to pay the Bill according to the 
 tenor of the acceptance when it becomes due upon due 
 presentment thereof.® In some cases, also, the Drawee, 
 or Acceptor, may incur obligations to the Drawer, not 
 only to accept the Bill, but also to pay it at maturity. 
 Thus, if he has agreed to accept the Bill, whether he 
 has funds or not, and it is drawn on the faith thereof, 
 and afterwards he refuses to accept it, or if, having 
 accepted, he refuses at its maturity to pay it, he will 
 be bound to indemnify the Drawer for all losses and 
 
 1 Bayley on Bills, ch. 7, § 1, p. 317 (5th edit. 1830) ; Id. § 2, p. 252 
 to 313 ; Heinecc. de Camb. cap. 4, ^ 26. 
 
 2 Ibid. 
 
 3 Pothier de Change, n. 72 to 75 ; Post, § 118, 119. 
 
 * Price V. Neale, 2 Burr. 1354 ; Bayley on Bills, ch. 8, p. 318, 319 
 (5th edit. 1830) ; Heineeo. de Camb. ch. 4, § 26 to 29 ; S. P. Bank of 
 U. S. V. Bank of Georgia, 10 W^heat. E. 333 ; Post, ^ 262 ; Saunderson 
 V. Coleman, 4 Scott, R. 638 ; Belknap v. Davis, 1 Appleton, R. 435 ; 
 Bank of Commerce v. Union Bank, 3 Comstock, 230. 
 
 5 Bayley on Bills, ch. 6, p. 171, 172 (5th edit. 1830) ; Chitty on Bills, 
 ch, 7, ^ 3, p. 307, 308 (8th edit. 1833.) 
 12* 
 
138 BILLS OF EXCHANGE. [CH. V. 
 
 expenses which he may have incurred thereby. But, 
 if the Bill be drawn without funds in the hands of the 
 Drawee, and without any such agreement to accept, 
 then the Drawer must bear all the losses and expenses . 
 incurred as well by reason of the non-acceptance as the 
 non-payment. 
 
 § 114. In all these 'cases, Heineccius has deduced 
 nearly similar obligations, as belonging to the general 
 foreign law of Exchange. Thus, he says, that the 
 Drawer (Trassans) incurs an obligation to the Payee 
 {Remittem,) and his Indorsee (^Tndosscdarius,) to pay 
 the amount, and indemnify the party, if the Bill is 
 either not ^accepted, or not paid, if the proper protest 
 is made. Deinde ipse etiam trassans ohligatur turn re- 
 mittenti, turn prcesentanti, "vel ejusdem indossatario, ad 
 restitumdam pecuniam, proRstandamque indeMnitaiem, si 
 eamUum vel acceptatum non Sit, vel non solutum ; quamvis 
 utroque casu interposita protestaiione opus sU, qua neglecta, 
 ohligatio ista omnino exspiriat} 
 
 § 115. In like manner, the Drawee (Trassatus,) by his 
 acceptance, engages to pay to the Holder, whether the 
 Payee or Indorsee, the full amount of the Bill at matu- 
 rity ; and, if he does not, the Holder has a right of 
 action against him as well as against the Drawer. 
 Trassati ohligatio ex acceptatione demum nascitur, d tunc 
 duUum non est, ilium turn a prcesentante, turn ab indossor 
 tario conveniri posse. Et quamvis in utriusque arhitrio sit, 
 adversus trassatum agere malU, an adversus trassaniem ; 
 posterius tamen vel idea plerw^que fieri solet, quia denegaia 
 cambii acceptati solutio argumentum plerumque evidentissi- 
 
 1 Heinecc. de Camb. cap. 6, ^ 4 ; Id. cap. 3, § 6. 
 
CH. v.] BIGHTS AND DUTIES OF PARTIES. 139 
 
 mum est, trassatum foro cessiirum, djam tum non amplius 
 solvmdo esse} 
 
 § 116. So, the Payee, by his indorsement of the Bill, 
 incurs the same obligations to his Indorsee as the 
 Drawer does. Is, qui cambium alicui ita cessit, ut valutam 
 a cessionario : receperit, huic omnino semper ohligatus est, 
 adeoque cessionarius vel indossatarius actionem habet adver- 
 sus indossantem ad recuperandam sortem, proxeneticum, 
 damna, et impensas, modo protestatiomm rite interposiie- 
 rit? 
 
 § 117. Ordinarily, between the Drawer and the 
 Drawee no direct obligation arises, unless under special 
 circumstances, as where the Drawee has engaged to 
 honor the Bill. Id quceritur, man trassatus - etiam a tras- 
 sante conveniri possit, si is cambium non acceptarit, ac pro- 
 inde illud una cum interposita protestatione redierit ? Id 
 quod reguhriter negatur, quia acceptaiio, ceu supra diximus, 
 est res meri arbitrii. Pauci tamen sunt casus, quibus et 
 trassatus ob cambium non honoratum potest conveniri? 
 
 1 Heinecc. de Camb. cap. 6, § 5. 
 
 2 Heinecc. de Camb. cap. 6, § 7 ; Id. cap. 3, ^ 15 to 17. 
 
 3 Heinecc. de Camb. cap. 6, § 6. — In a preceding page, Heineccias has 
 enumerated several obligations, arising between the Drawer and Drawee. 
 " Alter initur inter trassantem et eum, cui solutio injungitur. Hie vero 
 contractus vere in mandate consistit, quia acceptans, suscepto illo mandate, 
 ad solvendum, adeoque ad negotium alienum explicandum, obligatur. Ex 
 quo sequitur, (1.) Ut tertius, cui solutio iujungitur, cambium acceptare 
 invitus non teneatur ; (2.) Ut semel illo acceptato obstrictus sit ad solu- 
 tionem ; (3.) Ut hoc, tamquam mandatario, solutionem denegante, et in- 
 terposita protestatione, regressus adversus mandantem pateat; (4.) Ut 
 acceptans, tamquam ^mandatarius, fines mandati non egredi, adeoque nee 
 ante tempus, nee ante conditionem litteris expressam, nee alia moneta, 
 quam ipsi prasscriptum, solvere possit. Quandoquidem vero et mandans 
 mandataiitim indemnem prsestare tenetur ; ita facile patet ; (5.) Acceptan- 
 tem, tamquam mandatarium, soluta pecunia, refusionem ejus cum usurisa 
 trassante recte exigere, et, (6.) Ab ignotis cambia acceptare non solere, 
 nisi in antecessum sciat, quomodo sibi sine ambagibus satis fracturus sit 
 
140 BILLS OF EXCHANGE. [CH. V. 
 
 § 118. By the old French law, similar obligations, 
 with some not very important distinctions, subsist be^ 
 tween all the parties.^ Pothier says, that the Drawer 
 contracts an obligation with the Payee, and every sub- 
 sequent Indorsee, to pay him damages and interest, in 
 case of default of payment of the Bill, at maturity and 
 due protest, or, at the election of the Payee or Indorsee, 
 to restore the amount given for the Bill ; and this he 
 founds upon the rule of the Roman law : Id veniet, non 
 ut reddas, quod aeceperis, sed ut dammeris mihi quanti 
 interest mea illud, de quo convenit acdpere ; vel si meum 
 recipere velim, repetatur, quod datum est, quasi db rem 
 datum, re mn secutd? He adds, also, that the Drawer 
 is, in many cases, bound to furnish reexchange, of 
 which we shall hereafter speak.^ In like manner, the 
 Payee or Indorsee contracts an obligation on his part, 
 to the Drawer, to present the Bill for payment at ma- 
 turity, and, if payment is 'refused, to protest the Bill, 
 and give due notice thereof to the Drawer ; in default 
 of which, the Payee is bound to indemnify the Drawer, 
 for all losses which he may have sustained, of the funds 
 drawn for.* But it seems, that the Payee is not bound 
 to present the Bill for acceptance, but only for payment, 
 at the time it becomes due, if the time of payment is 
 fixed ; ® otherwise, he ought to present it for acceptance.^ 
 
 trassans. Quo coraparatae sunt litters, quas mercatores advisorias adpel- 
 laie Solent." Heinecc. de Camb. cap. 3', ^ 11 to 13. 
 ' Pothier de Change, n. 61 to 63, 67, 69. 
 
 2 Pothier de Change, n. 60, 63, 63, 68 ; Dig. Lib. 19, art. 5, 1. 5, ^ 1 ; 
 Pothier, Pand. Lib. 19, art. 5, n. 5 ; Pardessus, Droit Comm. Tom. 1, art. 
 375. 
 
 3 Pothier de Change, n. 64, 
 * Pothier de Change, n. 74. 
 
 5 Pothier de Change, n. 75. 
 
 6 Pardessus, Droit Comm. Tom. 2, art. 358. 
 
CH. v.] EIGHTS AND DUTIES OF PAKTIES. 141 
 
 § 119. As between tte Payee and the Indorsee, the 
 indorsement creates the like obligation, as exists be- 
 tween the Drawer and Payee ; and, indeed, in such 
 a case, the Payee, and every subsequent Indorser, be- 
 comes a Drawer.^ As between the Drawer and the 
 Drawee, the Bill creates only the obligation of a man- 
 date to pay money, — mandatum solvmdce pecunice, — 
 which may arise, either from an express contract to 
 accept, or from one implied by law, as where the 
 Drawee is the Banker of the Drawer, and has funds 
 in his hands. Under such circumstances, he is bound 
 to accept and pay the Bill ; otherwise he will be com- 
 pellable to indemnify the Drawer for any loss sustain- 
 ed by his refusal.^ And, on the other hand, the Drawer 
 is bound to indemnify the Drawee, for , his acceptance 
 and payment of the Bill, if he has not funds, in his 
 hands, or the Drawer has failed to furnish thetn, at 
 the maturity of the Bill.^ As between the Payee and 
 every subsequent Indorsee or Holder, the Acceptor 
 contracts an obligation, by his acceptance, to pay the 
 Bill, at maturity, according to the tenor thereof; and 
 this obligation he incurs conjointly and in solido with 
 the Drawer.^ 
 
 § 120. Such are some of the principal obligations 
 created by the old Freuch law, between the various 
 parties to a Bill. The modern Code of Commerce has 
 expressed all these obligations in a few words. It de- 
 
 ' Pothiei de Change, n. 79. 
 
 ^ Pothier de Change, n. 91, 93 to 95 ; Pardessus, Droit Comm. Tom. 2, 
 art. 361, 379. 
 
 3 Pothier de Change, n. 97, 98 ; Pardessus, Droit Comm. Tom, 2, art. 
 379, 380. 
 
 * Pothier de Change, n. 115 to 117 ;_ Pardessus, Droit Comm. Tom. 2, 
 art. 376. 
 
142 BILLS OF EXCHANGE, [CH. V. 
 
 Clares; "All those, who have signed, accepted, or 
 indorsed a Bill of Exchange, are jointly and severally 
 bound, as sureties to the Holder." ^ " The Drawer and 
 Indorsers of a Bill of Exchange are joint and several 
 sureties for the acceptance and payment of the Bill at 
 maturity." ® 
 
 § 121. Such are the ordinary engagements between 
 the various parties to a Bill of Exchange, according to 
 our law, and to the general foreign Commercial law. 
 [It has been remarked by an able judge, in an elaborate 
 opinion, that Ij^e Drawer and Acceptor are parties to the 
 same instrument, as contractors with each other, and 
 not as joint contractors with a third person, and that by 
 the indorsement of the Bill, independent and different 
 contracts arise with the Indorsees on the respective parts 
 of the Drawer and the Acceptor. The latter is primarily 
 and absolutely liable to pay the Bill, according to its 
 tenor. The Drawers are liable only upon the contin- 
 gencies of the default of the Acceptor or Drawee, and of 
 the performance by the holder of certain conditions pre- 
 cedent, such as, presenting the Bill according to its 
 tenor and giving due notice of the failure of the Ac- 
 ceptor or Drawee to pay, upon a proper presentment.]* 
 But, in certain cases, according to the custom of mer- 
 chants, adopted into Commercial law, third persons, 
 who are mere strangers, may sometimes intervene, and 
 make themselves parties to the Bill, and incur respon- 
 sibilities, as well as acquire rights thereby. This takes 
 
 1 Code de Coram, art. 140; Locr6, Esprit de Coram, ait. 140, Tom. 1, 
 p. 444. 
 
 2 Code de Coram, art. 118; Locr6, Esprit de Coram. Tom. 1, art. 118, 
 p. 385. 
 
 3 Jones V. Broadhurst, 9 Manning, Grange, & Scott 181, Cresswell, J. 
 
CH. v.] EIOHTS AND DUTIES OF PARTIES. 143 
 
 place in the ordinary case of what is called an accept- 
 ance for the honor of one or more, or all the parties to 
 a Bill. An acceptance is seldom made, until after the 
 Bill is drawn ; and, if, when it is presented for accept- 
 ance, the Drawee refuses to accept the same, or has 
 absconded, or cannot he found, or is incapable of mak- 
 ing himself responsible, and the Bill is, thereupon, (as 
 it should be,) ' protested by the Holder, any stranger 
 may, by the Law Merchant, intervene, and accept the 
 Bill, for the honor of the Drawer, or of the Indorsers, 
 or of the Drawee, or of any, or all of them ; and this is 
 called an acceptance supra protest, for thd honor of the 
 party, or parties.* The like proceeding may take place, 
 where the Drawee is insolvent, and the Holder protests 
 the Bill for better security ; ^ or, where the Bill, after 
 acceptance, is not paid at maturity, and is protested for 
 non-payment.'* 
 
 § 122. The policy of the rule, granting the privi- 
 leges to the Acceptor supra protest, is, to induce the 
 friends of the Drawer or Indorser to render them this 
 service, for the benefit of commerce, and the credit of 
 
 1 Beawes, Lex Merc, by Chitty, Vol. 1, p. 568, § 38 (edit. 1813) ; Kyd 
 on Bills, p. 153 (3d edit.) Bayley on Bills, ch. 6, § 1,-p. 177, 180 (5th 
 edit. 1830) ; 3 Kent, Comm. Lect. 44, p. 87, 88 (4th edit.) ; 1 Bell, Comm. 
 B. 3, ch. 2, § 4, p. 424 (5th edit.) 
 
 2 Kyd on Bills, p. 153 to 155 (3d edit.); Bayley on Bills, ch. 6, § 1, p. 
 177 to 180 (5th edit. 1830) ; Chitty on Bills, ch. 2, p. 30 (8th edit. 1833) ; 
 Id. ch. 8, § 2, 3, p. 374 to 383 ; Beawes, Lex Merc, by Chitty, Vol. 1, 
 p. 568 to 570, § 34 to 60 (edit. 1813) ; Molloy, B. 2, ch. 10, § 33 ; 3 Kent, 
 Coram. Lect. 44, p. 87 (4th edit.); Heinecc. de Camb. cap. 2, § 10; 
 Davis V. Clarke, 6 Adolph. & Ellis, N. S. 16. 
 
 8 Ibid. ; Ex parte Wackerbarth, 5 Ves. 574 ; Ex parte Lambert, 13 Ves. 
 179; Molloy, B. 2, ch. 10, §32. 
 
 * Ibid. ; Brunetti v. Lewin, 1 Lutw. R. 896, 899, a,. ; Hoare v. Caze- 
 nove, 16 East, R. 391 ; Maligna, Lex Merc. 273 ; Molloy, B. 2, ch. 10, § 
 24 ; Bayley on Bills, ch. 6, § 1, p. 179 (5th edit. 1830.) 
 
144 BILLS OF EXCHANGE. [CH. V. 
 
 the trader ; and a third person interposes, only, when 
 the Drawe6 will not accept. There can be no other 
 Acceptor, after a general acceptance by the Drawee. 
 A third person may become liable on his collateral un- 
 dertaking, as guaranteeing the credit of the Drawee ; 
 but he will not be liable in the character of Acceptor. 
 It is said, however, that, when the Bill has been ac- 
 cepted supra protest, for the honor of one party to the 
 Bill, it may, by another individual, be accepted supra 
 protest, for the honor of another. The Holder is not 
 bound to take an acceptance supra protest ; but he 
 would be bound to accept an offer to pay supra protest. 
 The protest is necessary, and should precede the col- 
 lateral acceptance, or payment; and, if the Bill, on its 
 face directs a resort to a third person, in case of refusal 
 by the Drawee, such direction becomes part of the con- 
 tract.1 
 
 § 123. The acceptance of a Bill supra protest, hx nou- 
 acceptance, imports an obligation, on the part of the 
 Acceptor, that, if the Bill is not paid by the Drawee, 
 upon due presentment, at its maturity, and it is then 
 duly protested for non-payment, and due notice thereof 
 is given to the Acceptor supra protest, he Avill pay the 
 same. Such presentment, protest^ and notice are, there- 
 fore, indispensable requisites, to make the liability of 
 such an Acceptor absolute.^ An acceptance supra pro- 
 
 1 3 Kent, Comm. Lect. 44, p. 87 (4lh edit.) and the authorities there 
 ■cited ; Mitford v. Walcot, 11 Mod. R. 410 ; Beawes, Lex Mere, by Chittjr, 
 p. 568, 569, PI. 40 to 43 (edit. 1813) ; Jackson v. Hudson, 1 Camp. R. 
 447; Pothier de Change, n. 170, 171. 
 
 2 Bayley on Bills, ch. 6, § l,p. 176 to 179 (5th edit. 1830) ; Chittyon 
 Bills, ch. 8, § 3, p. 375, 383 (8th edit. 1833) ; Hoare v. Cazenove, 16 
 East, 391 ; Williams v. Jermaine, 7 Barn. & Cressw. 468 ; 3 Kent, Comm. 
 Lect. 44, p. 87 (4th edit.) ; Mitford v. Walcot, 1 Ld. Eaym. 574 ; Post, 
 ^261. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES. 145 
 
 test enures for the benefit of all the parties on the Bill, 
 subsequent to the person, for whose honor it is accept- 
 ed.^ Thus, if the acceptance be for the honor of the 
 Drawer, it enures to the benefit of the Payee, and all 
 subsequent Indorsers and Holders under him.^ If ac- 
 cepted for the honor of the first, second, or third Indor- 
 ser, it enures for the benefit of all subsequent Indorsers 
 or Holders under them, accordingly ; but not for the 
 benefit of antecedent Indorsers or Holders. If accept- 
 ed for the honor of the Bill, that is, of all the parties on 
 the Bill, (as it may be,) then, of course, it enures to the 
 benefit of all the parties, except the Drawer.^ If ac- 
 cepted for the honor of the Drawee, then it enures, or, 
 at least, it may enure, for the benefit of the Drawer, as 
 well as of . the Payee and subsequent Holders, if the 
 Drawer was entitled to have the Bill accepted by the 
 Drawee. 
 
 § 124. On the other hand, the Acceptor supra protest, 
 upon giving proper notice thereof, and a due payment 
 of the Bill, has his own rights and recourse over against 
 the person or persons, for whose honor he accepted the 
 same, and against all other parties to the Bill, who are 
 liable to the same person or persons.* But he has no 
 recourse over against any other parties to the Bill. 
 
 1 Ibid. 
 
 2 Bayley on Bills, ch. 6, § I, p. 176 to 178 (5th edit. 1830) ; Chitty 
 on Bills, ch. 8, § 3, p. 374, 383 (8th edit. 1833) ; Kyd on Bills, p. 152 to 155 
 (3d edit.) 
 
 3 Chitty on Bills, ch. 8, § 3, p. 383 (8th edit. 1833.) 
 
 4 Bayley on Bills, ch. 6, § 1, p. 179, 180 (5th edit. 1830) ; Chitty on 
 Bills, ch. 8, p. 382, 383 (8th edit. 1833) ; Beawes, Lex Merc, by Chitty, 
 Vol. 1, p. 569, § 44 (edit. 1813) ; 3 Kent, Comm. Lect. 44, p. 87 (4th 
 edit.) ; Konig v. Bayard, 1 Peters, E. 250 ; Mertens v. Winnington, 1 Esp. 
 R. 113 ; Goodhall v. Polhill, 1 Manning, Granger & Scott, 233. In Mer- 
 tens «. Winnington (1 Esp. K. 113,) LordKenyon said, that an Acceptor, 
 supra protest, " is to be considered as an Indorsee, paying a full value for 
 
 B. OF EX. 13 
 
146 BILLS OF EXCHANGE. [CH. V. 
 
 Hence, if he accepts for the honor of the Drawer, he has 
 no remedy against the Payee, or any subsequent In- 
 dorser j nor, if he accepts for the honor of the Payee, 
 will he have any against the subsequent Indorsers.^ If 
 he accepts for the honor of the Bill, generally, (that is, 
 of all the parties thereto,) he has a remedy against all 
 of them, except the Holder at the time of the accept- 
 ance.^ It follows also, from what has been said, that an 
 acceptance for the honor of the Drawer only, will, or at 
 least may, under particular circumstances, entitle the 
 Acceptor to the same remedy against the Drawee, which 
 the Drawer himself would have.' 
 
 § 125. Similar principles are recognized in the fo- 
 reign Commercial law, as to the rights and remedies 
 growing out of acceptances supra protest* In the 
 French law, it is called an Intervention, on the part of 
 the stranger, who accepts for the honor of any of the 
 antecedent parties ; and he thus performs the functions, 
 and contracts the engagements, and acquires the rights, 
 of the negotwrwm gestor of the Civil Law.® Heineccius 
 
 the Bill, and, as such, entitled to all the remedies to which an Indorsee 
 would be entitled, that is, to sue all the parties to the Bill." This is too 
 loosely and generally said ; for the Acceptor has no remedy against the 
 Holder, from whom he received it, nor against any Indorser upon the 
 Bill, whose name is subsequent to that of the person, for whom be ac- 
 cepts it. 
 
 1 Ibid. 
 
 a Ibid. 
 
 3 Ibid. ; Ex parte Wackerbarth, 5 Ves. 574 ; Ex parte Lambert, 13 Ves. 
 174. 
 
 4 See Straccha de Mercat. Decis. Genuse. p. 133. 
 
 5 Pothier de Change, n. 113, 114, 170, 171 ; Story onAgency, § 142; 
 Dig. Lib. 3, tit. 5, I. 10, ^ 1 ; Id. 1. 45 ; Pothier, Pand. Lib. 3, tit. 5, 
 n. 1 to 14; Pothier, Trait6 de Quasi Contr. Negot. Gest. passim; L'Ord. 
 1673, tit. 5, art. 3 ; Jousse, sur L'Ord. 1673, p. 75 ; Pardessus, Droit Comm. 
 Tom. 2, art. 383 to 388 ; Code de Comm. art. 126 to 128 ; Hoare w. 
 Cazenove, 16 East, B. 391. 
 
CH. v.] RIGHTS AND DUTIES. OP PARTIES. 147 
 
 aflSrms the like doctrine. Qui in honorem irassantis 10- 
 teras cambiales ad se non diredas acceptavit, perinde, ac ipse 
 trassatus, tenetur. Sine iidegrum est prcBsentardi, adversus 
 eum, si cpmtituto die non solverU, actione cambiali experiri. 
 Contra ea et hie, prcestita soMwne, agit adversus trassantem 
 ad reeuperandam summam solutam, una cum provisione, 
 damnis, et impensis. Quum in finem hcec acceptatio non 
 aliter fieri solet, qmm sopra protesto.^ The rights of the 
 Acceptor, swpra protest, upon his intervention, stand upon 
 the general maxim ; Qui alterius jure utitur eodum jure 
 vii debet — He stands subrogated to the rights of the 
 Holder^ 
 
 § 126. A Bill is, in the technical phrase, said to be 
 honored, when it is duly accepted ; when it becomes 
 payable, by lapse of time, it is said to have arrived at 
 maturity ; and, when acceptance or payment thereof is 
 refused, it is said to be dishonored. These general con- 
 siderations may suffice, in the present place. We shall, 
 hereafter, have occasion to examine, in what manner, 
 and by whom, a Bill may be transferred ; when, and in 
 what manner, a Bill should be presented for acceptance; 
 what is a good and proper acceptance thereof; at what 
 time a Bill becomes due and payable, and in what man- 
 ner, and at what time and place, it is to be presented 
 for payment ; what will amount to a dishonor thereof, 
 and the proceedings thereon ; when, and in what man- 
 ner, notice of the dishonor is to be given to the Drawee ; 
 and what conduct or agreement of the parties will 
 amount to a waiver, or dispensation, with a strict com^ 
 pliance with any of these requisites, or vary or limit 
 
 ' Heinecc. de Camb. cap. 6, ^ 9, p, 54 ; Id. cap. 3, ^ 10 ; Id. cap. 3, 
 ^ 10. 
 2 Pothier de Change, n. 114. 
 
148 BILLS OF EXCHANGE. [CH. V. 
 
 the ordinary obligations deducible from the contract, as 
 well as many other incidental topics. At present, we 
 shall confine our attention to some particulars, which 
 seem proper to be introduced in this connexion. 
 
 § 127. In the first place, from what has been already 
 stated, we see the reason, why the Drawer, upon a Bill 
 made payable to an infant, or his order, is held liable, 
 by our law, to pay the same to any person, to whom the 
 infant may indorse the g^ame, notwithstanding his in- 
 fancy ; for the Drawer has, in effect, by making it pay- 
 able to the infant, or his order, affirmed, that the infant 
 is competent to indorse, the Bill, and that he himself 
 will pay it to the Holder, if dishonored, upon due notice 
 thereof; and, therefore, he will be estopped, in law, to 
 escape from his engagement, by attempting to interpose 
 the infancy of the Payee, in bar of the rights of the 
 Holder.^ Besides ; infancy is a personal privilege, be- 
 longing to the infant himself; and he alone can avail 
 himself of it as a defence.^ His indorsement is not 
 void, but voidable only.^ The same rule, for the same 
 reason, applies to the case of an acceptance, by the 
 Drawee, of the Bill of an infant, who is the Drawer.^ 
 
 § 128. The same doctrine has not, however, been 
 supposed in - our law to apply to the case of a Bill of 
 Exchange, made payable to a married woman, or her 
 order ; for, in such a case, the interest in the Bill vests 
 in her husband, and he may indorse it ; and the in- 
 
 ' Chitty on Bills, ch.2, § l,p. 27 (8th edit. 1833) ; Grey v. Cooper, 3 
 Doug. R. 65. See, also, Pardessas, Droit Comm. Tom. 3, ait. 413. 
 
 2 Ibid. ; Bruce v. Warwick, 6 Taunt. R. 119. 
 
 3 Ibid. ; Bayley on Bills, cli. 2, § 2, p. 45, 46 (5th edit. 1830.) 
 
 * Taylor v. Croker, 4 Esp. R. 187 ; Jones v. Daroh, 4 Price, R. 300 ; 
 Hallifax V. Lyle, 3 Welsby, Hurlstone, & Gordon, 446. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES, 149 
 
 dorsement of the wife at least, if done without his con- 
 sent, is inoperative and void.' The reason for this 
 distinction seems' to be, that the drawer cannot, by his 
 act, clothe the wife with a capacity to indorse, which 
 the law prohibits; for it would operate as a fraud upon 
 the marital rights of the husband ; and, in the case of 
 an infant, the indorsement is voidable, and not like that 
 of a married woman, utterly void.^ We have already 
 seen, that, by the foreign law, infants and married 
 women, when they are merchants, may become parties 
 to, and be bound by, BUls of Exchange under certain 
 circumstances ; and, therefore, the like principles may 
 not apply in that law, as do in ours.^ 
 
 § 129. But, passing from these incidental topics, let 
 us proceed in the next place to the consideration of the 
 operation of the Lex Loci upon contracts of Exchange. 
 It is well known, that the laws of different countries 
 vary as to the rights, obligations, and duties arising 
 from Bills of Exchange ; and, therefore, it is highly 
 important to inquire, by what laws in particular cases 
 those rights, obligations, and duties are to be ascer- 
 tained and governed. And here it may be laid down 
 as a general rule, that every contract is, as to its vali- 
 
 1 Ante, § 90, 92 ; Barlow v. Bishop, 1 East, R. 432 ; Prestwiok v. Mar- 
 shall, 4 Cair. & Payne, 594 ; Arnould v. Revoult, 1 Brod. & Bing. 446, 
 per Richardson, J. ; Cofes v. Davis, 1 Camp. R. 485 ; Haley v. Lane, 
 2 Atk. 181 ; Chitty on Bills, ch. 2, § 1, p. 26, 27 ; Id. ch, 6, p. 225 (8th 
 edit. 1833); Kyd on Bills, p. 31 (3d edit.); Philliskirk v. Pluckwell, 
 2 M. & Selw. 393 ; MoNeilage v. Holloway, 2 B. & Aid. 28 ; Burrougji 
 V. Moss, 10 B. & Cressw. 558 ; Nightingale v. Withington, 15 Mass. R. 
 272. 
 
 2 Bayley on Bills, ch. 2, § 2, p. 45, 46 (5th edit.) ; Barlow v. Bishop, 
 1 East, K. 432 ; Cotes v. Davis, 1 Camp. R. 485 ; Nightingale v. With- 
 ington, 15 Mass, R. 272 ; Mason v. Morgan, 2 Adolph. & Ellis, SO. 
 
 3 Ante, § 73, 94. 
 
 13* 
 
150 BILLS OP EXCHANGE. [CH. V. 
 
 dity, nature, interpretation, and effect, governed by the 
 law of the state, or country, where it is made, and is to 
 be executed.' If it is made in one place to be exe- 
 cuted in another country or territory, then it is go- 
 verned by the law of the country or territory where it 
 is to be executed ; for the parties are presumed to look 
 to that for its validity, interpretation, and effect.^ Both 
 rules are fairly deducible from the Civil Law ; where 
 it is said, in one passage, 8i fundus venierit, ex consuetvr 
 dine ejus regionis, in qua negotium gesium est, pro evictione 
 eaveri oporiei;^ and, in another passage; Contraxisse 
 unusquisque in eo hcb intelligitur, in quo, ut solver et, se oh- 
 ligavit;^ and, again, in another passage; Contractum 
 autem non utique eo loco intelligiiur, quo negotium gestum sit, 
 sed quo solvenda est pecunia? Paul Voet has accordingly 
 expounded this as the- general doctrine. Quid si de lit- 
 teris canibii incidat qucestio, Quis locus erit spectandus ? Is 
 spectandus est locus, ad quern sunt destinatce, et ibidem ac- 
 ceptatcB.^ 
 
 § 130. Without going into a particular examination 
 of the grounds upon which this doctrine is founded, it 
 
 1 Story on Conflict of Laws, ^ 342 to 244, 266 to 270 ; Bayley on Bills, 
 by Phillips & Sewall, chap. A. (edit. 1S36,) p. 78. 
 
 2 Story on Conflict of Laws, § 242 to 244, 266, 270 ; Robinson v. 
 Bland, 2 Burr. 1077. — This subject is examined at large, in Story on the 
 Conflict of Laws, ch. 8, from § 231 to 373, and in Burge, Comm. on Col. 
 and Foreign Law, Vol. 1, Pt. 1, ch. 1, p. 23, 24, 29 ; Id. Vol. 3, Pt. 3, 
 ch. 22. p. 749 to 780 ; and Fcelix, Conflict des Lois, Kevue Etr. & Franc. 
 Tom. 7 (1840), § 39 to 51, p. 344 to 365. 
 
 3 Dig. Lib. 21, tit. 2, 1. 6 ; Pothier, Pand. Lib. 21, tit. 2, n. 7 ; Story, 
 Conflict of Laws, ^ 233. 
 
 * Dig. Lib. 44, tit. 7, 1. 21 ; Pothier, Pand. Lib. 5, tit. 1, n. 36 ; Story, 
 Conflict of Laws, § 233. 
 
 5 Dig. Lib. 42, tit. 5, 1. 3 ; Po(hier, Pand. Lib. 42, tit. 5, n. 24 ; Story 
 on Conflict of Laws, § 233, n. 2. 
 
 6 P. Voet de Stat. \ 9, cap. 2, § 14 ; Story on Conflict of Laws, § 286. 
 
CH. v.] EIGHTS AND DUTIES OP PARTIES. 151 
 
 might seem sufficient, in this place, to explain it by a 
 reference to the common cases of contracts growing out 
 of negotiable instruments. Where a Bill of Exchange 
 is an inland Bill, drawn, indorsed, and accepted, in the 
 same country, it is sufficiently. obvious, that it is of 
 course governed, as to all the" parties, by the Lex Loci 
 contractus. But, where the Bill is a foreign Bill, drawn 
 in one state or country, payable to a particular person, 
 living in the same state or country, or his order, upon 
 a Drawee, who resides in a foreign state or country, 
 and it is afterwards indorsed by the Payee, to a third 
 person, in another state or country, very different con- 
 siderations may arise. 
 
 § 131. In respect to foreign, Bills of Exchange, they 
 are generally, as to their validity, nature, interpreta- 
 tion, and effects, governed by the laws of the state or 
 country where the contract between the particular par- 
 ties has its origin. The contract of the Drawer is, as 
 to the form, the nature, the obligation, and the effect 
 thereof, governed by the law of the place, where the 
 Bill is drawn, in regard to the Payee, and any sub- 
 sequent Holder. The contract of the, Indorser is go- 
 verned by the law of the place where the indorsement 
 is made,' as to his Indorsee, and every subsequent 
 Holder. The contract of the Acceptor is governed by 
 the law of the place of his acceptance, as to the Drawer, 
 the Payee, and every subsequent Holder,^ unless he 
 accepts in one place, payable in another place ; for, in 
 the latter case, the law of the place,. where the Bill is 
 payable, will govern in regard to the same parties.^ 
 
 1 Story on Conflict of Laws, § 286. 
 
 2 Cooper V. Earl of Waldegrave, 2 Beavan, R. 283. 
 
152 ■ BILLS OB. EXCHANGE. [CH. V. 
 
 So that very different contracts, of very different 
 natures and of various obligations, may arise between 
 different parties, under one and the same Bill of Ex- 
 change, according to the place where the particular 
 transaction takes place. 
 
 § 132. But, as this subject is becoming of more im- 
 portance every day in the commercial world, it may be 
 well to expound somewhat at large, the leading prin- 
 ciples applicable to this subject, and to illustrate some 
 of their practical bearings, in cases of negotiable instru- 
 ments.' In the first place, then, as to the validity of 
 contracts. Generally speaking, the validity of a con- 
 tract is to be decided by the law of the place where it 
 is made. If valid there, it is by the general law of 
 nations, jure gerdiwm, held valid everywhere, by the 
 tacit or implied consent of the parties.^ The rule is 
 
 1 I have drawn these illustrations, almost literally, from Story on the 
 Conflict of Laws, in the sections cited at the bottom of the page. The 
 passages thus introduced seemed to me indispensable to a complete review 
 of the doctrines applicable to negotiable instruments ; and I was unwilling 
 that the reader should be required to read another work before he could 
 possess himself of the main 'elements belonging to this interesting branch 
 of commercial law, especially' as'-thfe passages are to be found scattered in 
 different parts of the above work< , My &im has been, at the expense of 
 some repetition, to' make each of, my works as complete as practicable in 
 itself. I have been induced the more readily to do this, since Mr. Baron 
 Bayley's work on Bills contains no examination whatever of the subject, 
 and Mr. Chitty ,has treated it in a, very brief and summary manner. Chitty 
 on Bills, ch. 5, p. 143, 147, 148, 191 to 194, 339, 372, 506, 613. 
 
 2 Story on Conflict of Laws, ^ 242 ; Pearsall v. Dwight, 2 Mass. R. 
 88, 89. See Casaregis, Disc. 179, ^ 1, 2; Willing v. Consequa, 1 Peters, 
 R. 317 ; 2 Kent, Comm. Lect. 39, p. 457, 458 (3d edit.) ; De Sobry v. 
 De Laistre, 2 Harr. & Johns. R. 193, 221, 238 ; Smith v. Mead, 3 Con- 
 nect. R. 253 ; Medbury v. Hopkins, 3 Connect. R. 472 ; Houghton v. 
 Page, 2 N. Hamp. R. 42 ; Dyer v. Hunt, 5 N. Hamp. R. 401 ; Etskine's 
 Inst. B. 3, tit. 2, ^ 39, 40, 41, p. 514 to p. 516 ; Trimbey v. Vignier, 
 I Bing. New Cas. 151, 159 ; S. C, 4 Moore & Scott, 695 ; Andrews ». 
 Pond, 13 Peters, R. 65 ; Andrews v. His Creditors, II Louis, R. 465 ; 
 
CH. v.] RIGHTS AND DUTIES OP PARTIES. 153 
 
 founded not merely in the convenience, but in the 
 iiecessities of nations ; for, otherwise, it would be im- 
 practicable for them to carry on an extensive inter- 
 course and commerce with each other. The whole 
 system of agencies, of purchases and sales, of mutual 
 credits, and of transfers of negotiable instruments, rests 
 on this foundation ; and the nation which should refuse 
 to- acknowledge the common principles, would soon find 
 its whole commercial intercourse reduced to a state like 
 that in which it now exists among savage tribes, among 
 the barbarous nations of Sumatra, and among other 
 portions of Asia, washed by the Pacific. Jus aut&m 
 gentium (says the Institute of Justinian) omni liumaw 
 generi commune est ; nam, usu exigente, et humanis necessi- 
 tatibus, gentes humance Jura qucedem sihi consiittierunt. Et 
 ex hox jure gentium, omnes pene contractus introducti sunt, 
 ut emptio et vendUio, hcatio et conductio, societas, depositum, 
 mutuum, et alii innumeraUles} No more forcible applica- 
 tion can be propounded of this imperial doctrine, than 
 to the subject of international private contracts.^ In 
 thisj as a general principle, there seems a universal con- 
 sent of all courts and all jurists, foreign and domestic.^ 
 
 Story on Conflict of Laws, § 316 a ,• Bayley on Bills, oh. (A) (5th edit.) 
 by F. Bayley, p. 78; Id. Amer. Edit, by Phillips & Sewall, 1836, p. 78 
 to 86 ; 1 Burge, Comment, on Col. and For. Law, Pt. 1, ch. 1, p. 29, 30 ; 
 Whister v. Stodder, 8 Martin, R. 95 ; Bank of U. States v. Donally, 
 8 Peters, R. 361, 372 ; Wilcox v. Hunt, 13 Peters, R, 378, 379. 
 
 1 1 Inst. Lib. 1, tit. 2, § 2. 
 
 2 2 Kent, Comm. Lect. 39, p. 454, 455, and note (3d edit.) ; 10 Toul- 
 lier, art. 80, note ; Pardessus, Droit Comm. Vol. 5, art. 1483 ; Charters 
 V. Cairnes, 16 Mar,tin, R. 1. 
 
 3 The cases which support this doctrine are so numerous, that it would 
 be a tedious task to enumerate them. They may generally be found col- 
 lected in the Digests of the English and American Reports, under the 
 head of Foreign Law, or Lex Loci. The principal part of them are col- 
 
154 BILLS OP EXCHANGE. [CH. V. 
 
 § 133. Illustrations of this general doctrine may be 
 derived from cases, which have actually occurred in 
 judgment. Thus, for example, "where a Bill of Exchange 
 was made and indorsed in blank, in France, and the 
 Holder afterwards sued the Maker, in England, a ques- 
 tion arose, whether, upon such an indorsement, in blank, 
 without following the formalities prescribed by the Civil 
 Code of France, the indorsement passed the right of 
 property to the Holder ; and it being found, that it did 
 not, by the law of France, the Court held, that no re- 
 covery could be had, by the Holder, upon the note, in 
 an English Court. The Court on that occasion said, 
 that the question, as to the transfer, was a question of 
 the true interpretation of the contract, and was, there- 
 fore, to be governed by the law of France, where the 
 contract and indorsement were made.^ 
 
 § 134. The same rule applies, vice versd, to the invali- 
 dity of contracts ; if void, or illegal by the law of the 
 place of the contract, they are, generally, held void and 
 
 lected in 4 Cowen, R. 510, note ; and in 3 Kent, Comm. Lect. 39, p. 457 
 etseq. in the notes. See, also, Fonblanque on Eq. B. 5, ch. 1,^6, note 
 {t) p. 443 ; Bracket v. Noiton, 4 Connect. R. 517 ; Medbury v. Hopkins, 
 3 Connect. R. 472 ; Smith v. Mead, 3 Connect. R. 253 ; De Sobry u. 
 De Laistre, 2 Harr. & Johns. R. 193, 221, 228 ; Trasher u. Everhart, 
 3 Gill & Johns. R. 234. The foreign jurists are equally full, as any one 
 will find, upon examining the most celebrated of every nation. They all 
 follow the doctrine of Dumoulin. "In concernentibus contractibus, et 
 emergentibus tempore contractus, inspici debet locus, in quo contrahitur." 
 Molin. Comment, ad Consuet. Paris, tit. 1, § 12, Gloss. 7, n. 37, Tom. 1, 
 p. 224 ; Story on Conflict of Laws, § 260, 300 d. See Bouhier, ch. 21, 
 ^ 190; 2 Boullenois, Obserr. 46, p. 458. Lord Brougham, in Warren- 
 der V. Warrender, 9 Bligh, R. 110, made some striking remarks on this 
 subject, cited in Story on Conflict of Laws, § 226 b, note. 
 
 1 Story on Conflict of Laws, § 242 a ; Trimbey v. Vignier, 1 Bing. New 
 Cases, 151, 169 ; Story on Conflict of Laws, § 267, 370. 
 
CH. v.] EIGHTS AND DUTIES OP PAETIES. 155 
 
 illegal everywhere/ This would seem to be a principle 
 derived from the very elements of natural justice. The 
 Code has expounded it in strong terms. Nullum enim 
 pactum, nuUam conventionem, nullum cofdradum, inter eos 
 videri volumus sub-semtum, qui cordrahunt; lege contrahere 
 prohibei%te? If void in its origin, it seems difficult to 
 find any principle, upon which any subsequent validity 
 can be given to it in any other country. 
 
 § 135. But there is an exception to the rule, as to 
 the universal validity of contracts, which is, that no 
 nation is bound to recognize or enforce any contracts, 
 which are injurious to its own interests, or to those o f 
 its own subjects.^ Huberus has expressed it in the fol- 
 lowing terms ; Quatenus nihil potestati aut juri alterius 
 Imperantis ejusque civium prcBj'udicetur ; '^ and Mr. Justice 
 Martin still more clearly expresses it, in saying, that 
 the exception applies to cases, in which the contract is 
 immoral or unjust, or in which the enforcing it in a state 
 would be injurious to the rights, the interests, or the 
 
 1 Story on Conflict of Laws, ^ 343; Huberus, Lib. 1, tit. 3, De Confl, 
 Leg. §3,5; Van Keimsdyk v. Kane, I Gallis. R. 375 ; Pearsall v. Dwight, 
 2 Mass. R. 88, 89 ; Touro v. Cassin, 1 Nott & McCord, R. 173 ; De 
 Sobry v. De Laistre, 2 Harr. & John. R. 193, 231, 225 ; Houghton v. 
 Page, 2 N. Hamp. R. 42 ; Dyer v. Hunt, 5 N. Hamp. R. 401 ; Van 
 Schaick v. Edwards, 2 Johns. Cas. 335 ; Robinson v. Bland, 2 Burr. R. 
 1077 ; Burrows v. Jemino, 2 Str. 732 ; Alves v. Hodgson, 7 T. R. 237 ; 2 
 Kent, Coram. Lect. 39, p. 457, 438 (3d edit.) ; La Jeune Eugenie, 2 
 Mason, R. 459 ; Andrews v. Pond, 13 Peters, R. 65, 78. 
 
 2 Cod. Lib. l.tit. 14, 1. 5. 
 
 3 Story on Conflict of Laws, § 244 ; Greenwood v. Curtis, 6 Mass. R. 
 378, 379 ; Blanchard v. Russell, 13 Mass. R. 1, 6 ; Whiston v. Stodder, 
 8 Martin, R. 95 ; De Sobry v. De Laistre, 2 Harr. & John. R. 193, 228 ; 
 Trasher v. Everhart, 3 Gill. & John. R. 234 ; 3 Burge, Coram, on Col. 
 and For. Law, Pt. 2, ch. 20, p. 779 ; Story, Confl. of Laws, § 348 to 351 ; 
 Andrews v. Pond, 13 Peters, R. 65, 78. 
 
 4 Huberus, Lib. 1, tit. 3, De Confl. Leg. § 2. 
 
156 BILLS OF EXCHANaE. [CH. V. 
 
 convenience, of such state, or its citizens.^ This excep- 
 tion results from the consideration, that the authority 
 of the acts, and contracts done in other states, as well as 
 the laws, by which they are regulated, are not, propria 
 vigore, of any efficacy beyond the territories of that 
 state J and whatever effect is attributed to them else- 
 where, is from comity, and not of strict right.^ And 
 every independent community will and ought to judge 
 for itself, how far, that comity ought to extend.^ The 
 reasonable limitation is, that it, shall not suffer prejudice 
 by its comity.* This doctrine has been, on many occa- 
 sions, recognized by the , Supreme Court of Louisiana. 
 On a recent occasion, it was said by the Court ; " By the 
 comity of nations, a practice has been adopted, by which 
 courts of justice examine into, and enforce, contracts 
 made in other states, and carry them into effect, accord- 
 ing to the laws of the place, where the transaction took 
 its rise. This practice has become so general in modern 
 times, that it may be almost stated to be now a rule of 
 international law, and it is subject only to the excep- 
 tion, that the contract, to which aid is required, should 
 not, either in itself, or in the means used to give it ef- 
 fect, work an injury to the inhabitants of the country, 
 where it is attempted to be enforced." ^ Mr. Justice 
 Best (afterwards Lord Wynford,) on another occasion, 
 
 1 Whiston V. Stodder, 8 Martin, R. 95, 97. 
 
 a Story, Confl. of Laws, § 7, 8, 18, 20, 33, 23, 36. 
 
 3 Ibid. 
 
 * Story, Confl. of Laws, § 25, 27, 29 ; Huberus, Lib. 1, tit. 3, De Con- 
 flict. Leg. § 2, 3, 5 ; Trasher v. Everhart, 3 Gill & Johns. R. 234 ; Green- 
 wood V. Curtis, 6 Mass. R. 378 ; 2 Kent, Comm. Leot. 39, p. 457 
 (4th edit.) ; Pearsall v. Dwighf, 2 Mass. R. 88, 89 ; Eunomus, Dial. 3, 
 §67. 
 
 5 Mr. Justice Porter, in Ohio Insur. Company v. Edmondson, 5 Louis. 
 B. 295, 299, 300. 
 
OH. 
 
 v.] RIGHTS AND DUTIES OF PARTIES. 157 
 
 with great force, said, That, ia cases turning upon the 
 comity of nations, ( Comitas inter communitates,) it is a 
 maxim, that the comity cannot prevail in cases where 
 it violates the law of our own country or the law of 
 nature, or the law of God.^ Contracts, therefore, which 
 are in evasion or fraud of the laws of a country, or of 
 the rights or duties of its subjects ; contracts against 
 good morals, or against religion, or against public rights, 
 and contracts opposed to the national policy or national 
 institutions, are deemed nullities in every country af- 
 fected by such considerations ; although they may be 
 valid by the laws of the place where they are made. 
 
 § 136. Indeed, a broader principle might be adopted ; 
 and it is to be regretted that it has not been universally 
 adopted by all nations in respect to foreign contracts, 
 as it has been in respect to domestic contracts, that no 
 man ought to be heard in a court of justice, to enforce 
 a contract, founded in, or arising out of, moral or politi- 
 cal turpitude, or in fraud of the just rights of any fo- 
 reign nation whatsoever.^ The Roman law contains an 
 affirmation of this wholesome doctrine. Pacta, quce 
 contra leges constUutionesque, vel contra lonos mores finnt, 
 nullam vim habere, induhitati Juris est? Pacta, quce tur- 
 pem causam continent, non suni olservanda^ Unfortunately, 
 from a very questionable subserviency to mere commer- 
 cial gains, it has become an established formulary of 
 
 1 Forbes v. Cochrane, 2 Barn. & Cressw. R. 448, 471. 
 
 2 Story on Conflict of Laws, § 245 ; Armstrong v. Toler, 11 Wheat. R. 
 258, 260 ; Chitty on Bills (8th edit. 1833,) p. 143, note ; Boucher v. Law- 
 son, Cas. Temp. Hard. 84, 89, 194; Planehe v. Fletcher, Doug. R. 250; 
 Story, Confl. of Laws, § 255, 257. 
 
 3 1 Cod. Lib. 2, tit. 3, 1. 6. 
 
 * Dig. Lib. 2, tit. 14, 1. 27, ^ 4. See also, 1 Chitty on Comm. and 
 Manuf. ch. 4, p. 82, 83. 
 
 B. or EX. 14 
 
158 BILLS OF EXCHANGE. [CH. V. 
 
 the jurisprudence of the Common Law, that no nation 
 will regard or enforce the revenue laws of any other 
 country ; and that the contracts of its own subjects, 
 made to evade or defraud the laws or just rights of 
 foreign nations, may he enforced in its own tribunals.' 
 Sound morals would seem to point to a very different 
 conclusion. Pothier has (as we shall presently see) re- 
 probated the doctrine in strong terms, as inconsistent 
 with good faith, and the just duties of nations to each 
 other.^ 
 
 § 137. Another rule, naturally flowing from, or rather 
 illustrative of, that already stated, respecting the vali- 
 dity of contracts, is, that all the formalities, proofs, or 
 authentications of them, which are required by the Lex 
 hci, are indispensable to their validity everywhere else.^ 
 And this is in precise conformity to the rule laid down 
 on the subject by Boullenois.* Ilfaut, par rapport h la 
 forme intnns^que et constitutive des actes, suivre encore la 
 hi die conirat. Quand la Loi exige certaines formalitis, les- 
 queles sont attacMes aux chases mtmes, il faut suivre la loi 
 
 1 See Boucher B.Lawson, Cas. Temp. Hard. 45, 89, 194 ; Story, Confl. 
 of Laws, § 256, 267. 
 
 2 Story, Confl. of Laws, § 257. 
 
 3 See Story on Conflict of Laws, ^ 260; 1 Burge, Comment, on For. 
 and Col. Law, Pt. 1, ch. I, p. 29, 30 ; 3 Burge, Coram. Pt. 2, ch. 20, p. 
 752 to 764 ; FceIix, Conflict des Lois, Revue Etrang. et Fran^. Tom. 7, 
 1840, \ 40 to 51, p. 346 to 360 ; Warrender v. Warrender, 9 Bligh. Ill ; 
 Story on Conflict of Laws, % 260 a. 
 
 4 Erslj. Inst. B. 3, tit. 2, § 39 to 41, p. 514, 515: BouUenois, Quest. 
 Mixt. p. 5 ; Bouhier, Cout. de Bourg. ch. 21, § 205 ; 2 BouUenois, Observ. 
 46, p. 467; Story on Conflict of Laws, ^ 240 ; 1 Hertii Op. De Collis. 
 Leg. \ 4, n. 59 (edit. 1737) ; Id. p. 209 (edit. 1716.) See, also, Voet, ad 
 Pand. Lib. 5, tit. 1, ^ 51 ; 1 BouUenois, Observ. 23, p. 523 ; Id. p. 446 to 
 466 ; Henry on Foreign Law, 37, 38 ; Id. 224 ; 5 Pardessus, Droit Comm. 
 art. 1485 ; Mr. Justice Martin, in Depau i). Humphreys, 20 Martin, R. 1, 
 22 ; Story on Conflict of Laws, § 122, 259 J, 299 a. 
 
» 
 
 CH. v.] RIGHTS AND DUTIES OP PARTIES. 159 
 
 de la situation} Burgundus has expressed the same 
 doctrine in very pointed terms. Et quidem in scriptura 
 instnimenti, in solemnitatibiis, et ceremoniis, et generaliter in 
 omnibus, qua ad formam ejusqice perfectionem pertinent, 
 spedanda est consuetudo regionis, uhi fit negotiatio? Du- 
 moulin says ; Aut statuium loquitur de his, qua concernunt 
 nudam ordinationem vel solemnitatem actus ; et semper in- 
 spicitur statutum vel consuetudinem hei, uhi actus celebratur, 
 sive in contractibus, sive in judidis, sive in testamentis, sive 
 in instrumentis, dut aliis conficiendis? And again ; In con- 
 cernentibus contradum, et emergentihus, spectatur locus, in 
 quo contrahitur; et in concernentibiis merani solemnitatem 
 cujuscunque actus, hcus, in quo ille celebratur!^ Casaregis 
 says ; Communissima enim est distindio, quod aut disseritur 
 de modo procedendi in judicio, aut dejurihus contractus, cui 
 rohur et specialis forma tributa est a statuto, vel a contra- 
 hentibus. Et in prima casu attendendum sit statutum hci, in 
 quo judicium dgitaiur ; in secundo, vero, casu attendatur 
 statutum hci, in quo fuit celebratus contractus? Plertius 
 is still more direct. Si Lex adui formam dot, inspi- 
 ciendus est locus actus, non domicilii, non rei sitce ; id est, si 
 de solemnibus qUmratur, si de loco, de tempore, de modo 
 actus, ejus loci habenda est ratio, ubi actus sive negotium cel- 
 ebratur!^ Christinseus, Bverhardus, and other distin- 
 
 ' 2 Boullenois, Observ. 46, p. 467 ; Story on Conflict of Laws, § 240 ; 
 
 1 Boullenois, Observ. 23, p. 491, 492. 
 
 2 Burgundus, Tract, 4, n. 7, 29 ; Story on Conflict of Laws, § 300 a; 
 
 2 Boullenois, Observ. 46, p. 450, 451. 
 
 3 Molin. Opera, Comment. Cod. Lib. 1, tit. 4, 1. 1 ; Conclus. de Statut. 
 Tom. 3, p. 554 (edit. 1681) ; Story on Conflict of Laws, H^li 479 k. 
 
 4 Molin. Opera, tit. 1, De Fiefs, § 12, Gloss. 7, n. 37, Tom. 1 , p. 224 
 (edit. 1681.) 
 
 B Casaregis, Disc. Comm. 179, n. 59. 
 
 6 Hertii Opera, Collis. Leg. ^ 4, n. 10, p. 126 ; Id. n. 59, p. 148 (edit . 
 1737) ; Id. p. 179, 209 (edit. 1716) ; Story on Conflict of Laws, § 3, 8, 
 10, 11. See, also, Cochin, CEuvres, Tom. 1, p. 72 (4to edit.) ; Id. Tom. 
 
160 BILLS OF EXCHANGE. [CH. V. 
 
 guished jurists, adopt the same doctrine.' And this 
 rule seems fully established in the Common Law. 
 Thus, if, by the laws of a country, a contract is void 
 unless it is written on stamped paper, it ought to be 
 held void everywhere ; for, unless it be good there, it 
 can have no obligation in any other country.® It might 
 
 3, p. 26 ; Id. Tom. 5, p. 697; D'Aguesseau, CEuvres, Tom. 4, p. 637, 
 722 (4to edit.) 
 
 1 Everhard. Consil. 72, n. 11, p. 206; Id. n. 18, p. 207; Id. n. 27, p. 
 209 ; Story on Conflict of Laws, § 300 5 ; Christin. Decis. 283, Vol. 1, p. 
 355, 11. 1, 4, 5, 8 to 11 ; Story on Conflict of Laws, § 300 c; Molin. Com- 
 ment, ad Consuet. Paris, tit. 1, ^ 12, Gloss. 7, u. 37, Tom. 1, p. 224 ; Story 
 on Conflict of Laws, § 300 d; 2 BouUenois, Observ. 46, p. 460, 461 ; 
 Story on Conflict of Laws, § 122. — Dumoulin pushes the doctrine farther 
 and says ; " Et est omnium Doctorum sententia, ubicumque consuetudo, 
 vel statutum locale, disponit de solemnitate, vel forma actus, ligari etiam 
 exteros ibi actum ilium gerentes, et gestum esse validum, et efficacem 
 ubique, etiam super bonis soils extra territorium consuetudinis." Molin. 
 Consil. 53, § 9 ; Molin. Oper. Tom. 2, p. 965 (edit. 1681) ; 3 Surge,, 
 Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 865, 866 ; Story on Conflict 
 of Laws, § 441. 
 
 2 Alves V. Hodgson, 7 T. R. 237 ; Clegg v. Levy, 3 Camp. R. 166. But 
 see Chitty on Bills, (8th edit.), p. 143, note ; and Wynne v. Jackson, 2 
 Russell, R. 351 ; 3 Surge, Comm. on Col. and For. Law, Pt. 2, ch. 30, 
 p. 762. — The case of Wynne v. Jackson, 2 Russell, R. 351, is certainly 
 at variance with this doctrine. It was a bill, brought to stay proceedings 
 at law on a suit, brought in England by the Holder, against the Acceptor 
 . of Sills of Exchange, made and accepted in France, and which, in an ac- 
 tion brought in the French courts, had been held invalid, for want of a 
 proper French stamp. The Vice-Chancellor held, " that the circumstance 
 of the Bills being drawn in France, in such a form, that the Holder could 
 not recover on them in France, was no objection to his recovering on 
 them in an English court." This doctrine is wholly irreconcilable with 
 that in Alves v. Hodgson, 7 T. R. 251, and Clegg v. Devy, 3 Camp. R. 
 166 ; and if by the laws of France such contracts were void, if not on 
 stamped paper, it is equally unsupportable upon acknowledged principles. 
 In the case of James v. Catherwood, 3 Dowl. & Ryl. 190, where assump- 
 sit was brought for money lent in France, and unstamped paper receipts 
 were produced in proof of the loan, evidence was offered to show, that, by 
 the laws of France, such receipts required a stamp to render them valid ; 
 but it was rejected by the Court, and the receipts were admitted in evi- 
 
CH. v.] . EIGHTS AlJiTD DUTIES OF PARTIES. 161 
 
 be different, if the contract had been made payable in 
 another country ; or, if the objection were, not to the 
 validity of the contract, but merely to the admissibility 
 
 dence, upon the ground, that the courts of England could not take notice 
 of the revenue laws of a foreign country. But this is a very insufficient 
 ground, if the loan required such receipt and stamp to make it valid as a 
 contract. And, if the loan was good per se, but the stamp was requisite 
 to make the receipt good as evidence, then another question might arise, 
 whether other proof, than that required by the law of France, was admis- 
 sible of a written contract. This case also is inconsistent with the case in 
 3 Camp. R. 166. Can a contract be good in any country, which is void 
 by the law of the place where it is made, because it wants the solemnities 
 required by that law? Would a parol contract, made in England, re 
 specting an interest in lands, against the Statute of Frauds, be held valid 
 elsewhere? Would any court dispense with the written evidence required 
 upon such a contract ? On a motion for a new trial, the Court refused it, 
 Lord Chief Justice Abbott saying; " The point is too plain for argument. 
 It has been settled, or at least, considered as settled, ever since the time 
 of Lord Hardwicke, that in a British court we cannot take notice of the re- 
 venue laws of a foreign state. It would be productive of prodigious incon- 
 venience, if, in every case, in which an instrument was executed in a fo- 
 reign country, we were to receive in evidence, what the law of that coun- 
 try was, in order to ascertain whether the instrument was, or was not, 
 valid." With great submission to his Lordship, this reasoning is wholly 
 inadmissible. The law is as clearly settled, as anything can be, that a 
 contract, void by the law of the place where it is made, is void every 
 where. Yet, in every such case, whatever may be the inconvenience, 
 courts of law are bound to ascertain what the foreign law is. And it 
 would be a perfect novelty in jurisprudence to hold, that an instrument, 
 which, for want of due solemnities in the place where it was executed, 
 was void, should yet be valid in other countries. We can arrive at such a 
 conclusion only by overturning well established principles. The case al- 
 luded to, before Lord Hardwicke, was probably Boucher v. Lawson, 
 (Cases T. Hard. 85 ; Id. 194,) which was the case of a contract between 
 Englishmen, to be executed in England, to carry on a smuggling trade 
 against the laws of Portugal. Lord Hardwicke said, that such a trade 
 was not only a lawful trade in England, but very much encouraged. The 
 case is wholly distinguishable from the present case ; and from that of any 
 contract, made in a country and to be executed there, which is invalid by 
 its laws. A contract, made in Portugal by persons domiciled there, to 
 carry on smuggling against its laws, would, or ought to be, held void 
 everywhere. See, also, 3 Chitty on Comm. and Manuf. ch. 3, p. 166. 
 14* 
 
162 BILLS OF EXCHANGE. [CH. V. 
 
 of other proof of the contract in the foreign court/ 
 where a suit was brought to enforce it ; or, if the con- 
 tract concerned real or immovable property, situate in 
 another country, whose laws are different, respecting 
 which, as we shall presently see, there is a difference 
 of opinion among foreign jurists, although in England 
 and America, the rule seems firmly established, that the 
 law rei sUce, and not that of the place of the contract, is 
 to prevail.^ 
 
 § 138. So, where the forms of public instruments 
 are regulated by the laws of a country, they must be 
 strictly followed, to entitle them to be held valid else- 
 where. As, for example, if the protest of a Bill of 
 Exchange, made in another state, is required by the 
 laws of that state to be under seal, a protest, not under 
 seal, will not be regarded as evidence of the dishonor 
 of the Bill.' 
 
 § 139. Another rule, illustrative of the same general 
 principle, is that the law of the place of the contract 
 is to govern, as to the nature, the obligation, and the 
 interpretation of the contract; Loem contractus regU 
 actum^ Again; Quod si de ipso cordractu quceratur 
 
 1 Ludlow V. Van Rensselaer, 1 Johns. R. 93 ; James v. Catherwood, 3 
 Dowl. & Kyi. 190. See Clarke v. Cochran, 3 Martin, R. 358, 360, 361 ; , 
 Brown v. Thornton, 6 Adolph. & Ellis, R. 185 ; Yates u. Thomson, 3 
 Clark & Fin. R. 544. 
 
 2 Story on Conflict of Laws, § 363 to 373, 435 to 445 ; Foelix Confl. 
 des Lois, Revue Etrang. et Franj. Tom. 7, 1840, § 40 to 50, p. 346 to 
 359. 
 
 3 Story on Conflict of Laws, § 260 a ; Ticknor v. Roberts, 11 Louis. R. 
 14 ; Bank of Rochester v. Gray, 2 Hill, N. Y. R. 227 ; Savary, Le Par- 
 fait N6gociant, Tom. 1, Part 3, Liv. 1, ch. 14, p. 851 ; 2 Hill, N. Y. R. 
 227. 
 
 4 Story on Conflict of Laws, § 263 ; 1 Em6r. Assur. ch. 4, § 8, p. 122, 
 125, 138. See Casaregis, Disc. 179, § 60 ; Erskine, Inst. B. 3, tit. 2, \ 
 39, 40, p. 514, 515; Delvalle v. Plomer, 3 Camp. R. 444 ; Harrisons. 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 163 
 
 (says Paul Voet,) seu de natura ipsius, sen de Us, quce ex 
 natura coiitractus veniunt, puta, fidejussiom, etc., etiam 
 spedandum est loci statutum, uhi contractus celebrdur ; 
 quod ei contrahentes semet accommodare prcesumaniur} 
 
 Sterry, 5 Cranch, 289 ; Le Roy -o. Crowninshield, 2 Mason, R. 15 ; Van 
 Reimsdyk v. Kane, 1 Gallis. R. 371 ; 2 Kent, Comm. Lect. 37, p. 394, 
 Lect. 39, p. 458 to 460 (3d edit.) 
 
 < P. Voet, De Stat. \ 9, ch. 2, § 10, p. 269 (edit. 1737) ; Id. p. 325 
 (edit. 1661.) J. Voet is still more full on the same point. Voet, ad Pand. 
 Lib. 4, tit. 1, ^ 29, p. 240, 241. Si adversus contractuin (says he) aliudve 
 negotium gestum factumve restitutio desideretur, dum quis aut metu, aut 
 dolo, aut errore lapsus, damnum sensit contrahendo, transigendo, solvendo, 
 fidejubendo, hereditatem adeundo, aliove simili modo ; recte interpretes 
 statuisse arbitror, leges regionis in qua contractum gestumve est id, contra 
 quod restitutio petitur, locum sibi debere vindicare in terminanda ipsa resti- 
 tution's controversia, sive res illsB, de quibus contractum est, et in quibus 
 Itesio contigit, eodem in loco, sive alibi sitse sint. Nee intererit, utrum 
 Isesio circa res ipsas contigerit, veluti pluris minorisve quam sequum est, 
 errore justo distractas, an vero propter neglectasolennia in loco contractus 
 desiderata. Si tamen contractus implementum non in ipso contractus, 
 loco fieri debeat, sed ad locum alium sit destinatum, non loci contractus, 
 sed implementi leges spectandas esse ratio suadet : ut ita, secundum cujus 
 loci jura implementum accipere debuit contractus, juxta ejus etiam leges 
 resolvatur. Boullenois says, that Jurists distinguish four things in con- 
 tracts. (1.) Substantialia contractuum ; (2.) Naturalia contractuum ; 
 (3.) Accidentalia contractuum; (4.) Solemnia contractuum. He says; 
 "lis appellent substantialia contractuum, tout ce qui serf i la composition 
 int6rieure des contrats ; c'est-il-dire, tout ce qui est de I'essence deter- 
 minant la nature de chaque acte, et sans quoi il ne seroit pas un tel acte. 
 Substantialia sunt, quae ita formam et essentiam uniuscujusque actus con- 
 stituunt, ut sine iis talis actus esse non possit, cum forma dat unicuique 
 esse id, quod esf. Suivant cette dfifinition, le consentement des Parties 
 dans tous les contrats, la chose, et le prix de la chose dans un contrat de 
 vente, pertinent ad substantialia contractuum et ad speciem contractus 
 constituendam ; et elles sont tellement nficessaires, intrinseques, et con- 
 stitutives d'un contrat, que sine iis actus qui geritur, non valeat. Natura- 
 lia'contractuura, ce sont les suites et les engagements qui fluent et deri- 
 vent de la nature et de I'espece des contrats, dont il s'agit. Naturalia 
 contractuum dicuntur ea, quje pendent et manant a natura et potestate 
 oujusque actus; sed ejus formam non constituunt. Telle est la garantie 
 dans la vente. Mais par rapport k ces engagements qui dirivent des con- 
 trats, on en distingue de deux sortes. II y en a, quae sunt interna, intrin- 
 
164 BILLS OF EXCHANGE. [CH. V, 
 
 First, as to the nature of the contract ; by which is meant 
 those qualities, which properly belong to it, and by 
 
 seca et inseparabilia ; c'est-i-dire, qui sont lids et attaches h ohaque espece 
 de contrats, et qui sont propres A ehacun de ces contrats, suivant la difBr- 
 ente nature, dont ils sont. Quae natuise contractus cohasrent, et sunt veluti 
 propriae possessiones, propriaeaffeotiones ab essentialibus cujusque contractus 
 principiis enatae. Telle est, dans un central de vente, la n6cessitfe que le do- 
 mains de la chose vendue soit transftife k l'acqu6reur ; et k cet 6gard on ne 
 peutsesougtraire k ces choses ; on ne pourroit pas en effet stipuler, que 
 la domaine de la chose vendue ne passeroit pas i l'acqu6reur ; et il y en a 
 qui ne naissent que de I'u'sage ordinaire oil on est d'en convenir, et qui, k 
 raison de ce, sojit toujours pr6sum6s 6tre convenus par les Parties. Qu6b 
 ex consuetudine etiam insunt contractibus, quse consuetudo in naturara 
 quasi contractus ttapsiit ; ,et on les appelle, externa et separabilia. Telle 
 est la garantie de fait dans, une cession, et k cet6gardonpeut yd6roges,les 
 Parties peuvent stipuler qu'il n'y aura d'autre garantie que belle qu.e Ton ap- 
 pelle garantie de droit. Accidentalia contractus, ce sont les choses, que ne 
 sont point de ]a substance constitutive de I'acte, qui ne fluent et ne d6rivent 
 point de sa nature et de son espece, et ne tombent point en convention 
 ordinaire ; mais qui ne se rencontrent dans les contrats que parce que les 
 parties en conviennent. Accidentalia contractus ea sunt, quae neque sub- 
 stantiam contractuum constituunt, neque ex natura et potestate contractus 
 dimanant, sed pro voluntate contrahentium, adjici contractibus solent, veluti 
 varia pacta. Je voudrois ajouter, et encore celles, qui ne sont requises 
 que par des dispositions 16gales, k la v6rit6, mais pures locales, comme la 
 u6cessit6 de donner caution pour la garantie d'un contrat, laquelle a lieu 
 dans certains endtoits. Enfin, il y a, solemnia contractuum ; et on en 
 distingue de deux sortes, solemnia intrinseca, et solemnia extrinseca. 
 Solemnia intrinseca sunt ea, quae insunt in ipsa forma cujusque actus, neque 
 separari ab eapossunt ; telles sont les choses qui appartiennenti la peruve 
 et k r authenticity de I'acte, et qui comme telles sont partie de ce qui con- 
 stitute I'fitre et I'existence de cet acte ; aussi sont elles appellees par qnel- 
 quesuns substantialia contractuum. Solemnia extrinseca sunt ea, quae 
 aetui per se formam habenti, et ultra conventionem contrahentium, sed ad 
 ipsam conventionem roborandam, extrinsecus accedunt, et ce sont les 
 choses, qui n'appartenant en rien k la composition intrinseque de I'acte, 
 sont seulement requises, post actum originatum, pour lui procurer son 
 execution. La solemnitfe intrinseque est tellement nfecessaire, que si on 
 I'omet, I'acte n'est pas acte, il n'a nul dtre, nuUe existence ; I'omission 
 vitiat et corrumpit actum ; raison pour laquelle on la place volontiers inter 
 substantialia contractuum. Mais k l'6gard de la solemnity extrinseque, il 
 n'en est pas toujeurs de memo, aliquando obmissa impedit executionem ex 
 omni parte." 1 Boallenois, Observ. 23, p. 446 to 448. See, also, 2 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 165 
 
 law of custom always accompany it, or inhere in it." 
 Foreign jurists are accustomed to call such qualities 
 Naturalia contractus? JEa enim, quce audoritate legis vel 
 consuetudinis contractum comitantur, eidem adherent, Natu- 
 ralia a Doctorihus appellantur. Lex enim altera est quasi 
 natura, et in naturam transit. Atqiie quoad mduralia con- 
 tractuum etiam forenses statuta loci contractus observare 
 deberi? Thus, whether a contract be a personal obliga- 
 tion or a real obligation ; whether it be conditional, or 
 absolute ; whether it be the principal, or the accessary ; 
 whether it be that of principal, or of surety ; whether it 
 be of limited, or of universal operation ; these are points 
 properly belonging to the nature of the contract, and 
 are dependent upon the law and custom of the place 
 of the contract, whenever there are no express terms 
 
 Burge, Comm. on Col. and For. Law, Pt. 2 ch. 9, p. 848 to 850 ; 3 
 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 758, 759,, 762, 
 763 ; Don v. Lippman, 5 Clark & Fin. 1, 12, 13. 
 
 1 Polhier, as well as other jurists, distingnish between the essence, the 
 nature, and the accidents of contracts ; the former includes whatever is 
 indispensable to the constitution of it ; the next, whatever is included in 
 it, without being expressly mentioned by operation of law, but is capable 
 of a severance without destroying it ; and the last, those things which 
 belong to it only by expres.s agreement. Without meaning to contest the 
 propriety of this division, I am content to include the two former in the 
 single word, nature, as quite conformable to our English idiom. Cujas 
 also adopts the same course. See Pothier, Oblig. n. 5. See, also, 2 Boul- 
 lenois, Observ. 46, p. 460 to 462 ; Bayou v. Vavasseur, 10 Martin, R. 61 ; 
 Merlin, Repertoire, Convention, \ 2, n. 6, p. 357; Rodenburg, De Div. 
 Stat. tit. 2, ch. 5, § 16 ; 3 BouUenois, Obs. App'x. 50 ; 1 BouUenois, 
 Obs. 688 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 848 
 to 851. 
 
 2 1 BouUenois, Observ. 23, p. 446 ; 2 BouUenois, Ohserv. 46, p. 460, 
 461 ; Voet, De Stat. § 9, ch. 10, \ 10, p. 287 ; Id. p. 325 (edit. 1661) ; 
 Hertius, De Collis. Leg. Tom. 1, ^ 10, p. 127 ; Id. p. 179, 180 (edit. 1716) ; 
 Story on Conflict of Laws, % 263, 301 /. 
 
 3 Lauterback, Diss. 104, Pt. 3, n. 58, cited 2 BouUenois, Obs. 46, p. 
 460. 
 
166 BILLS OP EXCHANGE. [CH. V. 
 
 ia the contract itself, which otherwise control them. 
 By the law of some countries, there are certain joint 
 contracts, which bind each party for the whole, in solido ; 
 and there are other joint contracts, where the parties 
 are, under circumstances, bound only for several and 
 distinct portions.^ In each case, the law of the place 
 of the contract regulates the nature of the contract, in 
 the absence of any express stipulations.® These may, 
 therefore, be said to constitute the nature of the con- 
 tract.^ 
 
 1 4 Burge, Comment. Col. and For. Law, Pt. 2, ch. 15, § 4, p. 722 to 
 735 ; Story on Conflict of Laws, § 263, 322. 
 
 2 Pothier on Oblig. n. 261 to 268 ; Van Leeuwen Comment. B. 4, ch. 
 4, § 1; Fergussbn v. Flower, 16 Martin, E. 312 ; 2 Boullenois, Observ. 
 46, p. 463 ; Code Civil of France, art. 1197, 1202, 1220, 1222; Id. Code 
 of Coram, art. 22, 140. — One may see, how strangely learned men will 
 reason on subjects of this nature, by consulting Boullenois. He puts the' 
 case of a contract made in a country, where all parties would be bound in 
 solido, andj by the law of their own domicil, they would be entitled to the 
 benefit of a division, and vice versa; and asks, What law is to govern? In 
 each case he decides, that the law should govern, which is most favorable 
 to the debtor. " Ainsi, les obliges solidaires ontcontract6 sous une loi, qui 
 leur est favorable ; j'embrasse cette loi ; elle leur est contraire, j'embrasse 
 la loi de leur domicile." 2 Boullenois. Observ. 46, p. 463, 464. See, 
 also, Bouhier, ch. 21, § 198, 199. 
 
 3 See Henry on Foreign Law, 39. — Pothier on Obligations, n. 7, has 
 explained the meaning of the words, the nature of the contract, in the 
 following manner. " Things, which are only of the nature of the contract, 
 are those, which, without being of the essence, form a part of it, though 
 not expressly mentioned ; it being of the nature of the contract, that they 
 shall be included and understood. These things have an. intermediate 
 place between those which are of the essence of the contract, and those 
 which are merely accidental to it, and differ from both of them. They 
 diifer from those which are of the essence of the contract, inasmuch as the 
 contract may subsist without them, and they may be excluded by the 
 express agreement of the parties ; and they differ from things which 
 are merely accidental to it, inasmuch as they form a part of it without 
 heing particularly expressed, as may he illustrated by the following ex- 
 amples. In the contract of sale, the obligation of warranty, which the 
 seller contracts with the purchaser, is of the nature of the contract of sale ; 
 
CH. v.] BIGHTS AND DUTIES OP PARTIES. 167 
 
 § 140. Another illustration may be borrowed from 
 an actual decision under the Common Law. By the 
 law of England, an acceptance of a Bill of Exchange 
 binds the Acceptor to payment at all events. By the 
 law of Leghorn, if a Bill is accepted, and the Drawer 
 fails, and the Acceptor has not sufficient effects of the 
 Drawer in his hands at the time of acceptance, the 
 
 therefore the seller, by the act of sale, contracts this obligation, though 
 the parties do not express it, and there is not a word respecting it in the 
 contract ; but, as the obligation is of the nature, and not of the essence of 
 the contract of sale, the contract of sale may subsist without it ; and if it 
 is agreed, that the seller shall not be bound to warranty, such agreement 
 will be valid, and the contract will continue a real contract of sale. It is 
 also of the nature of the contract of sale, that, as soon as the contract is 
 completed by the consent of the parties, although before delivery, the 
 thing sold is at the risk of the purchaser; and that, if it happens to perish 
 without the fault of the seller, the loss falls upon the purchaser, who is, 
 notwithstanding the misfortune, liable for the price ; but, as that is only 
 of the nature, and not of the essence of the contract, the contrary may be 
 agreed upon. Where a thing is lent, to be specifically returned [commo- 
 datur,] it is of the [nature of the contract, that the borrower shall be an- 
 swerable for the slightest negligence in respect of the article lent. He 
 contracts this obligation to the lender by the very nature of the contract, 
 and without any thing being said about it. But, as this obligation is of 
 the nature, and not of the essence of the contract, it may be excluded by 
 an express agreement, that the borrower shall only be bound to act with 
 fidelity, and shall not be responsible for any accidents merely occasioned 
 by his negligence. It is also of the nature of this contract, that the loss 
 of the thing lent, when it arises from inevitable accident, falls upon the 
 lender. But, as that is of the nature, and not of the essence, of the con- 
 tract, there may be an agreement to charge the borrower with every loss 
 that may happpen until the thing is restored. A great variety of other 
 instances might be adduced from the different kinds of contracts. Those 
 things which are accidental to a contract, are such as, not being of the 
 nature of the contract, are only included in it by express agreement. For 
 instance, the allowance of a certain time for paying the money due, the 
 liberty of paying it by instalments, that of paying another thing instead of 
 it, of paying some other person than the creditor, and the like, are acci- 
 dental to the contract ; because they are not included in it, without being 
 particularly expressed." 
 
168 BILLS OP EXCHANGE. [CH. V. 
 
 acceptance becomes void. An acceptance in Leghorn 
 is governed by this latter law ; and, under such cir- 
 cumstances, it has been held void, and not obligatory 
 upon the Acceptor.^ 
 
 § 141. Secondly, the obligation of the contract, 
 which, though often confounded with, is distinguishable 
 from, its nature.^ The obligation of a contract is the 
 duty to perform it, whatever may be its nature. It 
 may be a moral obligation, or a legal obligation, or 
 both. But when we speak of obligation generally, we 
 mean legal obligation, that is, the right to performance 
 which the law confers on one party, and the corre- 
 sponding duty of performance, to which it binds the 
 other.^ This is what the French jurists call, Le lien du 
 contrat (the legal tie of the contract,) Onus conventionis, 
 and what the civilians generally call Vineulmn juris, or 
 Vinculum ohligationis.'^ The Institutes of Justinian have 
 thus defined it ; OUigatio est juris vinculum, quo necessi- 
 tate adstringimur alicujus rei solvendce, secundum iwstrce 
 civitatis jura? A contract may, in its nature, be purely 
 voluntary, and possess no legal obligation. It may be 
 a mere naked pact {nudum pactum.) It may possess a 
 legal obligation ; but the laws may limit the extent 
 and force of that obligation in personam, or in rem. It 
 
 1 Burrows v. Jemino, 2 Str. R. 733 ; 2 Eq. Abr. 526 ; Story on Con- 
 flict of Laws, § 265. 
 
 2 Story on Cpnflict of Laws, § 266; Pardessus, Droit Coram. Tom. 5, 
 art. 1495, p. 269 to 27L See 2 Boullenois, Observ. 46, p. 454, 460, 462 
 to 464 ; 3 Bufge, Coram, on Col. and For. Law, Pt. 2, ch. 20, p. 764, 
 765. 
 
 3 See 3 Story, Comm. on Constitution, ^ 1372 to 1379 ; Ogden v. 
 Saunders, 12 Wheaton, 213 ; Pothier on Oblig. art. 1, n. 1, p. 173 to 175. 
 
 4 2 Boullenois, Observ. 46, p. 458 to 460. 
 
 5 Inst. Lib. 3, tit. 14; Pothier, Pandect. Lib. 44, tit. 7, Ft. 1, art. 1, 
 ^ 1 ; Pothier, Oblig. n. 173, 174. 
 
CH. V.J EIGHTS AND DUTIES OF PARTIES. 169 
 
 may bind the party personally, but not bind bis estate ; 
 or it may bind his estate and not bind his person! The 
 obligation may be limited in its operation or duration ; 
 or it may be revocable or dissoluble in certain future 
 events, or under peculiar circumstances.-'^ 
 
 § 142. It would be easy to multiply illustrations 
 under this head.^ Suppose a contract, by the law of 
 one country, to involve no personal obligation, (as was 
 supposed to be the law of France in a particular case, 
 which came in judgment,^) but merely to confer a right 
 to proceed in rem; such a contract would be held 
 everywhere to involve no personal obligation whatso- 
 ever. Suppose, by the law of a particular country, a 
 mortgage, for money borrowed, should in the absence 
 of any express contract to repay, be limited to a mere 
 repayment thereof out of the land, a foreign court 
 would refuse to entertain a suit giving to it a personal 
 obligation. Suppose a contract for the payment of the 
 debt of a third person in a country, where the law sub- 
 jected such a contract to the tacit condition, that pay- 
 ment must first be sought against the debtor and his 
 estate ; that would limit the obligation to a mere acces- 
 sorial and secondary character ; and it would not be 
 enforced in any foreign country except after a compli- 
 ance with the requisitions of the local law. Sureties, 
 indorsers, and guarantors are, therefore, everywhere 
 liable, only according to the law of the place of their 
 contract. Their obligation, if treated by such local 
 law, as an accessorial obligation, will not anywhere 
 
 1 See 2 BouUenois, Observ. 46, p. 452, 454 ; Cedo Civil of France, ait- 
 1168 to 1196. 
 
 2 Story on Conflict of Laws, % 267. 
 
 3 Melan v. Fitz James, 1 Bos. & Pull. 138. 
 
 B. OF EX. 15 
 
170 BILLS OF EXCHANGE. [CH. V. 
 
 else be deemed a principal obligation.^ So, if, by the 
 law of the place of a contract, its obligation is positively 
 and ex diredo extinguished after a certain period, by 
 the mere lapse of time, it cannot be revived by a suit 
 in a foreign country, whose laws provide no such rule, 
 or apply it only to the remedy .^ To use the expres- 
 sive language of a learned judge, it must be shown, in 
 all such cases, what the laws of the foreign country are, 
 and that they create an obligation, which our laws will 
 enforce.^ 
 
 § 143. In the next place, the interpretation of con- 
 tracts.* Upon this subject there would scarcely seem 
 to be any room for doubt or disputation. There are 
 certain general rules of interpretation recognized by all 
 nations, which form the basis of all reasoning on the 
 subject of contracts. The object is to ascertain the 
 real intention of the parties in their stipulations ; and, 
 when the latter are silent, or ambiguous, to ascertain 
 what is the true sense of the words used, and what 
 ought to be implied, in order to give them their true 
 and full effect.^ The primary rule in all expositions of 
 
 1 See Pothier on Oblig. n. 407 ; Trimbey v. Vignier, 6 Carr. & Payne, 
 25 ; S. C. 1 Bing. N. C. 151, 159 ; 4 Moore & Scott, 695 ; Story on 
 Conflict of Laws, § 314, 316 a; 3 Burge, Coram, on Col. and For. Law, 
 Pt. 2, ch. 20, p. 764 to 766 ; Aymar v. Sheldon, 12 Wend. R. 439. 
 
 2 See Le Roy v. Crowninshield, 2 Mason, R. 151 ; -Pothier, Oblig. n. 
 636 to 639 ; Voet, ad Pand. Lib. 4, tit. 1, § 29, ad finem. 
 
 3 Lord Chief J. Eyre, Melan v. Duke of Fitz James, 1 Bos. & Pull. 
 141. 
 
 4 Story on Conflict of Laws, § 270. 
 
 5 See Lord Brougham's striking remarks on this subject, cited in Story 
 on Conflict of Laws, § 226 c. In Prentiss v. Savage, 13 Mass. R. 23, 
 Mr. Chief Justice Parker laid : "It seems to be an undisputed doctrine, 
 with respect to personal contracts, that the law of the place, where they 
 are made, shall govern in their construction ; except when made with a 
 view to performance in some other country, and then the law of such 
 
CH. v.] EIGHTS AND DUTIES OF PAETIES. 171 
 
 this sort, is that of common sense, so well expressed in 
 the Digest. In conventionibus contrahentium volunias, 
 potius quam verba, spedari placuit} But, in many cases, 
 the words used in contracts have diiFerent meanings 
 attached to them in different places by law or by custom. 
 And, where the words are in themselves obscure or 
 ambiguous, custom and usage in a particular place may 
 give them an exact and appropriate meaning. Hence, 
 the rule has found admission into almost all, if not into 
 all, systems of jurisprudence, that, if the full and entire 
 intention of the parties does not appear from the words 
 of the contract, and, if it can be interpreted by any 
 custom or ■ usage of the place where it is made, that 
 
 country is to prevail. This is nothing more than common sense and sound 
 justice, adopting the probable intent of the parties as to the rule of con- 
 struction. For when a citizen of this country enters into a contract in 
 another with a citizen or subject thereof, and the contract is intended to 
 be there performed, it is reasonable to presume, that both parties had re- 
 gard to the law of the place where they were, and that the contract was 
 shaped accordingly. And it is also to be presumed, when the contract is 
 to be executed in any other country than that in which it is made, that 
 the parties take into their consideration the law of such foreign country. 
 This latter branch of the rule, if not so obviously founded upon the inten- 
 tion of the parties as the former, is equally well settled as a principle in 
 the law of contracts." Mr. Chancellor Walworth, in Chapman v. Ro- 
 bertson (6 Paige, R. 627, 630,) used equally strong language. " It is an 
 established principle," said he, " that the construction and validity of per- 
 sonal contracts, which are purely personal, depend upon the laws of the 
 place where the contract is made, unless it was made with reference to 
 the laws of some other place or country where such contract, in the con- 
 templation of the parties thereto, was to be carried into effect and per- 
 formed." 2 Kent, Comm. Lect. 39, p. 457, 458 (3d edit.) ; 3 Burge, 
 Comm. on Col. and For. Law, Ft. 2, ch. 20, p. 752 to 764. 
 
 1 Dig. Lib. 50, tit. 16, 1. 219. — Many rules of interpretation are found 
 in Pothier on Obligations, n. 91 to 102 ; in Fonblanque on Equity, B. 1, 
 ch. 6, ^ 11 to 20, and notes ; 1 Domat, Civil Law, B. 1, tit. 1, ^ 2; 
 1 Powell on Contracts, 370 et seq. ; Merlin, Repertoire, Convention, ^ 7, 
 p. 366. 
 
172 BILLS OP EXCHANGE. [CH. V. 
 
 course is to be adopted. Such is the rule of the Di- 
 gest. Semper in stipulationihus et in cceteris contracUbus 
 id sequimur, quod actum est. Aut si non appareat, quod 
 actum est, erit consequens, vi id sequamur, quod in regions, 
 in qua actum est, frequentatur} Conservanda est consue- 
 tude regionis et civitatis (says J. Sande) uli cqntractum 
 est. Omnes enim actiones nostrce (si non aliter fuerit pro- 
 viswn inter contrahentes) interpretationem recipiunt a con- 
 suetudine loci, in quo contrahitur.^ Usage is, indeed, of so 
 much authority in the interpretation of contracts, that 
 a contract is understood to contain the customary 
 clauses, although they are not expressed, according to 
 the known rule, In contractilus tacite veniunt ea, qiice 
 sunt moris et consuetudinis? Thus, if a tenant is, by cus- 
 tom, to have the outgoing crop, he will be entitled to 
 it, although not expressed in the lease.* And, if a lease 
 is entirely silent as to the time of the tenant's quitting, 
 the custom of the country will fix it.^ By the law of 
 England, a month means, ordinarily, in common con- 
 tracts, as in leases, a lunar month ; but, in mercantile 
 contracts, it means a calendar month.® A contract, 
 therefore, made in England, for a lease of land for 
 twelve months, would mean a lease for forty-eight 
 weeks only.'' A Promissory Note, to pay money in 
 
 1 Dig. Lib. 50, tit. 17, 1. 34 ; 1 Domat, Civil Law, B. 1, tit. 1,^2, 
 n. 9 ; 2 Boullenois, Observ. 46, p. 490 ; 3 Burge, Cotnm. on Col. and 
 For. Law, Pt. 2, ch. 20, p. 775, 776. 
 
 2 J. Sand. Op. Comra. de Reg. Jur. ]. 9, p. 17. 
 
 3 Polhier, Oblig. n, 95 ; Merlin, Repertoire, Convention, § 7 ; 2 Kent, 
 Comm. Lect. 39, p. 555 (3d edit.) 
 
 4 Wigglesworth v. Dallisor, Doug. R. 201, 207. 
 
 5 Webb u. Plumer, 2 B. & Aid. 746. 
 
 6 2 Black. Comm. 141 ; Catesby's case, 6 Coke, R. 62; Lacon v. 
 Hooper, 6 T. R.224; 3 Barge, Comm. on Col. and For. Law, Pt. 2, ch. 
 20, p. 776, 777. ■? Ibid. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES. 173 
 
 twelve months, would mean in one year, or in twelve 
 calendar months.^ If a contract of either sort were 
 required to be enforced in a foreign country, its ti'ue 
 interpretation must be everywhere the same that it is 
 according to the usage in the country where the con- 
 tract was made. 
 
 § 144. The same word, too, often has different sig- 
 nifications in different countries.^ Thus, the term 
 usance, which is common enough in negotiable instru- 
 ments, means, in some countries, a month, in others, 
 two or more months, and, in others, half a month. A 
 note payable at one usance, must be construed, every- 
 where, according to the meaning of the word in the 
 country where the contract is made.^ There are many 
 other cases illustrative of the same principle. A Note, 
 made in England, for 100 pounds, would mean 100 
 pounds sterling. A like Note, made in America, would 
 mean 100 pounds in American currency, which is one 
 fourth less in value. It would be monstrous to con. 
 tend, that, on the English note, sued in America, the 
 less sum only ought to be recovered ; and, on the other 
 hand, on the American note, sued in England, that one 
 third more ought to be recovered.^ 
 
 § 145. The like interpretation would be applied to 
 
 1 Chitty on Bills, p. 406 (8th edit. 1833) ; Langu. Gale, 1 M. & Selw. 
 Ill ; Cockell v. Gray, 3 B. & Bing. 187 ; Leffingwell v. White, 1 Johns. 
 Cas. 99. 
 
 2 Story on Conflict of Laws, § 271. 
 
 3 Chitty on Bills, p. 404, 405 (8th edit. 1833.) See, also, 2 BouUe- 
 nois, Observ. 46, p. 447. 
 
 * See, also, Powell on Contracts, 376 ; 2 BouUenois, ObserT. 46, p. 498, 
 503 ; Henry on Foreign Law, Appendix, 233 ; Pardessus, Droit Comm. 
 art. 1492 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 772, 
 773; Story on Conflict of Laws, ^ 272 a, 307, 308. 
 15* 
 
174 BILLS OF EXCHANGE. [CH. V. 
 
 the case of a .Bill of Exchange drawn in one country, 
 and payable in another country, where the same deno- 
 mination of currency existed in both countries, but 
 represented different values. Thus, for example, a Bill 
 of Exchange drawn in Boston upon London for 100 
 pounds,- payable in London, would be construed to be 
 for 100 pounds sterling; whereas, if a Bill were drawn 
 for the same sum in London upon Boston, and payable 
 there, it would be construed to be for 100 pounds 
 of the lawful currency of Massachusetts, which, as we 
 have just seen, is one quarter less in value. In each 
 case, the ground of interpretation is the presumed in- 
 tention of the parties derived from the nature and 
 objects of the instrument. 
 
 § 146. Hence, it is adopted by the Common Law, 
 as a general rule in the interpretation of contracts, that 
 • they are to be deemed contracts of the place where 
 they are made, unless they are positively to be per- 
 formed or paid elsewhere. Therefore, a Bill or Note 
 made in France, and payable generally, will be treated 
 as a French Note, and governed accordingly by the 
 laws of France, as to its obligation and construction. 
 So, a policy of insurance, executed in England, on a 
 French ship, for the French owner, on a voyage from 
 one French port to another, would be treated as an 
 English contract, and, in case of loss, the debt would be 
 treated as an English debt. Indeed, all the rights and 
 duties, and obligations, growing out of such a policy, 
 would be governed by the law of England, and not by 
 the law of France, if the laws respecting insurance 
 were different in the two countries.' 
 
 1 Don«. Lippman, 5 Claik & Fin. R. 1, 18 to 20 ; Story on Conflict 
 of Laws, § 317. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES. 175 
 
 § 147. But where the contract is, either expressly or 
 tacitly, to be performed in any other place, there the 
 general rule is, in conformity to the presumed intention 
 of the parties, that the contract, as to its validity, 
 nature, obligation, and interpretation, is to be governed 
 by the law of the place of performance.' This would 
 seem to be a result of natural justice ; and the Roman law 
 has (as we have seen) adopted it as a maxim ; Contrax- 
 isse umisquisque in eo loco intelUgitiir, in quo ut solveret, se 
 ohligavit ; ^ and again, in the law, Aiit icii qidsque con- 
 traxerit. Contradiim autem non utique eo hco inteUigitur, 
 quo negotium gestum sit ; sed quo solvenda est pecunia? 
 The rule was fully recognized, and acted on, in a recent 
 case, by the Supreme Court of the United States, where 
 the Court said, that the general principle, in relation to 
 contracts made in one place, to be executed in another, 
 was well settled; that they are to be governed by the 
 laws of the place of performance.* 
 
 § 148. The like question, also, often arises in cases 
 respecting the payment of interest.* The general rule 
 is, that interest is to be paid on contracts according to 
 . the law of the place where they are to be performed, in 
 all cases, where interest is expressly or impliedly to be 
 paid.® Usuranan modus ex more regionis, uhi contractum 
 
 1 Story on Conflict of Laws, § 280 ; -2 Kent, Comm. Lect. 37, p. 393, 
 394, and Lect. 39, p. 459 (4th edit.) ; Casaregis, Disc. 179 ; 1 Em^rigon, 
 c. 4, § 8 ; Voet, de Stat. 4 9, ch. 2, u. 15, p. 271 (edit. 1715) ; Id. p. 328 
 (edit. 1661) ; BouUenois, Quest. Contr. des Lois, p. 330, &c. ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 771, 772 ; Don v. Lippman, 
 5 Claik & Fin. R. 1, 13, 19. 
 
 2 Dig. lib. 44, tit. 7, 1. 21 ; Story on Conflict of Laws, ^ 233. 
 
 3 Dig. Lib. 42, tit. 5, 1. 3. 
 
 ■* Andrews v. Pond, 13 Peters, R. 65. Goddin v. Shipley, 7 B. Munroe, 
 R. 578. 
 
 5 Story on Conflict of Laws, § 281. 
 
 6 Story on Conflict of Laws, § 292, 293, 293 a to 293 e, 304 ; Conner v. 
 
176 BILLS OF EXCHANGE. [CH. V. 
 
 est, constUuitur, says the Digest.' Thus, a Note made in 
 Canada, where interest is six per cent., payable with in- 
 
 Bellamont, 2 Vern. R. 382; Cash v. Kennion, 11 Vesey, R. 314 ; Robin- 
 son V. Bland, 2 Burr. R. 1077 ; Ekins v. East India Company, 1 P. W. 
 395 ; Ranelagh v. Champant, 2 Vern. R. 395, and note, ibid, by Raithby; 
 
 1 Chitty on Cora. & Manuf. ch. 12, p. 650, 651 ; 3 Chitty, Id. ch. 1, p. 
 109; Eq. Abridg. Interest, E. ; Henry on Foreign Law, 43, note ; Id. 53 ; 
 
 2 Kaimes, Equity, B. 3, ch. 8, § 1 ; 2 Fonbl. Eq. B. 5, ch. 1, § 6, and 
 note ; Bridgman's Equity Digest, Interest, vii. ; Fanning v. Consequa, 17 
 Johns. R. 511 ; S. C. 3 Johns. Ch. R. 610 ; Hosford a. Nichols, 1 Paige, 
 R. 220 ; Houghton t). Paige, 2 N. Hamp. R. 52; Peaooclc u. Banks, 1 
 Minor, R. 387; Lapice v. Smith, 13 Louis. R. 91, 92 ; Thomson v. Ket- 
 chum, 4 Johns. R. 285 ; Healy v. Gorman, 3 Green, N. J. R. 328 ; 2 
 Kent-, Comm. Lect. 39, p. 460, 461 (3d edit.) — A case, illustrative of 
 this principle, recently occurred before the House of Lords. A widow, in 
 Scotland, entered into an obligation to pay the whole of her deceased hus- 
 band's debts. It was held by the Court of Session in Scotland, that the 
 English creditors, on contracts made in England, were entitled to recover 
 interest in all cases, where the law of England gave interest, and not 
 where it did not. Therefore, on Bonds, and Bills 'of Exchange, interest 
 was allowed, and on simple contracts not. And this decision was affirmed 
 by the House of Lords. Montgomery v. Budge, 2 Dow & Clark, Rep. 
 297. The case of Arnott ». Redfern (2 Carr. & Payne, 88,) may, at first 
 view, seem inconsistent with the general doctrine. There, the original 
 contract was made in London, between an Englishman and a Scotchman. 
 The latter agreed to go to Scotland, as agent, four times a year, to sell 
 goods and collect debts for the other party, to remit the money, and to 
 guarantee one fourth part of the sales ; and he was to receive one per 
 cent, upon the amount of sales, &o, The agent sued, for a balance of his 
 account, in' Scotland, and the Scotch Court allowed him interest on it. 
 The judgment was afterwards sued in England ; and the question was, 
 whether interest ought to be allowed. Lord Chief Justice Best said; 
 " Is this an English transaction ? For, if it is, it will be regulated by the 
 rules of English law. But, if it is a Scotch transaction, then the case will be 
 different." He afterwards added, " This is the case of a Scotchman, who 
 comes into England, and makes a contract. As the contract was made in 
 England, although it was to be executed in Scotland, I think it ought to 
 be regulated according to the rules of the English law. This is my pre- 
 sent opinion. These questions of international law do not often occur." 
 And he refused interest, because it was not allowed by the law of Eng- 
 
 1 Dig. Lib. 22, tit. 1, 1. 1 ; 2 B urge, Coram, on Col. and For. Law, Pt. 
 2, ch. 9, p. 860 to 862. 
 
CH. v.] 
 
 RIGHTS AND DUTIES OF PARTIES. 177 
 
 terest ia England, where it is five per cent., bears Eng- 
 lish interest only.^ Loans, made in a place, bear the 
 interest of that place, unless they are payable else- 
 where.^ And, if payable in a foreign country, they may 
 bear any rate of interest not exceeding that, which is 
 lawful by the laws of that country.^ And on this ac- 
 count, a contract for a loan, made and payable in a fo- 
 reign country, may stipulate for interest higher than 
 that allowed at home.^ If the contract for interest be 
 illegal there, it will be illegal everywhere.^ But, if it 
 
 land. The Court afterwards ordered interest to be given, upon the ground, 
 that the balance of such an account would carry interest in England. But 
 Lord Chief Justice Best rightly expounded the contract, as an English con- 
 tract, though there is a slight inaccuracy in his language. So far as. the 
 principal was concerned, the contract to pay the commission was to he 
 paid in England. The services of the agent were to be performed in 
 Scotland. But the whole contr£(ct was not to be executed exclusively there 
 by bfllli parties. A' ennlract, made to pay monpy in England, for services 
 performed abroad, is an English contract, and will carry English interest. 
 
 1 Scofield V. Day, 20 Johns. U. 102. 
 
 2 De Wolf t). Johnson, 10 Wheaton, R. 367, 383 ; Consequa v. Willing, 
 Peterp, Cir. R. 225 ; 2 Boullenois, Observ. 46, p. 477, 478 ; Andrews v. 
 Pond, 13 Peters, R. 65, 78. 
 
 3 Ibid. ; 2 Kent, Comrn. Lect. 39, p. 460, 461 (3d edit.) ; Thompson v. 
 Ketchum, 4 Johns. R. 285 ; Healy ?;. Gorman, 3 Green, N. J. R. 328. 
 
 4 2 Kent, Comm. Lect. 39, p. 460, 461 (3d edit.); Hosford v. Nichols, 
 1 Paige, R. 220 ; Houghton v. Page, 2 N. Harap. R. 42; Thompson v. 
 Powles, 2 Simons, R. 194. In this last case, the Vice-Chancellor said ; 
 " With respect to the question of usury, in order to hold the contract to 
 be usurious, it must appear, that the contract was made here, and that the 
 consideration for it was to be paid here. It should appear, at least, that 
 the payment was not to be made abroad; for, if it was to be made abroad, 
 it would not be usurious." See, also, Andrews v. Pond, 13 Peters, R. 
 65, 78; De Wolf «. Johnson, 10 Wheat. R. 383. 
 
 5 2 Kaimes, Equity, B. 3, ch. 8, ^ 1 ; Hosford v. Nichols, 1 Paige, R. 
 220; 2 Boullenois, Observ. 46, p. 477. — In the case of Thompson v. 
 Powles (2 Simons, R. 194), the Vice-Chancellor said ; " In order to have 
 the contract (for stock) usurious, it must appear, that the contract was 
 made here, and that the consideration for it was to be paid here." See, 
 also, Yrisarri v. Clement, 2 Carr. & Payne, R. 223. In Hosford v. Ni- 
 
178 BILLS OF EXCHANGE. [CH. V. 
 
 be legal where it is made, it will be of universal obliga- 
 tion even in places where a lower interest is prescribed 
 by law.^ 
 
 § 149. The question, therefore, whether a contract is 
 usurious, or not, depends, not upon the rate of the in- 
 terest allowed, but upon the validity of that interest in 
 the country where the contract is made, and is to be 
 executed.^ A contract, made in England, for advances 
 to be made at Gibraltar, at a rate of interest beyond 
 that of England, would, nevertheless, be valid in Eng- 
 land ; and so, a contract to allow interest upon credits 
 given in Gibraltar, at such higher rate, would be valid 
 in favor of the English creditor.^ 
 
 § 150. Where a contract is made in one country, 
 and is payable in the currency of that country, and a 
 suit is afterwards brought in another country, to recover 
 for a breach of the contract, a question often arises, as 
 to the manner in which the amount of the debt is to 
 be ascertained, whether at the nominal or established 
 par value of the currencies of the two countries, or ac- 
 cording to the rate of Exchange at the particular time 
 existing between them. In all cases of this sort, the 
 place where the money is payable, as well as the cur- 
 
 chols (1 Paige, R. 220), where a contract was made for the sale of lands 
 in New York, by citizens then resident there, and the vendor afterwards 
 removed to Pennsylvania, where the contract was consummated , and a mort- 
 gage given to secure the unpaid purchase-money, with New York interest 
 (which was higher than that of Pennsylvania), the Court thought the mort- 
 gage not usurious, it being only a consummation of the original bargain 
 made in New York. 
 
 1 Ibid. 
 
 2 Story on Conflict of Laws, § 293 ; Harvey v. Archbold, 1 Ryan & 
 Mood. R. 184; Andrews D.Pond, 13 Peters, R. 65,78; Story on Conflict 
 of Laws, ^ 243. 
 
 3 Ibid. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES. 179 
 
 rency, in which it is promised to be paid, are (as we 
 shall presently see) material ingredients.-' For instance, 
 a debt of £100 sterling is contracted in England, and 
 is payable there ; and afterwards a suit is brought in 
 America for the recovery of the amount. The present 
 par, fixed by law between the two countries is, to esti- 
 mate the pound sterling at four dollars and forty-four 
 cents.^ But the rate of Exchange, on Bills drawn in 
 America on England, is generally at from 8 to 10 per 
 cent, advance on the same amount. In a recent case, 
 it was held by the King'b Bench, in an action for a debt 
 payable in Jamaica, and sued in England, that the 
 amount should be ascertained by adding the rate of 
 Exchange to the par value, if above it ; and so vice 
 versa, by deducting it, when the Exchange is below par.^ 
 Perhaps it is difficult to reconcile this case with the 
 doctrine of some other cases.'* In a late American case, 
 where the payment was to be in Turkish piastres, (but 
 it does not appear from the Report, where the' contract 
 was made, or was payable,) it was held to be the settled 
 rule, " Where money is the object of the suit, to fix the 
 value according' to the rate of Exchange at the time of 
 
 1 Story on Conflict of Laws, § 308, 310. 
 
 2 This is the par for ordinary commercial purposes. Bnt by the Act of 
 Congress 27th of July, 1842, the par, for the purpose of estimating the 
 value of goods, paying wi ad valorem duty, and for that purpose only, is 
 declared to be to estimate a pound sterling at four dollars and eighty-four 
 cents. Ante, § 30, note. 
 
 3 Scott V. Beavan, 2 Barn. & Adolph. 78. — Lord Tenterden, in deliver- 
 ing the opinion of the Court in favor of the rule, said ; " Speaking for 
 myself personally, I must say, that I still hesitate as to the propriety of 
 the conclusion." See Delegal v. Naylor, 7 Bing. R. 460 ; Ekins v. East 
 India Company, 1 P. Will. 396. 
 
 * See Cockerell, v. Barber, 16 Ves. 461; Story, Conflict of Laws, 
 § 312. 
 
180 BILLS OF EXCHANaE. [CH. V. 
 
 « 
 
 the trial." ^ It is impossible to say, that a rule, laid 
 down in such general terms, ought to be deemed of 
 universal application ; and cases may easily be ima- 
 gined, which may justly form exceptions. 
 
 § 151. The proper rule would seem to be, in all 
 cases, to allow that sum, in the currency of the coun- 
 try where the suit is brought, which shall approximate 
 most nearly fo the amount, to which the party is en- 
 titled in the country where the debt is payable, cal- 
 culated by the real par, and not by the nominal par, of 
 Exchange.^ This would seem to be the rule, also, 
 which is adopted by foreign jurists.^ In some coun- 
 tries there is an established par of Exchange by law, 
 as in the United States, where the pound sterling of 
 England is now valued at four dollars and forty-four 
 cents, for all purposes, except the estimation of the 
 duties on goods paying an ad valorem duty.'* In other 
 countries, the original par has by the depreciation of 
 the currency, become merely nominal ; and there we 
 
 1 Lee V. Wilcocks, 5 Serg. & Rawle, 48. — It is probable, tbat in this 
 case the money was payable in Turkey. 
 
 2 Story on Conflict of Laws, \ 309. In Cash v. Kennion, (11 Ves. R. 
 314,) Lord Eldon held, that, if a man in a foreign country agrees to pay 
 jGIOO in London, upon a given day, he ought to have that sum there on 
 that day. And, if he fails in that contract, wherever the creditor sues him, 
 the law of that country ought to give him just as much, as he would have 
 had, if the contract had been performed. — J. Voet says, " Si major, alibi 
 minor, eorundem nummorum valor sit, in solutione facienda ; non tam 
 spectanda potestas pecuniae, quse est in loco, in quo contractus celebratus 
 est, quam potins quse obtinet in regione ill4, in qua contractus implemen- 
 tum faciendum est." Voet, ad Pand. Lib. 12, tit. 1, § 25 ; Henry on For- 
 eign Law, 43, note. See, also, Story on Conflict of Laws, § 281 ; 3 
 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 771 to 773 ; Grant 
 V. Healey, 3 Sumner, B,. 523. 
 
 3 Story on Conflict of Laws. \ 281, 309. 
 
 4 Story on Conflict of Laws, \ 308, n. (2) ; Ante, § 30, note, § 150. 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 181 
 
 • 
 
 should resort to the real par. Where there is no es- 
 tablished par from any depreciation of the currency, 
 there, the rate of Exchange may justly furnish a stand- 
 ard, as the nearest approximation of the relative value 
 of the currencies. And .-where the debt is payable in a 
 particular known coin, as in Sicca rupees, or in Turk- 
 ish piastres, there the mint value of the coin, and not 
 the mere bullion value in the country where the coin 
 is issued, would seem to furnish the proper standard, 
 since it is referred to by the parties in their contract, 
 by its descriptive name, as coin. 
 
 § 152. But in all these cases we are to take into con- 
 sideration the place, where the money is, by the origi- 
 nal contract, payable ; for wheresoever the creditor may 
 sue for it, he is entitled to have an amT)unt equal to 
 what he must pay, in order to remit it to that country.' 
 Thus, if a Note were made in England, for £100 ster- 
 ling, payable in Boston (Mass.), if a suit were -brought 
 in Massachusetts, the party would be entitled to recover 
 four hundred and forty-four dollars and forty-four cents, 
 that being the established par of Exchange by our laws. 
 But, if our currency had become depreciated by a de- 
 basement of our coinage, then the depreciation ought 
 to be allowed for, so as to bring the sum to the real 
 par, instead of the nominal par.^ But, if a like Note 
 
 .1 See 1 Chitty on Comm. and Manufact. ch. 12, p. 650, 651. See 
 Story on Conflict of Laws, § 281, 308, 310 ; Grant v. Healey, 3 Sumner, 
 R. 523. 
 
 2 Paul Voet has expressed an opinion upon this subject in general terms. 
 " Quid, si in specie de nummorum aut redituum solutione difhcultas inci- 
 dat, si forte valor sit immutatus ; an spectabitur loci valor, ubi contractus 
 erat celebratus, an loci, in quern destinata erat solutio? Kespondeo, ex 
 general! regula, spectandam esse loci statutum, in quern destinata erat 
 solulio." P. Voet, de Stat. § 9, ch. 2, § 15, p. 271 ; Id', p. 328 (edit. 
 1661.) And he applies the same rule, where contracts are for specific 
 
 B. OF EX. 16 
 
182 BILLS OF EXCHANGE. ' [CH. V. 
 
 were given in England, for £100, payable in England, 
 or payable generally (which, in legal eflFect, would be 
 the same thing) ; there, in a suit in Massachusetts, the 
 party would be entitled to recover, in addition to the 
 four hundred and forty-four dollars and forty-four cents, 
 the rate of Exchange between Massachusetts and Eng- 
 land, which is ordinarily from eight to ten per cent, 
 above par. And, if the Exchange were below par, a 
 proportionate deduction should be made; so that the 
 party would have his money replaced in England, at 
 exactly the same amount, which he would be entitled 
 to recover in a suit there. 
 
 § 153. But, to bring ourselves more closely to the 
 subject before us, let us now proceed to some other 
 illustrations of these doctrines, in cases of negotiable 
 instruments. Thus, suppose a negotiable Bill of Ex- 
 change is drawn in Massachusetts on England, and is 
 indorsed. in New York, and again by the first Indorsee 
 in Pennsylvania, and by the second in Maryland, and 
 the Bill is dishonpred ; what damages will the Holder 
 be entitled to ? The law, as to damages, in these 
 Sta,tes is diiferent. In Massachusetts, it is ten per 
 cent., in New York and Pennsylvania, twenty per cent., 
 and in Maryland, fifteen per cent.^ What rule, then, is 
 to govern ? The answer is, that, in each case, the Lea; 
 loci contracts. The Drawer is liable on the Bill, accord- 
 ing to the law of the place, where the Bill was drawn ; 
 and the successive Indorsers are Ijable on the Bill, ac- 
 cording to the law of the place of their respective 
 
 aiticles, the measuies whereof are diffeient in diffeient countries. Id. 
 § 16, p. 271 ; Id. p. 338 (edit. 1661.) 
 
 1 Story on Conflict of Laws, ^ 314 ; 3 Kent, Comm. Lect. 41, p. 116 to 
 120 (3d edit.) 
 
CH. v.] BIGHTS AND DUTIES OF PARTIES. 183 
 
 indorsements, every indorsement being treated as a 
 new and substantive contract.-^ The consequence is, 
 that the Indorser may render himself liable, upon a dis- 
 honor of the Bill, for a much higher rate of damages, 
 than he can recover from the Drawer. But this results 
 from his own voluntary contract ; and not from any col- 
 lision of rights, arising from the nature of the original 
 contract.2 
 
 § 154. It has sometimes been suggested, that this 
 doctrine is a departure from the rule, that the law of 
 the place of payment is to govern.^ But, correctly 
 considered, it is entirely in conformity to the rule. 
 
 1 Story on Conflict of Laws, § 307, 317 ; PoT)rers v. 'Lynch, 3 Mass. R. 
 77; Prentiss v. Savage, 13 Mass. R. 20, 23, 24; Slacum v. pomeroy, 6 
 Cranch, R. 221 ; Depau v. Humphreys, 20 Martin, R. 1, 14, 15 ; Hicks v. 
 Brown, 12 Johns. R. 142; Bayley on Bills, ch. A., p, 18 (Phillips & 
 Sewall's edition) ; Trimbey v. Vignier, 1 Bing. R. 151, 159, 160 ; Story 
 on Conflict of Laws', § 367, 316 o, 353 to 361 ; 3 Barge, Coram, on Col. 
 and For. Law, Pt. 3, ch. 20, p. 771 to 774. 
 
 2 Pairdessus has discussed this matter at large. He adopts the general 
 doctrine here Stated, that the law of the place of each indorsement is to 
 govern, as each indorsement constitutes a new contract between the im- 
 mediate parties. And he applies the same rule to damages ; and says, 
 that, if the law of the place, where a Bill Of Exchange is drawn, admits 
 of the accumulation of costs and charges on account of reexchanges, (as 
 is the law of some countries,) in such a case, each successive Indorser 
 may become liable to the payment of such successive accumulations, if 
 allowed by the law of the place where they made their' indorsement. He 
 seems, indeed, to press his doctrine farther, and to hold, that, if the law 
 of the place of such indorsement does not allow such accumulation of re- 
 exchanges, but the law of the place where the Bill is drawn does, the In- 
 dorsefs will be liable to pay, as the Drawer would. But his reasoning does 
 not seem satisfactory; and it is certainly inconsistent with the acknow- 
 ledged doctrines of the Common Law. Pardessus, Droit Commerc. Tom. 
 5, art. 1500. See, also, Henry on Foreign Laws, 53, Appx. 239 to 242 ; 
 3 Kent, Comm. Lect. 44, p. 115 (4th edit.) See Rothschild i*. Currie, I 
 Adolph. & Ell. New R. 43. 
 
 3 Story on Conflict of Laws, § 315 ; 2 Kent, Comm. Lect. 39, p. 459, 
 460 (4th edit.) ; Chitty on Bills, p. 191 to 194 (8th edit. London.) 
 
184 BILLS OF EXCHANGE. [CH. V. 
 
 The Drawer and Indorsers do not contract to pay the 
 money in the foreign place, on which the Bill is drawn ; 
 but only to guarantee its acceptance and payment in 
 that place by the Drawee ; and, in default of such pay- 
 ment, they agree, upon due notice, to reimburse the 
 Holder, in principal and damages, at the place where 
 they respectively entered into the contract.' 
 
 § 155. Nor is it any departure from the rule, to hold, 
 that the time when the payment of such a Bill is to 
 accrue, is to be according to the law of the place where 
 the Bill is payable ; so that the days of grace (if any) 
 are to be allowed, according to the law, or custom, of 
 the place, where the Bill is to be accepted and paid ; ^ 
 for such is the appropriate construction of the contract, 
 according to the rules of law, and the presumed inten- 
 tion of the parties.' 
 
 § 156. Another illustration of the general doctrine 
 may be derived from the case of negotiable paper, as 
 to the binding obligation and effect of a blank indorse- 
 ment. It seems, that, by the law of France, an in- 
 dorsement in blank of a Promissory Note does not 
 transfer the property to the Holder, unless certain pre- 
 scribed formalities are observed in the indorsement, 
 such as the date, the consideration, and the name of the 
 party, to whose order it is passed ; otherwise, it is 
 
 1 Potter V. Brown, 5 East, R. 123, 130 ; Hicks v. Brown, 12 Johns. R 
 142 ; Powers v. Lynch, 3 Mass. R. 77 ; Prentiss v. Savage, 13 Mass. R 
 80, 24 ; ^Pardessus, Droit Comm. art. 1497. 
 
 2 Story on Conflict of Laws, ^ 316, 347,361. See 2 Kent, Comm 
 Lect. 39, p. 459, 460 (4th edit.) ; Chitly on Bills, p. 191 (8ih edit. Lond.) 
 Pothier, Contrat de Change, n. 15, 155; Pardessus, Droit Comm. Tom 
 5, § 1495 ; Goddin v. Shipley, 7 B. Munroe, R. 597. 
 
 3 Mr. Justice Martin, in Vidal v. Thompson, 11 Martin, R. 23,24; 
 Post, § 170, 177. 
 
CH. V.J RIGHTS AND DUTIES OF PARTIES. 185 
 
 treated as a mere procuration.-' Now, let us suppose a 
 Note, made at Paris, and payable to the order of the 
 Payee, and he should there indorse the same in blank, 
 without the prescribed formalities, and afterwards the 
 Holder should sue the Maker of the Note in another 
 country, as, for example, in England, where no such 
 formalities are prescribed ; the question would arise, 
 whether the Holder could recover in such a suit, in an 
 English Court, upon such an indorsement ? It has 
 been held, that he cannot ; and this decision seems to 
 be founded in the true principles of international juris- 
 prudence ; for it relates, not to the form of the remedy, 
 but to the interpretation and obligation of the contract, 
 created by the indorsement, which ought to be govern- 
 ed by the law of the place of the indorsement.* 
 
 § 157. Another illustration may be derived from the 
 different obligations, which an indorsement creates in 
 different states.^ By the general Commercial Law, in 
 order to entitle the Indorsee to recover against any 
 antecedent Indorsor upon a negotiable Note, it is only 
 necessary that due demand should be made upon the 
 Maker of the Note at its maturity, and due notrc^ of 
 the dishonor given to the Indorser. But, by the laws 
 of some of the American States, it is required, in order 
 to charge an antecedent Indorser, not only that due 
 demand should be made, and due notice given, but 
 that a suit shall be previously commenced against the 
 Maker, and prosecuted with effect in the country 
 where he resides ; and, then, if payment cannot be ob- 
 
 1 Story on Conflict of Laws, § 316 a ; Code de Comm. art. 137, 138 ; 
 Trimbey v. Vignier, 1 Bing. N. Gas. 151, 158 to 160. 
 
 2 Trimbey v. Vignier, 1 Bing. JM. Cas. 151, 158 to 160 ; Story on Con- 
 flict of Laws, § 272. 
 
 3 Story on Conflict of Laws, § 316. 
 
 16* 
 
186 BILLS OF EXCHANGE. [CH. V. 
 
 tained from him under the judgment, the Indorsee may 
 have recourse to the Indorser. In such a case, it is 
 clear, upon principle, that the indorsement, as to its 
 legal effect and obligation, and the duties of the Holder, 
 must be governed by the law of the place where the 
 indorsement is made. This very point has been re- 
 cently decided, in a case where a Note was made and 
 indorsed in the State of Illinois. On that occasion, Mr. 
 Chief Justice Shaw, in delivering the opinion of the 
 Court, said; " The Note declared on, being made in Illi- 
 nois, both parties residing there at the time, and it also 
 being indorsed in Illinois, we think, that the contract, 
 created by that indorsement, must be governed by the 
 law of that State. The law in question does not affect 
 the remedy, but goes to create, limit, and modify the 
 contract effected by the fact of indorsement. In that, 
 which gives force and effect to the contract, and imposes 
 restrictions and modifications upon it, the law of the 
 place of contract must prevail, when another is not 
 looked to, as a place of performance. Suppose it were 
 shown, that by the law of Illinois, the indorsement of a 
 note by the Payee merely transferred the legal interest 
 in the Note to the Indorsee, so as to enable him to sue 
 in his own name, but imposed no conditional obligation 
 on the, Indorser to pay ; it would hardly be contended, 
 that an action could be brought here upon such an in- 
 dorsement, if the Indorser should happen to be found 
 here, because by our law, such an indorsement, if made 
 here, would render the Indorser conditionally liable to 
 pay the Note. By the law of Illinois, the Indorser is 
 liable only after a judgment obtained against the Maker; 
 and as no such judgment appears to have been obtain- 
 ed on this Note, the condition,, upon which alone, the 
 
CH. v.] BIGHTS AND DUTIES OP PARTIES. 187 
 
 plaintiff may sue, is not complied ■with, and, therefore, 
 the action cannot be maintained." ^ 
 
 § 158. But suppose a negotiable Note is made in 
 one country, and is payable there, and it is afterwards 
 indorsed in another country, and, by the law of the 
 former country, equitable defences are let in, in favor 
 of the Maker, and by the latter, such defences are ex- 
 cluded ; what law is. to govern, in regard to the Holder, 
 in a suit against the Maker to recover the amount, 
 upon the indorsement to him? The answer is, the 
 law of the place, where the Note vras made ; for there 
 the Maker undertook to pay ; and the subsequent ne- 
 gotiation of the Note did not change his original obliga- 
 tion, duty, or rights.^ Acceptances of Bills are govern- 
 ed by the same principles. They are deemed contracts 
 of acceptance in the place where they are made, and 
 where they are to be performed.^ So Paul Voet lays 
 down the doctrine. Quid si de Uteris camUi incidat 
 qucestio ; Quis locus erit spedandas ? Is spedandiis est 
 locus, ad quern suni destinatce, et ibidem acceptatce^ But, 
 suppose a negotiable acceptance, or a negotiable Note, 
 made payable generally, without any specification of 
 place ; what law is to govern, in case of a negotiation 
 of it by one Holder to another in a foreign country, in 
 regard to the Acceptor, or to the Maker ? Is it a con- 
 
 • Story jm-Conflict of Laws, § 316 I ; Williams v. Wade, I Metcalf, B. 
 82, 83 ; Worcester Bank u. Wells, 8 Mete. R. 107; Carroll v. Upton, 2 
 Sandford, Superior Ct. N. Y. R. 171 ; Bernard v. Barry, 1 Greene, Iowa, 
 R. 388. 
 
 2 Story on Conflict of Laws, ^ 317.; Dry v. Winter, 16 Martin, R. 277 ; 
 Story on Conflict of Laws, § 332, 343, 344. 
 
 3 Lewis V. Owen, 4 Barn. & Aid. '654; Story on Conflict of Laws, 
 § 307, 333, 344, 345 ; Cooper v. Earl of Waldegrave,'2 Beavan, R. 282. 
 
 * P. Voet, de Statut. ^ 9, ch. 2, n. 14, p. 270 (edit. 1713) ; Id. p. 327 
 (edit. 1661) ; Story on Conflict of Laws, § 346, note (4.) 
 
188 BILLS OF EXCHANGE. [CH. V. 
 
 tract between them to pay in any place, where it is 
 negotiated, so as to be deemed a contract of that parti- 
 cular place, and governed by its laws ? The Supreme 
 Court of Massachusetts have held, that it creates a debt 
 payable anywhere, by the very nature of the contract ; 
 and it is a promise to whosoever shall be the Holder of 
 the Bill or Note.' Assuming this to be true ; still it 
 does not follow, that the law of the place of the negotia- 
 tion is to govern ; for the transfer is not, as to the Ac- 
 ceptor, or the Maker, a new contract ; but it is under, 
 and a part of the original contract, and springs up from 
 the law of the place where that contract was made. A 
 contract to pay generally is governed by the law of the 
 place, where it is made ; for the debt is payable there, 
 as well as in every other place.® To bring a contract 
 
 1 Braynard v. Marshall, 8 Pick. R. 194 ; Story on Conflict ]of Laws, 
 § 341, 343 to 346 ; Post, i 166. 
 
 2 Ante, ^ 146, 147. See Kearney v. King, 3 B. & Aid. 301 ; Sprowle 
 V. Legge, 1 B. & Cressw. 16; Story, Confl. of Laws, § 272 a, 329; Don 
 j).,Lippman, 5 Clark & Fin. 1, 12, 13. — In this last case, a Bill of Ex- 
 change was drawn and accepted in Paris by a Scotchman domiciled in 
 Scotland, and it was payable generally. It seems, that, by the law of 
 Scotland, an acceptance is deemed payable at the place of the domicil of 
 the Acceptor, at the time when it becomes due. Lord Brougham, on this 
 occasion, said : " It appears, that in Scotland, — and it is rather singular 
 that it should be so, — where a Bill is accepted payable generally, without 
 any particular place being named, it shall be deemed payable at the place 
 at which the Acceptor is domiciled, when it becomes due. It becomes of 
 some importance to know where the Bills were payable, because this 
 principle, which has been adopted of late years in many of the Scotch de- 
 cisions, and towards which I admit the great leaning of the Scotch profes- 
 sion is, renders it material to consider, whether this is a Scotch or a fo- 
 reign debt. Yet sometimes this expression is used in the cases, without 
 affording any accuracy of description ; for sometimes the debt is called 
 English, or French, in respect to the place where the contract was made ; 
 sometimes it is the place of the origin, sometimes of the payment, of the 
 contract ; and sometimes of the domicil of one of the parties. But, at all 
 events, it becomes important to consider, whether this was a foreign or a 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 189 
 
 within the general rule of the Lex loci, it is not neces- 
 sary, that it should be payable exclusively in the place 
 of-its origin. If payable everywhere, then it is govern- 
 ed by the law of the place where it is made ; for the 
 plain reason, that it cannot be said to have the law of 
 any other place in contemplation, to govern it» validity, 
 its obligation, or its interpretation. All debts between 
 the original parties are payable everywhere, unless 
 some special provision to the contrary is made ; and, 
 therefore, the rule is, that debts iave no situs ; but ac- 
 company the creditor everywhere.^ The Holder, then, 
 takes the coniract of the Acceptor, or Maker, as it was 
 originally made, and as it was in the place where it 
 was made. It is there, that the promise is made to 
 him to pay everywhere.^ 
 
 § 159. A case a little more difBjcult in its texture is, 
 when a contract is made in one country, for payment of 
 money in another country, and, by the laws of the latter 
 a stamp is required, to make the contract valid, and it 
 is not by those of the former ; whether it is governed 
 by the Lex solutionis, or by the Lex loci contractus, as to 
 the stamp. It has been held, that a stamp is not re- 
 quired, in such a case, to give validity to the contract, 
 upon the ground, that an instrument, as to its form and 
 
 Scotch debt. In the present case, it was held, most properly, to be a fo- 
 reign debt. That is a fact admitted ; it is out of all controversy. This, 
 therefore, must now be taken to be a French debt; and ihen the general 
 law is, that, where the acceptance is general, naming no place of payment, 
 the place of payment shall be taken to be the place of the contracting of 
 the debt. I shall, therefore, deal with this Bill, as if it was accepted, pay- 
 able in Paris." 
 
 ' Blanchard v. Russell, 13 Mass. R. 1,6; Slacumjj. Pomeroy, 6 Cranch, 
 221 ; Story on Conflict of Laws, § 329, 362, 399, 400. 
 
 2 Story on Conflict of Laws, § 343, 344 ; Worcester Bank v. Wells, 8 
 Mete. R. 107 ; Ante, § 145, 146. 
 
190 BILLS OF EXCHANGE. [CH. Y. 
 
 solemnities, is to be governed by the Lex lod contractus, 
 and not by the law of the place of payment ; and that, 
 therefore, a stamp is not required by the principle.' 
 On that occasion the Court said ; " An Instrument, as 
 to its form and the formalities attending its execution, 
 must be tested by the laws of the place where it is 
 made ; but the laws .and usages of the place where the 
 obligation, of which it is evidence, is to be fulfilled, 
 must regulate the performance. A Bill, drawn out of 
 London, must be paid at the expiration of the days of 
 grace, which the laws and usages of that place recog- 
 nize ; but need not have those stamps, which are by 
 law required on a Bill drawn there." ^ 
 
 § 160. Having considered the principles applicable 
 to the nature, validity, interpretation, and incidents 
 and effects of contracts, we are next led to the consider- 
 ation of the manner in which they may be discharged, 
 and what matters upon the merits will constitute a 
 good defence to them. I say, upon the merits ; for the 
 objections arising from the law of the State, where the 
 suit is brought, {Lex fori^ such as the limitations of 
 remedies, and the forms and modes of suit, constitute 
 a separate head of inquiry.^ 
 
 § 161. And, here, the general rule is, that a defence, 
 or discharge, good by the law of the place where the 
 contract is made, or is to be performed, is to be held of 
 equal validity in every other place where the question 
 
 1 Story on Conflict of Laws, ^ 318; Mr. Justice Martin in Vidal «. 
 Thompson, 11 Martin, R. 23 to 25. But see Story on Conflict of Laws, 
 § 260, and note (1), p. 216, § 263, 262 a ; Wynne v. Jackson, 2 Russell, R. 
 351 ; Clegg v. Levy, 3 Camp. R. 166; James v. Catherwood, 3 Dowl. & 
 Ryl. R. 190 ; Worcester Bank v. Wells, 8 Mete. R. 107. 
 
 s Ibid. 
 
 3 Story on Conflict of Laws, § 330 ; Id. § 524 to 527 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 191 
 
 may come to be litigated.' John Voet has laid down 
 this doctrine in the broadest terms. Si adversus con- 
 tractum aliudve negotium gestum faclumve restitutio deside- 
 retur, dim quis aut metu, aut dolo, aut errors lapsus, dam- 
 num sensit contrahendo, transigendo, solvendo, fidejuhendo, 
 Jiereditatem adeundo, aliove simili modo ; rede mterpretes 
 statuisse arhitror, leges regionis, in qua contractum gestumve 
 est id, contra quod restitutio petitur, locum sibi dehere vin- 
 dicare in terminandd ipsd restitutionis controversies ; sive 
 res nice, de quibus coiiiractum est, et in quibus Icesio contigit, 
 eodem in hco, sive alibi sitae sint. Nee int^rerit utrum 
 Icesio circa res ipsas contigerii, veluti pluris minorisve, quam 
 cequum est, error ejusto distractas, an vero propter neglecta 
 solennia in loco contractus desiderata. Si tamen contractus 
 implementum non in ipso contractus loco fieri debeat, sed ad 
 hcum alium sit destinatwn, mm loci contractus, sed imple- 
 menti, leges spectandas esse ratio suadet ; ut ita secundum 
 cujus loci jura implementum accipere debuit contractus, 
 juxta ejus etiam leges resolvaiur? Casaregis in substance 
 lays down the same doctrine ; ^ and Huberus through- 
 out his dissertation implies it/ as indeed does Du- 
 moulin.^ 
 
 1 Story on Conflict of Laws, ^ 331 ; 2 Bell, Comm. B. 8, ch. 3, § 1267, 
 p. 692 (4lh edit.) ; Id. p. 688 (5th edit.) ; 3 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 31, § 7, p. 874 to 886 ; Id. ch. 22, p. 924 to 929.— 
 As to what will constitute a discharge in foreign countries, and especially 
 by novation, by confusion, by set-oflTor compensation, by payment or con- 
 signation, and by relapse, see 3 Burge, Comm. on Col. and For. Law, Pt. 
 2, ch. 21, § 1 to 6, p. 781 to 880. See, also, Bartsch w. Atwater, 1 Con- ' 
 nect. R, 409. 
 
 a J. Voet, ad Pand. Lib. 4, tit, 1, § 29, p. 240. 
 
 3 See Casaregis, Disc. 179, ^ 60, 61. 
 
 * Huberus, Lib. 1, tit. 3, ^ 3, 7 ; J. Yqet,, De Statut. § 9, ch. 2, § 20, 
 p. 275 (edit. 1715) ; Id. p. 332, 333 (edit. 1661.) 
 
 5 2 Boullenois, Observ. 46, p. 462 ; Molin. Coram, ad Cod. Lib. 1, tit. 
 1, ]. 1 ; Conclus. de Stat. Tom. 3, p. 554 (edit. 1681.) 
 
192 BILLS OF EXCHANGE. [CH. V. 
 
 § 162. Burgundus says : Idem ergo de solutionibus 
 dicendum ; scilicet, ut in omnihuis, quce ex ea suntyuut inde 
 oriuntur, aut circa illam consistunt, aut aliquo modo affinia 
 sunt, consuetudinem loci spectemus, uhi eandem implendam 
 convenit. Itaque ex soluiione sunt solemnia, valor rei delitce, 
 pretium monetce ; ex solutione oriuntur prcestatio apochce, 
 antigrapM, similaque. Affinia solutioni sunt, prcescriptio, 
 ablatio rei debitce, consignatio, novatio, delegatio, et ejusmodi} 
 Ea, vero, quce ad complementum vel executionem contractus 
 spectant, vel ahsoMo eo superveniunt, sola a statuto loci 
 dirigi, in quo peragenda est solutio? Many other foreign 
 jurists maintain the same doctrine.^ 
 
 § 163. In England and America the same rule has 
 been adopted, and acted on with a most liberal justice.* 
 Thus, infancy, if a valid defence by the Lex loci con- 
 tradus, will be a valid defence everywhere.^ A tender - 
 and refusal, good by the same law, either as a full dis- 
 charge, or as a present fulfilment of the contract, will 
 be respected everywhere.^ Payment in paper money 
 bills, or in other things, if good by the same law, will 
 be deemed a sufficient payment everywhere.' And, on 
 
 1 Story on Conflict of Laws, ^ 331 a ; Burgundus, Tract. 4, n. 27, 28, 
 p. 114 to 116. 
 
 2 Id. n. 29, p. 116. 
 
 3 3 Burge, Comm. on Col. and For. Law, Ft. 2, ch. 31, ^ 7, p. 874 to 
 876. 
 
 4 Story on Conflict of Laws, § 332 ; 2 Kent, Comm. Lect. 39, p. 459 
 (3d edit.) ; Potter v. Brown, 5 East, 124 ; Dwarris on Stat. Pt. 2, p. 650, 
 651 ; 2 Bell, Comm. § 1267, p. 691, 692 (4th edit.) ; Id. p. 688 (5th 
 edit.) 
 
 5 Thomson v. Ketchum, 8 Johns. R. 189 ; Male v. Roberts, 3 Esp. R. 
 163. * 
 
 6 Warder v. Aiell, 2 Wash. Virg. R. 282, 293, &c. 
 
 7 Warder v. Arell, 2 Wash. Virg. R. 282, 293 ; 1 Brown, Ch. R. 
 376 ; Seaiight v. Calbraith, 4 Dall. 325 ; Bartsch v, Atwater, 1 Connect. 
 R. 409. 
 
CH. v.] RIGHTS AND DUTIES OP PARTIES. 193 
 
 the other hand, where a payment by a negotiahle Bill 
 or Note is, hy the Lex loci, held to be conditional pay- 
 ment only, it will be so held, even in States where 
 such payment under the domestic law would be held 
 absolute.' So, if, by the law of the place of a contract 
 (even although negotiable,) equitable defences are al- 
 lowed in favor of the Maker, any subsequent indorse- 
 ment will not change his rights in regard to the' Hold- 
 er.® The latter must take it cum onere? 
 
 § 164. The case of an acceptance of a Bill of Ex- 
 change in a foreign country affords another illustration. 
 Although by our law it is absolute and binding in 
 every event ; yet, if by that of the foreign country it 
 is merely a qualified contract, it is governed by that 
 law in all its consequences.* Acceptances are deemed 
 contracts in the country where they are made ; and the 
 payments are regulated by the law thereof.^ 
 
 § 165. The converse doctrine is equally well esta- 
 blished, namely, that a discharge of a contract by the 
 law of a place where the contract was not made, or to 
 be performed, will not be a discharge of it in any other 
 country.^ Thus, it has been held in England, that a 
 
 1 Bartsch v. Atwater, 1 Connect. E. 409. See ' other cases cited, 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21, ^ 7, p. 876 to 878. 
 
 2 Story on Conflict of Laws, § 317. Ante, \ 158. 
 
 3 Dry V. Winter, 16 Martin, R. 277. See, also, Evans v. Gray, 13 Mar- 
 tin, R. 475 ; Charters v. Cairnes, 16 Martin, R. 1. ' 
 
 4 Story on Conflict of Laws, ^ 333 ; Burrows v. Jeraino, 2 Str. R. 733 ; 
 S. C. 2 Eq. Abridg. 525 ; Worcester Bank v. Wells, 8 Mete. R. 107. 
 Sob Van Clesf i'. Therasson, 3 Pick. R. 13. 
 
 5 Lewis V. Owen, 4 B. & Aid. 654 ; 5 Pardessus, § 1495; Story on 
 Conflict of Laws, § 307, 317 ; Cooper v. Earl of Waldegrave, 3 Beavan, 
 R. 282 ; Lizaidi v. Cohen, 3 Gill, R. 430 ; Post, ^ 265. 
 
 6 Story on Conflict of Laws, § 342. See 2 Bell, Comm. ^ 1267, p. 691 
 to 695 (4th edit.) ; Id. p. 688 to 692 (5th edit.) ; Phillips v. Allan, 8 B. & 
 
 B. OF EX. 17 
 
194 BILLS OF EXCHANGE. [CH. V. 
 
 discharge of a contract made in England, under an 
 insolvent act of the State of Maryland, is no bar to a 
 suit upon the contract in the Courts of England.' On 
 that occasion. Lord Kenyon said : " It is impossible to 
 say, that a contract made in one country, is to be 
 governed by the laws of another. It might as well 
 be contended, that, if the State of Maryland had 
 enacted that no debts due from its own subjects to the 
 subjects of England should be paid, the plaintiff would 
 have been bound by it. This is the case of a contract, 
 •lawfully made by a subject in this country, which he 
 yesorts to a court of justice to enforce ; and the only 
 answer given is, that a law has been made in a foreign 
 country to discharge these defendants from their debts 
 on condition of their having relinquished all their pro- 
 perty to their creditors. But how is that an answer 
 to a subject of this country, suing on a lawful contract 
 made here ? How can it be pretended, that he is 
 bound by a condition to which he has given no assent, 
 either express or implied?"^ In America the same 
 doctrine has obtained the fullest sanction.^ It is also 
 clearly established in Scotland.'' 
 
 Cressw. 479 ; Lewis v. Owen, 4 Barn. & Aid. 654 ; 3 Burge, Comm. on 
 Col. and For. 'Law, Pt. 3, ch. 22, p. 924 to 929 ; Quelin v. Moisson, 
 1 Knapp, R. 265, note ; Rose v. McLeod, 4 S. & D. 311, cited 3 Burge, 
 Comm. ubi supra, p. 927, 928. 
 
 1 Smith V. Buchanan, 1 East, R. 6, 11. 
 
 2 Ibid. ; Lewis v. Owen, 4 Barn. & Aid. 654 ; Phillips v. Allan, 8 Barn. 
 & Cressw. 477. 
 
 3 Van Rangh v. Van Arsdaln, 3 Cain. R. 154 ; Frey v. Kirk, 4 Gill & 
 Johns. R. 509 ; Green u. Sarmiento, Peters, Cir. R. 74 ; Le Roy v. 
 Crowninshield, 2 Mason, R. 151 ; Smith u. Smith, 2 Johns. R.235 ; Brad- 
 
 4 2 Bell, Comm. ^ 1287, p. 692, 693 (4th edit.) ; Id. p. 688 to 692 (5th 
 edit.) 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 195 
 
 § 166. The subject of negotiable paper is generally 
 governed by the same principles. Wherever the con- 
 tract between the particular parties is made, the law of 
 the place will operate, as well in respect to the dis- 
 charge, as to the obligation thereof. A nice question, 
 however, has recently arisen on this subject, in a case 
 already mentioned.' A negotiable Note was made at 
 New York between persons resident there, and was 
 payable generally ; and the Payee subsequently in- 
 dorsed the Note to a citizen of Massachusetts, by 
 whom a suit was brought in the State Court of the 
 latter State against the Maker. One point of the 
 argument was. Whether a discharge of the Maker, 
 under the insolvent laws of New York, operated as a 
 bar to the suit ? The case was decided upon another 
 ground. But the Court expressed a clear opinion, that 
 it did not ; and said ; " It is a debt payable anywhere, 
 by the very nature of the contract ; and it is a promise 
 to whoever shall be the Holder of the Note." " The 
 Promisor became, immediately upon the indorsement, 
 the Debtor to the Indorsee, who was not amenable to 
 the laws of New York, where the discharge was ob- 
 tained." ^ 
 
 § 167. It is difficult (as has been already intimated) 
 to perceive the ground, upon which this doctrine can be 
 maintained, as a doctrine of public law.^ The Court 
 
 ford V. Farrand, 13 Mass. K. 18 ; 2 Kent, Coram. Lect. 37, p. 392, 393 ; 
 Id. Lect. 39, p. 458, 459 (3d edit.); 3 Bell, Coram. ^ 1267, p. 692, 693 
 (4th edit.) ; Id. p. 688 to 692 (5th edit.) ; 3 Burge, Coram, on Col. and 
 For. Law, Pt. 2, ch. 22, p. 924 to 929 ; Rose v. McLeod, 4 S. & D. R. 
 311, cited ia 3 Burge, Coram. 928, 929. 
 
 1 Ante, § 158 ; Story on Conflict of Laws, § 343 ; Id. § 317, 340. 
 
 2 Braynard v. Marshall, 8 Pick. R. 194. See Ogden v. Saunders, 13 
 Wheaton, R. 358, 362 to 364 ; Story on Conflict of Laws, § 317, 340. 
 
 3 Ante, § 158 ; Story on Conflict of Laws, § 344 ; Id. § 340. 
 
196 BILLS OP EXCHANGE. [CH. V. 
 
 admit, that a debt contracted in New York, and not 
 negotiable, would be extinguished by such a discharge ; 
 although such a debt is by its very nature payable 
 everywhere, as debts have no locality. As between the 
 original parties, (the Maker and the Payee,) the same 
 result would follow. How, then, can the indorsement 
 vary it ? It does not create a new contract between 
 the Maker and the Indorsee, in the place of the indorse- 
 ment. The rights of the Indorsee .spring from and 
 under the original contract, and are a component part 
 of it. The original contract promises to pay the In- 
 dorsee, as much as the Payee, and from the first of its 
 existence. The indorsement is but a substitution of 
 the Indorsee for the Payee ; and it transfers over the old 
 liability, and creates no new liability of the Maker.^ If 
 the indorsement created a new contract, in the place 
 where it was made, between the Maker and the Indor- 
 see, then the validity, obligation, and interpretation of 
 the contract would be governed by the law of the 
 place of the indorsement, and not by that of Ihe place 
 where the Note was originally made. It would not, 
 then, amount to a transfer of the old contract, but to 
 the creation of a new one, which, from a conflict of laws, 
 not unusual in different States, would, or might, involve 
 obligations and duties wholly different from, and even 
 incompatible with, the original contract. Nay, the 
 Maker might, upon the same instrument, incur the most 
 opposite responsibilities to different Holders, according 
 to the law of the different places where the indorsement 
 might be made.^ 
 
 1 Pothier de Change, art. 22 ; Story on Conflict of Laws, ^ 317. 
 
 2 Story on Conflict of Laws, § 314, 316, 317. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES, 197 
 
 § 168. Such a doctriue has never been propounded 
 in any Common Law authority, nor even been supported 
 by the opinion of any foreign jurist. The same principle 
 would apply to general negotiable acceptances, as to ne- 
 gotiable Notes ; for the Maker stands in the same pre- 
 dicament as the Aceeptor. Yet no one ever supposed, 
 that an indorsement, after an acceptance, ever varied 
 the rights or obligations of the Acceptor. It is, as to 
 all persons, who become Holders, in whatever country, 
 treated as a contract made by the Acceptor in the 
 country where such acceptance is made.* Yet, the ac- 
 ceptance being general, payment may be required in 
 any place, where the Holder shall demand it. The 
 other point, that the indorsement was to a citizen of 
 another State, is equally inadmissible. The question is 
 not. Whether he is bound by the laws of New York 
 generally ; but, Whether he can, in opposition to them, 
 avail himself of a contract, made under the sovereignty 
 of that State, and vary its validity, obligation, inter- 
 pretation, and negotiability, as governed by those laws. 
 If the Payee had been a citizen of Massachusetts, and 
 the Note had been made by the Maker in New York, 
 there could be no doubt, that the contract would still 
 be governed by the laws of New York, in regard to the 
 Payee. What difference, then, can it make, that the 
 Indorsee is a citizen of another State, if he cannot show 
 that his contract has its origin there ? In short, the 
 doctrine of this case is wholly repugnant to that main- 
 tained by the same Court in another case, which was 
 most maturely considered, and in which the argument 
 in its favor was repelled. The Court there declared 
 
 1 Story on Conflict of Laws, & 345 ; Id. § 314, 317. 
 17* 
 
198 BILLS OF EXCHANGE. [CH, V. 
 
 their opinion to be, that full effect ought to be given to 
 such discharges, as to all contracts made within the 
 State where they are authorized, although the creditor 
 should be a citizen of another State.' 
 
 § 169. The Supreme Court of Louisiana have adopted 
 the same reasoning; and held, that, where a negotiable 
 Promissory ]S[ote was made in one State, and was in- 
 dorsed in another State to a citizen of the latter, the 
 contract was governed by the law of the place where 
 the Note was made,, and not by that of the place where 
 the indorsement was made. " We see nothing," (said 
 the Court,) " in the circumstance of the rights of one of 
 the parties being transferred to the citizen of another 
 State, which can take the case out of the general prin- 
 ciple." "It is a demand made under an agreement (a 
 Note) entered into in a foreign State ; and, consequently, 
 the party, claiming rights under it, must take it with 
 all the limitations, to which it was subject in the place 
 where it was made ; and that although he be one of our 
 citizens.-" ^ This is certainly in conformity to what is 
 deemed settled doctrine in England, as well as in some 
 other States in America.^ It was taken for granted by 
 the Supreme Court of the United States, to be the true 
 doctrine, in the case of a negotiable Bill of Exchange, 
 in which the Drawer's responsibility was supposed to 
 be governed by the law of the place where the Bill was 
 drawn, notwithstanding an indorsement* in another 
 
 1 Blanchard v. Russell, 13 Mass. R. 1, 11, 12. See, also, Prentiss v. 
 Savage, 13 Mass. R. 20, 23, 24 ; Story on Conflict of Laws, § 317, 340. 
 
 8 Story on Conflict of Laws, § 346; Ory v. Winter, 16 Martin, R. 277; 
 Sherrill v. Hopkins, 1 Cowen, R. 103 ; Story on Conflict of Laws, § 317, 
 340.. 
 
 3 See Blanchard v. Russell, 13 Mass. R. 12 ; Ogden v. Saunders, 12 
 Wheaton, R. 360 ; Potter v. Brown, 5 East, R. 123, 130. 
 
CH. v.] RIGHTS AND DUTIES OF PARTIES. 199 
 
 country ; ' and also by the Court of King's Bench in 
 England, in a case, in which the right to a Bank of 
 England Note was supposed to be governed by the law 
 of England, notwithstanding a transfer of the same had 
 been subsequently made in France,^ 
 
 § 170. Pardessus has laid down a doctrine equally 
 broad. He says, that it is by the law of the place, 
 where a Bill of Exchange is payable, that we are to 
 ascertain when it falls due, the days of grace belonging 
 to it, the character of these delays, whether for the 
 benefit of the Holder, or of the debtor ; in one word, 
 every thing which relates to the right of requiring pay- 
 ment of a debt, or the performance of any other en- 
 gagement, when the parties have not made any stipu- 
 lation to the contrary.^ And it is of little consequence 
 whether the person who demands payment is the cre- 
 ditor who made the contract, or an assignee of his 
 right J such as the Holder of a Bill of Exchange by 
 indorsement. This circumstance makes no change in 
 regard to the debtor. The Indorsee cannot require 
 payment in any other manner than the original creditor 
 could.^ And he applies this doctrine to the case of 
 successive indorsements of Bills of Exchange, made in 
 different countries, stating, that the rights of each 
 
 1 Slaeum v. Pomeroy, 6 Cranch, K. 122. 
 
 2 De la Chautnette v. The Bank of England, 9 Barn. & Cressw. 208 ; 
 S. C. 2 Barn. & Adolph. 385 ; Story on Conflict of Laws, § 353. See, 
 also, 2 Bell, Comm. § 1267, p. 692, 693 (4th edit.) ; Id. p. 688 to 692 (5th 
 edit.) — " Quid si de literis cambii ineidat qusestio, (says Paul Voet,) Quis 
 locus spectandus 1 Is locus, ad quern sunt destinatse, et ibidem accepta- 
 tffi." P. Voet, De Stat. § 9, ch. 2, § 14, p. 271 (edit. 1715) ; Id. p. 327 
 (edit. 1661) ; Story on Conflict of Laws, § 317. 
 
 3 Stor^ on Conflict of Laws, § 314, 316, 347, 361 ; Pardessus, Droit 
 Comm. Tom. 5, art. 1495, 1498 to 1500; Ante, ^ 188 ; Post, ^ 177. 
 
 i Ibid. 
 
200 BILLS OP EXCHANGE. [CH. V. 
 
 Holder are the same as those of the original Payee, 
 against the Acceptor.^ He adds, also, that the effects 
 of an acceptance are to he determined by the law of 
 the place where it has been made ; ^ that every indorse- 
 ment subjects the Indorser to the law of the place 
 where it has been made ; and that it governs his re- 
 sponsibility accordingly.^ 
 
 § 171. Qliestions have also arisen, whether nego- 
 tiable Notes and Bills, made in one country, are trans- 
 ferable in other countries, so as to found a right of 
 action in the Holder against the other parties. Thus, 
 a question occurred in England, in a- case where a 
 negotiable Note, made in Scotland, and there negotia- 
 ble, was indorsed, and a suit brought in England by 
 the Indorsee against the Maker, Whether the action 
 was maintainable. It was contended, that the Note, 
 being a foreign Note, was not within the statute of 
 Anne (3 and 4 Ann. ch. 9,) which made Promissory 
 Notes, payable to order, assignable and negotiable ; 
 for that statute applied only to inland Promissory 
 Notes. But the Court overruled the objection, and 
 held the Note suable in England by the Indorsee, as 
 the statute embraced foreign, as well as domestic 
 Notes.* In another case, a Promissory Note, made in 
 
 1 Story on Conflict of Laws, § 314, 316, 347,, 361 ; Pardessus, Droit 
 Comm. Tom. 5, art. 1495, 1498 to 1500 ; Ante, VlS8 ; Post, § 177. 
 
 2 Id. art. 1495. 
 
 3 Id. art. 1499. 
 
 4 Story on Conflict of Laws, § 353 ; Milne v. Graham, 1 Barn. & 
 Cressw. 192. — It does not distinctly appear upon the Report, whether 
 the indorsement was made in Scotland or in England. But it was proba- 
 bly in England. But see Carr v. Shaw, Bayley on Bills, p. 16, note 
 (5th edit. 1830) ; Id. p. 22 (American edition, by Phillips & Sewall, 
 1836.) 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 201 
 
 England, and payable to the Bearer, was transferred in 
 France ; and the question was made. Whether the 
 French Holder could maintain an action thereon in 
 England ; such Notes being by the law of France 
 negotiable ; and it was held that he might.^ But in 
 each of these cases the decision was expressly put upon 
 the provisions of the statute of Anne respecting Pro- 
 missory Notes, leaving wholly untouched the general 
 doctrine of international law. 
 
 § 172. In a more recent case, which has been already 
 cited,^ a negotiable Note was made in France, and in- 
 dorsed in France, and afterwards a suit was brought 
 thereon by the Indorsee against the Maker in England. 
 One question in the case was, Whether a blank indorse- 
 ment in France was, by the law of France, sufficient to 
 transfer the property in the Note, without any other 
 formalities. It was held, that it was not sufficient. But 
 it seems to have been taken for granted, that, if the 
 Note was well negotiated by the indorsement, a suit 
 might be maintahied thereon in England by the In- 
 dorsee in his own name. On that occasion, the Court 
 said : " The rule which applies to the case of contracts 
 made in one country, and put in suit in the ccfurts of 
 law of another country, appears to be this ; that the 
 interpretation of the contract must be governed by the 
 law of the country where the contract was made (Lex 
 hci contractus) ; the mode of suing, and the time within 
 which the action must be brought, must be governed 
 
 1 De la Chaumette v. The Bank of England, 2 Barn. & Ado] ph. E. 
 385 ; S. C. 9 Barn. & Cressw. 208 ; and see Chitty on Bills, p. 551, 652 
 (8th edit.) ; Story on Conflict of Laws, § 346.- 
 
 2 Ante, § 156; Story on Conflict of Laws, § 353 a; id. ^ 316 a. 
 
202 BILLS OF EXCHANGE. [CH, V. 
 
 by the law of the country where the action is brought. 
 [In ordinandis Judiciis, hci consududo, ubi agiiur.) This 
 distinction has been clearly laid down and adopted in 
 the late case of Be la Vega v. Vianna. See, also, the 
 case of the British Linen Company v. Drummond, 
 where the different authorities are brought together. 
 The question, therefore, is. Whether the law of Prance, 
 by which the indorsement in blank does not operate as 
 a transfer of the Note, is a rule which governs and 
 regulates the interpretation of the contract, or only 
 relates to the mode of instituting and conducting the 
 suit; for, in the former case, it must be adopted by 
 our courts, in the latter it may be altogether disre- 
 garded, and the suit commenced in the name of the 
 present plaintiff. And we think the French law on the 
 point above mentioned, is the law by which the con- 
 tract is governed, and not the law which regulates the 
 mode of suing. If the indorsement has not operated as 
 a transfer, that goes directly to the point, that there is 
 no contract upon which the plaintiff can sue. Indeed, 
 the difference in the consequences that would folloWj 
 if the plaintiff sues in his own name, or is compelled 
 to use the name of the former Indorser, as the plaintiff 
 by procuration, would be very great in many respects, 
 particularly in its bearing on the law of set-off; and, 
 with reference to those consequences, we think the law 
 of France falls in with the distinction above laid down, 
 that it is a law which governs the contract itself, not 
 merely the mode of suing. We therefore think, that 
 our courts of law must take notice, that the plaintiff 
 could have no right to sue in his own name upon the 
 contract in the courts of the country where such con- 
 tract was made ; and, that, such being the case there, 
 
CH. v.] EIGHTS AND DUTIES OF PARTIES. 203 
 
 we must hold, in our courts, that he can have no right 
 of suing here." ' 
 
 § 173. Several other cases maybe put upon this sub- 
 ject. In the first place,, suppose a Note, negotiable by 
 the law of the place where it is made, is there trans- 
 ferred by indorsement ; can the Indorsee maintain an 
 action in his own name against the Maker in a foreign 
 country, (where both are found,) in which there is no 
 positive law on the subject of negotiable Notes, appli- 
 cable to the case ? If he can, it must be upon the 
 ground, that the foreign tribunal would recognize the 
 validity of the transfer by the indorsement, according to 
 the law of the place where it is made. According to 
 the doctrine maintained in England, as choses in action 
 are by the Common Law (independent of statute) inca- 
 pable of being transferred over, it might be argued, 
 that he could not maintain an action, notwithstanding 
 the instrument was well negotiated, and transferred by 
 by the law of the place of the contract.^ So far as this 
 principle of the non-assignability of choses in action 
 would affect transfers in England, it would seem reason- 
 able to follow it. But the difficulty is, in applying it 
 to transfers made in a foreign country, by whose laws 
 the instrument is negotiable, and capable of being 
 transferred, so as to vest the property and right in the 
 assignee. In such a case, it would seem, that the more 
 correct rule would be, that the Lex loci contractus ought 
 to govern ; because the Holder under the indorsement 
 
 1 Trimbey v. Vignier, 1 Bing. N. Cas. 151, 159, 160 ; Story on Conflict 
 of Laws, § 316 a, 316 J, 317. 
 
 2 Story on Conflict of Laws, § 354. See 2 Black. Comm. 442 ; Jeffrey 
 V. McTaggart, 2 Barn. & Cressw. 22, 23 ; Innes v. Dunlop, 8 T. R. 595. 
 See, also, Jeffrey v. MeTaggart, 6 Maule & Selw. K. 126 ; Story on Con- 
 flict of Laws, § 565, 566. 
 
204 
 
 BILLS OF EXCHANGE. [CH. V. 
 
 has an immediate and absolute right in the contract 
 vested in him, as much as he would have in goods trans- 
 ferred to him. Under such circumstances, to deny the 
 legal effect of the indorsement is, to construe the. obli- 
 gation, force, and effect of a contract, made in one place 
 bj the law of another place. The indorsement, in the 
 place where it is made, creates a direct contract be- 
 tween the Maker and the first Indorsee ; and, if so, 
 that contract Ought to be enforced between them every- 
 where. It is not a question, as to the form of the re- 
 medy, but as to the right.-' 
 
 § 174. In the next place, let us suppose the case of 
 a negotiable Note, made in a country by whose laws it 
 is negotiable, and actually indorsed in another, by whose 
 laws a transfer of Notes by indorsement is not allowed. 
 Could an action be maintained by the Indorsee against 
 the Maker, in the courts of either country ? If it could 
 be maintained in the country, whose laws do not allow 
 such a transfer, it must be upon the ground, that the 
 original negotiability, by the Lex loci coyiradus, is per- 
 mitted to avail, in contradiction to the Lex fori. On 
 the other hand, if the suit should be brought in the 
 country where the Note was originally made, the same 
 objection might arise, that the transfer was not allowed 
 by the law of the place where the indorsement took 
 place. But, at the same time, it may be truly said, 
 that the transfer is entirely in conformity to the intent 
 of the parties, and to the law of the original contract.^ 
 
 1 See Trimbey J). Vignier, 1 Bing. New Cases, 159 to 161; Story on 
 Conflict of Laws, § 353 a, — where the same reasoning seems to have ap- 
 plied, — § 565, 566. 
 
 2 Story on Conflict of Laws, § 356. See Chitty on Bills, ch. 6, p. 218, 
 219 (8th London edit.) See Kames on Equity, B. 3, ch. 8, § 4 ; Story on 
 Conflict of Laws, ^ 353, 354. — In the cases of Milne v. Graham (1 Barn. 
 
OH. v.] EIGHTS AND DUTIES OP PARTIES. 205 
 
 § 175. la the next place, let us suppose the case of 
 a Note, not negotiable by the law of the place where it 
 is made, but negotiable by the law of the place where 
 it is indorsed. Could an action be maintained, in either 
 country, by the Indorsee against the Maker ? It would 
 seem, that, in the country where the Note was made, 
 it could not ; because it would be inconsistent with its 
 own laws. But the same difficulty would not arise in 
 the country where the indorsement was made; and, 
 therefore, if the Maker used terms of negotiability in 
 his contract, capable of binding him to the Indorsee, 
 there would not seem to be any solid objection to giving 
 the contract its full effect there. And so it has been 
 accordingly adjudged, in the case of a Note made in 
 Connecticut, payable to A., or order, but, by the laws 
 of that State, not negotiable there, and indorsed in New 
 York, where it was negotiable. In a suit, in New York, 
 by the Indorsee against the Maker, the exception was 
 taken, and overruled. The Court, on that occasion, 
 said, that personal contracts, just . in themselves, and 
 lawful in the place where they are made, are to be 
 fully enforced, according to the law of the place, and 
 the intent of the parties, is a principle which ought to 
 be universally received and supported. But this ad- 
 mission of the Lex loci contractus can have reference 
 only to the nature and construction of the contract, and 
 its legal effect, and not to the mode of enforcing it. 
 And the Court ultimately put the case expressly upon 
 the ground, that the Note was payable to the Payee, or 
 
 & Cressw. 192,) De la Chaumette v. Bank of England (2 Barn. & Adolph. 
 385,) and Trimbey v. Vignier (I Bing. N. Cas. 151,) the promissory notes 
 were negotiable in both countries, as well where the note was made, as 
 where it was transferred. 
 
 B. OF EX. 18 
 
206 BILLS OF EXCHANGE. [CH. V. 
 
 order; and, therefore, the remedy might well be pur- 
 sued, according to the law of New York, against a 
 party, who had contracted to pay to the Indorsee.' But, 
 if the words, " or order," had been omitted in the Note, 
 so that it had not appeared that the contract between 
 the parties originally contemplated negotiability, as an- 
 nexed to it, a different question might have arisen, 
 which would more properly come under discussion in 
 another place j since it seems to concern the interpret- 
 ation and obligation of contracts, although it has some- 
 times been treated as belonging to remedies.^ 
 
 § 176. As to Bills of Exchange, it is generally re- 
 quired, in order to fix the responsibility of other par- 
 ties, that, upon their dishonor, they should be duly pro- 
 tested by the Holder, and due notice thereof be given 
 to such parties. And the first question, which naturally 
 arises, is. Whether the protest and notice should be in 
 the manner, and according to the forms, of the place 
 in which the Bill is drawn, or according to the forms of 
 the place in which it is payable. By the Common 
 Law, the protest is to be made at the time, in the man- 
 ner, and by the persons, prescribed in the place where 
 the Bill is payable.^ But, as to the necessity of mak- 
 ing a demand and protest, and the circumstances, under 
 which notice may be required or dispensed with, these 
 are incidents of the original contract, which are govern- 
 
 1 Story on Conflict of Laws, § 357 ; Lodge v. Phelps, 1 Johns. Cas. 
 139 ; S. C. 2 Kames, Cas. in Error, 321. See Karnes on Equity, B. 3, 
 ch. 8, § 4 ; 3 Kent, Coram. Lect. 44, p. 88 (4th edit.) 
 
 2 See Chitty on Bills, oh. 6, p. 218, 219 (8th London edit.) ; 3 Kent, 
 Comm. Lect. 44, p. 77 (4th edit.) ; Story on Conflict of Laws, § 253 a. 
 
 3 Story on Conflict of Laws, § 360 ; Chitty on Bills, p. 193, 506 to 608 
 (8th Lond. edit.) ; Savary, Le Parfait N6gociant, Tom, 1, Part 3, Liv. 1, 
 ch. 14, p. 851. 
 
CH. v.] EIGHTS AND DTJTIEkS OF PARTIES. 207 
 
 ed by the law of the place, where the Bill is drawn.' 
 They constitute implied conditions, upon which the 
 liability of the Drawer is to attach, according to the 
 Lex loci contractus ; and, if the Bill is negotiatedj the 
 like responsibility attaches upon each successive Indor- 
 ser, according to the law of the place of his indorsement ; 
 for each indorser is treated as a new Drawer.^ The 
 same doctrine, according to Pardessus, prevails in 
 France.^ 
 
 § 177. Upon negotiable instruments, it is the custom 
 of most commercial nations to allow some time for pay- 
 ment, beyond the period fixed by the terms of the 
 instrument. This period is diiFerent in different nations ; 
 
 ' Chitty on Bills, p. 506 to 508 (8th Lond. edit. 1833) ; 1 Boullenois, 
 Observ. 23, p. 531, 532 ; Post, \ 285, 296 366, 391 ; Aymor «. Sheldon, 
 12 Wend. R. 439 ; Pardessus, Droit Comm. Tom. 5, art. 1488, 1491 
 to 1499. 
 
 2 Bayley on Bills, oh. A., p. 78 to 86, 5th edit. 1830 (5th Amer. edit. 
 1826, by Phillips & Sewall) ; Chitty on Bills, ch. 6, p. 266, 267, 370 (8lh 
 Lond. edit. 1833) ; Ballingalls v. Gloster, 3 East, R. 481 ; Story on Con- 
 flict of Laws, ^ 314 to 317. 
 
 3 Pardessus, Droit Comm. Tom. 5, art. 1488, 1489, 1496, 1499; Henry 
 on Foreign Law, 53, Appx. p. 239 to 248 ; Pothier de Change, n. 155. — 
 Boullenois admits, that the protest ought to be according to the law of the 
 place where the Bill is payable. But, in case of a foreign Bill, indorsed 
 by several indorsements in different countries, he contends that the time, 
 within which notice or recourse is to be had upon the dishonor, is to be 
 governed by a different rule. Thus, he supposes a Bill drawn in Eng- 
 land on Paris in favor of a French Payee, who indorses it to a Spaniard 
 (in Spain,) and he to a Portuguese (in Portugal), and he to the Holder ; 
 and then says, that the Holder is entitled to have recourse against the 
 Portuguese, within the time prescribed by the law of France, because the 
 Holder is there to receive payment ; the Portuguese is to give notice to 
 the Spaniard within the time prescribed by the law of Portugal, because 
 that is the only law, with which he is presumed to be acquainted, &c. ; 
 and so, in regard to every other indorser, he is to have recourse within the 
 period prescribed by the law of the place, where the indorsement was 
 made, and not of the domicil of the party indorsing. 1 Boullenois, Observ. ' 
 20, p. 370 to 372 ; Td. Observ. 23, p. 531, 532. 
 
208 BILLS OF EXCHANGE, [CH. V. 
 
 in some, it is limited to three days ; in others, it ex- 
 tends as far as eleven days.' The period of indulgence 
 is commonly called the d^ys of grace ; as to which, the 
 rule is, that the usage of the place, on which a Bill is 
 drawn, and where payment of a Bill or Note is to be 
 made, governs, as to the number of the days of grace to 
 be allowed thereon.® 
 
 1 Story on Conflict of Laws, % 361; Bayley on Bills, p. 234, 235 (5th 
 Amer. edit, by Phillips & Sewall) ; Chitty on Bills, p. 407 (8th Lond. 
 edit.) ; Id. p. 193. 
 
 2 Bank of Washington v. Triplett, 2 Peters, Sup. C. R. 30, 34 ; Chitty 
 on Bills, ch. 4, p. 409 (8th Lond. edit.) ; Id. ch. 5, p. 191, 193 ; S. P. 
 2 BouUenois, Observ. 23, p. 531, 532; and Mascard. Conclus. 7, n. 72, 
 there cited ; Ante, § 155, 170. The case of Eothsehild «. Currie (1 
 Adolph. & Ellis, New. Rep. 43) appears to contradict the doctrine stated 
 in the text. See Post, ^ 296, note 2, where the circumstances of this case 
 are stated, and the judgment of the Court is commented upon. 
 
CH. VI.] CONSIDEUATION OF. 209 
 
 CHAPTER VI. 
 
 BILLS OF EXCHANGE — CONSIDERATION OF. 
 
 § 178. Having thus ascertained the general rights, 
 obligations, and duties of the different parties to Bills 
 of Exchange, and the operation of the Lex loci contractus, 
 which is resorted to, in order to ascertain and regulate 
 the rights, obligations, and duties growing out of them, 
 we may next proceed to the examination of the ques- 
 tion — What consideration is, in point of law, required in 
 order to give those rights, obligations, and duties a solid 
 support, so as to make them capable of being enforced 
 and vindicated in courts of justice ? Bills of Exchange 
 enjoy, as has been already suggested,' the privilege, 
 conceded to no unsealed instruments, not negotiable, 
 of being presumed to be founded upon a valid and valu- 
 able consideration. Hence, between the original par- 
 ties, and a fortiori, hetween others, who, by indorsement 
 or otherwise, become bond fide Holders, it is wholly un- 
 necessary to establish, that a Bill of Exchange was 
 given for such a consideration; and the burden of proof 
 rests upon the other party to establish the contrary, 
 and to rebut the presumption of validity and value, 
 which the law raises for the protection and support of 
 negotiable paper.® Still, however, this does not dis- 
 
 1 Ante, § 14, 15. 
 
 2 Chilly on Bills, ch. 3, § 1, p. 78 to 85 (8th edit. 1833) ; Id. p. 90 to 
 92 ; Collins v. Martin, 1 Bos. & Pull. R. 651 ; Holliday «. Atkinson, 5 
 
 18* 
 
210 BILLS OF EXCHANGE. [CH. VI. 
 
 pense, as we shall presently see, with the existence of 
 an actual, valid, and valuable consideration to support 
 the Bill ; but it only shifts the burden of proof from the 
 plaintiff to the defendant.^ 
 
 § 179. But, besides the question of the existence of 
 a consideration, another may arise ; In what cases, and 
 between what parties, the consideration, on which the 
 Bill is founded, or on which it has been transferred, is 
 inquirable into ? And under what circumstances may 
 the want, or failure, or illegality of the consideration 
 be insisted on, by way of defence or bar to the right of 
 recovery on the Bill, not only l^etween the original par- 
 ties, but also between them and others possessing a 
 derivative title thereto, under an indorsement, or other- 
 wise, from them ? ^ Let us, therefore, in the first place, 
 examine what consideration, in point of law, is neces- 
 sary, to give legal operation and support to a Bill of 
 Exchange ; and, in the next place, between what par- 
 ties, and under what circumstances, the consideration is 
 inquirable into, as a defence or bar to an action brought 
 thereon. 
 
 § 180. And, in the first place, as to what considera- 
 tion is necessary to maintain a Bill of Exchange. At 
 the Common Law (and the same rule pervades the 
 Roman Law and the ^ foreign Commercial Law,^ ) a 
 valuable consideration is, in general, necessary to sup- 
 
 Barn. & Cressw. 501 ; Bristol v. Warner, 19 Conn. R. 7 ; Ford v. Beech, 
 1 1 Adolph. & Ellis, R. (new series) 854 ; 6 Welsby, Hurlstone & Gor- 
 don, 63. 
 
 1 Post, ^ 193, 194 ; Jennison «. Stafford, 1 Gushing, R. 168. 
 
 3 Chitty on Bills, ch. 3, § 1, p. 78 to 85 (8th edit. 1833) ; Id. p. 90 to 
 93; Collins v. Martin, 1 Bos. & Full. R. 651 ; HoUiday v. Atkinson, 5 
 Barn. & Cressw. 501. 
 
 3 Pothier on Oblig. n. 4, p. 42. 
 
CH. TI.J CONSIDERATION OF. 211 
 
 port every contract, otherwise it is treated as a nude 
 and void pact, Nudum pactum ; and the maxim, in such 
 a case is. Ex ntido pado non oritur actio} This rule is 
 equally applicable,' under the limitations before sug- 
 gested, to Bills of Exchange, as it is to other contracts.^ 
 And there must not only be a consideration, but in the 
 just sense of the law, it must be legal, as well as ade- 
 quate.^ 
 
 § 181. What consideration is or is not deemed valu- 
 able and sufficient, in point of law, to support contracts 
 generally, or Bills of Exchange in particular, may be 
 stated in a few words. Eirst, a consideration founded 
 in mere love, or affection, or gratitude, (which in a tech- 
 nical sense, is called a good consideration, in contradis- 
 tinction to a valuable consideration,) is not sufficient to 
 maintain an action on a Bill of Exchange. Thus, a 
 Bill drawn by the Drawer, as a gift to a son or other 
 relative, or to a friend, is not sufficient to sustain the 
 Bill between the original parties.* 
 
 § 182. A mere moral obligation, although coupled 
 with an express promise, is not a sufficient considera- 
 tion to support a Bill between the same parties. It 
 
 ^ Chitty on Bills, ch. 3, § 1, p. 79 to 85 (8th edit. 1833) ; Bayley on 
 Bills, ch. 12, p. 494 to 504 {5th edit. 1830) ; Shaiington v. Strotten, 
 Plowden, R. 308; Dig. Lib. 2, tit. 14, 1. 7, § 4 ; Pothier, Band. Lib. 2, 
 tit. 14, n. 33 ; Pothier on Oblig. n. 4, p. 43 ; Pothier, by Evans, Vol. 2, 
 n. 2, p. 19 to 25. 
 
 2 Chitty on Bills, ch. 3, § 1, p. 78 to 85 (8th edit. 1833) ; Bayley on 
 Bills, ch. 12, p. 494, 495 (5th edit. 1830.) 
 
 3 Chitty on Bills, ch. 3, § 1, p. 78 to 80 (8th edit. 1833) ; Bayley on 
 Bills, ch. 12, p. 494, 495 (5th edit. 1830.) 
 
 4 Chitty on Bills, ch. 3, p. 85, 86, and notes (8th edit. 1833) ; Bayley 
 on Bills, ch. 13, p. 503 to 504 (5th edit. 1830) ; Fisk v. Cox, 18 Johns. 
 R. 145 ; HoUiday v. Atkinson, 5 Barn. & Cressw. 501 ; Blogg v. Pinkers, 
 1 Ryan & Mood. K. 125. But see, contra. Bowers v. Hurd, 10 Mass. R. 
 427. It seems difficult to support this last case upon principle or authority. 
 
212 BILLS OF EXCHANGE. [CH. VI. 
 
 has, indeed, in some cases been broadly laid down, that, 
 where a man is under a moral obligation, which no 
 court of law or equity can enforce, and promises, the 
 honesty and rectitude of the thing is a consideration.-' 
 But this doctrine must be received with many qualifi- 
 cations ; and is now restricted to much narrower limits.^ 
 The true doctrine, as now established, seems to be, that 
 a consideration, which the law esteems valuable, must 
 in all cases exist, in order to furnish a just foundation 
 for an action. Where there is a precedent duty, which 
 would create a sufficient legal or equitable right, if 
 there had been an express promise at the time, or 
 where there is a precedent consideration, which is capar 
 ble of being enforced, and is not extinguished, unless 
 at the option of the party, founded upon some bar or 
 defence, which the law justifies, but does not require 
 him to assert, there an express promise will create or 
 revive a just cause of action.* Thus, for example, if 
 A. has paid a debt due by B., without the request of B., 
 the law will not raise a promise by B., by implication, 
 to repay the money to A. ; but, if B., in consideration 
 thereof, makes an express promise, it is valid and obli- 
 gatory.* So, if a debt is discharged by mere operation 
 of law, without payment, as by the statute of limita- 
 tions, or by a discharge in bankruptcy, an express pro- 
 
 1 Hawkes v. Saunders, Cowp. R. 289 ; Lee v. Muggeridge, 5 Taunt. 
 R. 86 ; Seago v. Deane, 4 Bing. R. 459. 
 
 2 Littlefield v. Shee, 2 Barn. & A.dolph. 811 ; Eastwood v. Kenyon, 11 
 Adolph. & Ell. 438, 450. 
 
 3 See Wennall v. Adney, 3 Bos. & Pull. 24", and the note of the 
 learned Reporters, p. 249, note (a) ; Eastwood v. Kenyon, 11 Adolph. & 
 EU. R. 438 ; Bayley on Bills, ch. 12, p. 504 (5th. edit. 1830) ; Chitty on 
 Bills, oh. 3, p. 84 (8th edit. 1833.) 
 
 * See Serg. Williams's note (1) to Osborne v. Rogers, 1 Saund. R. 
 264 ; Hayes v. Warren, 2 Str. R, 933 ; Stokes v. Lewis, 1 Term R. 20. 
 
CH. VI.] CONSIDERATION OP. 213 
 
 mise by the party to pay it will revive the obligation.' 
 So, if a contract is voidable, but founded in a considera- 
 tion otherwise valuable or sufficient, an express promise 
 to pay it will support and confirm its obligation ; but 
 not, if it be originally void.® Thus, a promise, after age, 
 by a person, to pay a debt not for necessaries, contract- 
 ed during his infancy, will be binding ; and a negotia- 
 ble security given therefor will acquire validity by such 
 new promise or confirmation of it.^ But a promise by 
 a woman, who is sole, to pay a debt, which she had pre- 
 viously contracted, while she was married and under 
 coverture, would not be valid ; because such a contract 
 on her part, is ah origine void, and not merely voidable.'' 
 [So also a note given by a person to an officer of a 
 benevolent society, for his initiation fee as a member, 
 and for his quarterly dues, has been held not to have a 
 sufficient consideration.^] 
 
 § 183. Secondly. What then is a valuable consi- 
 deration in the sense of the law ? It may, in general 
 terms, be said to consist either in some right, interest, 
 profit, or benefit, accruing to the party, who makes the 
 contract, or some forbearance, detriment, loss, responsi- 
 bility, or act, or labor, or service, on the other side.^ 
 And, if either of these exists, it will furnish a sufficient 
 valuable consideration to sustain the drawing, indorsing. 
 
 1 Eastwood V. Kenyoo, II Adolph. & Ellis, 438 ; Hawkes v. Saunders, 
 Cowp. R. 289, 290. 
 
 8 Littlefield v. Shee, 2 Barn. & Adolph. 811 ; Eastwood v. Kenyon, 11 
 Adolph. & Ellis, R. 438. 
 
 3 Hawkes v. Saunders, Cowp. R. 289, 290. Eastwood u. Kenyon, U 
 Adolph. & Ellis, 238. 
 
 * Eastwood V. Kenyon, 11 Adolph. & Ellis, 238 ; Loyd v. Lee, 1 Str. 
 R. 94. 
 
 5 Nash «. Russell, 5 Barbour, Sup. Ct. R.^56. 
 
 B Com. Dig. Action on the Case, Assumpsit, B. 1 to 15. 
 
214 BILLS OF EXCHANGE. [CH. VI. 
 
 or accepting a Bill of Exchange in favor of the Payee 
 or other Holder. Thus, for example, not only money 
 paid, or advances made, or credit given, or the discharge 
 of a present debt, or work and labor done, will constitute 
 a sufficient consideration for a Bill ; but, also, receiving 
 a Bill as security for a debt, or forbearance to sue a 
 present claim or debt, or an exchange of securities, or 
 becoming a surety, or doing any other act at the re- 
 quest, or for the benefit, of the Drawer, Indorser, or 
 Acceptor, will constitute a sufficient consideration for a 
 Bill.' [So also under the charter of a mutual insurance 
 company, the mutual agreement and association of the 
 parties respectively giving notes for premiums in ad- 
 vance, have been held a sufficient consideration for the 
 notes.^] The common case of Bankers receiving Bills 
 of their customers for collection, affords an apt illustra- 
 tion of this doctrine ; for they are deemed holders for 
 value not only to the amount of advances already made 
 by them, either specifically or upon account, but also for 
 future responsibilities incurred upon the faith of them.' 
 So, also, will any act, done at his request, for or to a 
 third person, such as paying the debt of a third person, 
 or forbearing to sue a debt due by such person, or dis- 
 
 1 Com. Dig. Action of Assumpsit, B. 1,2, 4, 5, 9, 10; Bayley on Bills, 
 ch. 12, p. 505 (5th edit. 1830) ; Chitty on Bills, ch. 3, p. 84, 85 (8th edit. 
 1833) ; Bosanquet v. Dudman, 1 Starkie, R. 1 ; Heywood ». W^atson, 4 
 Bing. R. 496 ; Kent a. Lowen, 1 Camp. R. 179, note ; Rolfe v. Caslon, 3 
 H. Bl. 671; Hornblowetu. Proud, 3 Barn. & Aid. 337; Post, ^ 191, 
 
 2 Browne w. Appleby, I Sandford, Superior Ct. N. Y. R. 158 ; Honeo. 
 Allen, Ibid. 171 ; Hone v. Foiger, Ibid. 177. 
 
 8 Bosanquet «. Dudman, 1 Starkie, R. 1 ; Ex parte Bloxham, 8 Ves. 
 531 ; Heywood v. Watson, 4 Bing. R. 496 ; Bramah v. Roberts, 3 Bing. 
 NewCas. 469; Percival v. Frampton, 2 Cromp. Mees. & Rose. 180; 
 Swift V. Tyson, 15 Peters, R. 1, 31, 23 ; Bank of Metropolis v. New Eng- 
 land Bank, 1 Howard, Sup. Ct. R. 339 ; S. C. 17 Peters, R. 174. 
 
CH. VI.] CONSIDERATION OP. 215 
 
 » 
 
 charging such a debt, or guaranteeing his debt, or be- 
 coming liable for his acts or defaults.' A preexisting, 
 debt is equally available, as a consideration, as is a pre- 
 sent sum, or value, given for the Bill.^ Even the settle- 
 ment of a doubtful claim preferred against the party, 
 will be a sufficient and valid consideration, without re- 
 gard to the legal validity of the claim, if fairly made.^ 
 § 184. The objection to a Bill may be, that there is 
 a total want of consideration to support it ; or that there 
 is only a partial want of consideration.* In the first 
 case, it goes to the entire validity of the Bill, and avoids 
 it. In the latter case, it affects the Bill with nullity only 
 pro tanto? The same rule applies to cases where there 
 was originally no want of consideration ; but there has 
 been a subsequent failure thereof, either in whole, or in 
 part. For a subsequent failure of the consideration is 
 
 1 Com. Dig. Action of Assumpsit, B. 3, 11, 15 ; Bayley on Bills, ch. 12, 
 p. 504 (5th edit. 1830) ; Chitty on Bills, ch. 3, p. 80, 84 (8th edit.*1833) ; 
 Popplewell V. Wilson, 1 Str. R. 264 ; Ridout v. Bristow, 1 Tyrw. R. 84; 
 S. C. 1 Cromp. & Jerv. 231. — A promise by an executor or administra- 
 tor, to pay a debt of the intestate or testator, is not valid unless he has 
 assets. Ten Eyck w. Vanderpoel, 8 Johns. R. 93 ; Sohoonmaker v. Roosa, 
 17 Johns. R. 301 ; Bank of Troy «. Topping, 9 Wend. R. 273. But see 
 Ridout V. Bristow, 1 Cromp. & Jerv. 231 ; S. C. 1 Tyrw. 84. 
 
 2 Townsley v. Sumtall, 2 Peters, R. 170 ; Swift ». Tyson, 16 Peters, 
 R. 11. 
 
 3 Russell 11. Cook, 3 Hill, R. 504. 
 
 4 Bayley on Bills, ch. 12, p. 494 to £04 (edit. 1830) ; Id. (Amer. edit. 
 1836, by Sewall & Phillips) p. 531 to 556, where many of the American 
 cases are collected. Swift ». Tyson, 16 Peters, R. 1 ; Post, § 191. 
 
 5 Chitty on Bills, ch. 3, § I, p. 79 to 83 (8th edit.) ; Bayley on Bills, 
 ch. 12, p. 494, 495 (5th edit. 1830) ; Barber «. Backhouse, Peake, R. 61 ; 
 Darnell i). Williams, 2 Stark. R. 166 ; Sparrow v. Chisman, 9 Barn. & 
 Cressw. 241 ; Lewis v. Cosgrave, 2 Taunt. R. 2 ; Wintle v. Crowther, 1 
 Tyrw. R. 213, 216. See Gascoigne v. Smith, McClell. & Y. 338; Ste- 
 phens V. Wilkinson, Barn. & Adolph. 320; Allaire v. Hartshorne, Zabris- 
 kie, N. Jersey, R. 665. 
 
216 BILLS OF EXCHANGE. [CH, VI. 
 
 equally fatal with an original want of consideration, not, 
 indeed, in all cases, but in many cases ; ^ at least, where 
 it is a matter capable of definite computation, and not 
 of unliquidated damages.® So, if a Bill is given as an 
 indemnity, it is a sufficient answer to it, that the party 
 has not been damnified at all, or that the original claim 
 has been extinguished.^ So, if a Bill of Exchange be 
 originally a gift, in whole or in part ; ^ or if it be founded 
 upon a sale of goods, to which the title afterwards fails 
 in whole or in part ; it will be, jpro tanto, void as between 
 those parties.^ 
 
 § 185. In the next place, a Bill of Exchange will be 
 void, where it is founded in fraud, or duress, or imposi- 
 tion, or circumvention, or taking an undue advantage of 
 the party, as where he is intoxicated.^ And this doc- 
 
 1 Chitty on Bills, ch. 3, ^ 1, p. 85 to 88 (8th edit. 1833) ; Bayley on 
 Bills, ch. 12, p. 494 to 496 (5th edit. 1830) ; Jackson v. Warwick, 7 Term 
 R. 121 ; Mann v. Lent, 10 Bairn. & Cressw. 877 ; Day u. Nix, 9 Moore, 
 R. 159. 
 
 2 Day V. Nix, 9 Moore, R. 159 ; Chitty on Bills, ch. 3, p. 88, 89, and 
 note (6) (8th edit. 1833) ; Ledger v. Ewer, Peake, R. 216; Bayley on 
 Bills, ch. 12, p. 495 to 499 (5th edit. 1830) ; Solomon v. Turner, 1 Stark. R. 
 51; Morgan «. Richardson, 1 Camp. R. 40, note ; Tye v. Gwynne, 2 Camp. 
 R. 346 ; Moggridge v. Jones, 14 East, R. 486 ; Grant v. Welchman, 16 
 East, R. 307 ; Obbard v. Betham, 1 Mood. & Malk. 483. See the mas- 
 terly judgment of Mr. Baron Parke in Mendel v. Steele, 8 Mees. & Welsh. 
 858 ; Bracey v. Carter, 12 Adolph. & Ellis, 373. A total failure of con- 
 sideration will sometimes, but not always, be a good bar or defence of an 
 action of covenant. Cooch v. Goodman, 2 Adolph. & Ell. New B. 580, 
 599 ; Com. Dig. Fait. C. 2. 
 
 3 Chitty on Bills, ch. 3, p. 84, 85 (8th edit. 1833.) 
 
 4 Ibid. ; Nash v. Brown, cited Chitty on Bills, p. 85, note (c) ; HoUiday 
 V. Atkinson, 5 Barn. & Cressw. 50 ; Blogg v. Pinkers, 1 Ryan & Mood. 
 R. 125 ; Bayley on Bills, ch. 12, p. 502, 503, (5th edit.) See Tait v. 
 Hibbert, 2 Ves. jr. Ill ; S. C. 4 Bro. Ch. R. 486. 
 
 5 Ibid. 
 
 6 Chitty on Bills, ch. 2, § 1, p. 21 (8th edit. 1833) ; Id. ch. 3, p. 83, 
 84 ; Duncan v. Scott, 1 Camp. B. 100; Rees v. Marquis of Headfort, 2 
 
CH. VI.] CONSIDERATION OP. 217 
 
 trine is so completely coincident with the dictates of 
 natural justice, that it probably has a full recognition 
 in the jurisprudence of every civilized country. Cer- 
 tain it is, that it has a most perfect sanction in the 
 Roman Law, and in the jurisprudence of all the states 
 of continental Europe.^ 
 
 § 186. In the next place, a Bill of Exchange will be 
 void, if the consideration is illegal.^ It may be illegal, 
 either (as has been already suggested) because it is 
 against the general principles and doctrines of the Com- 
 mon Law ; or, because it is specially prohibited or in- 
 terdicted by statute. The former illegality exists, 
 wherever the consideration is founded upon a transaction 
 against sound morals, public policy, public rights, or 
 public interests ; as, for example, a contract of this sort 
 made with an alien enemy, a contract in general re- 
 straint of trade or marriage, a contract for the perpetra- 
 tion, or concealment, or compounding of some crime, a 
 contract offensive to Christian morals and virtue, as for 
 illicit cohabitation, a contract for the purchase of a pub- 
 lic office, a contract for indemnity against an act of 
 known illegality, a contract in fraud of the rights and 
 
 Camp. R. 574 ; Grew v. Bevan, 3 Stark. R. 134 ; Gladstone v. Hadwen, 1 
 M. & Selw. 517 ; Noble v. Adams, 7 Taunt. R. 59 ; Bayley on Bills, ch. 
 5, ^ 2, p. 143 (5th edit. 1830) ; Id. ch. 2, § 6, p. 56, 57 ; Lord Galway v. 
 Mathewson, 13 East, R. 175; Sherififi). Wilkes, 1 East, R. 48; Fleming 
 V. Simpson, 1 Camp. R. 40, note ; Pitt v. Smith, 3 Camp. R. 33 ; Gre- 
 gory V. Fraser, 3 Camp. R. 454. 
 
 1 Pothier on Oblig. n. 38 to 33, and Pothier, by Evans, Vol. 2, No. 2, 
 p. 19 to 25 ; Id. No. 3, p. 28, 29 ; Dig. Lib. 4, tit. 14, 1. 7, ^ 7 ; Id. I. 10, 
 §2. 
 
 2 Bayley on Bills, ch. 13, p. 504 to 524 (5th edit. 1830) ; Story on Con- 
 flict of Laws, § 243 to 260 ; Pothier on Oblig. n. 43 to 45 ; Pothier, by 
 Evans, Vol. 2, No. 2, p. 19. Bell v. Quin, 2 Sandford, Superior Ct. R. 
 146. 
 
 H. OF EX. 19 
 
218 BILLS OF EXCHANGE. [CH. VI. 
 
 interests of third persons ; and contracts justly repre- 
 hensible for their injurious effects upon the feelings of 
 third persons ; and contracts by way of wager, upon 
 , occasions not allowed by the general policy of law, if, 
 indeed, in a just sense, mere wagers ought ever to be 
 held legal.' The latter illegality (that created by sta- 
 tute) exists, not only where there is an express prohi- 
 bition or interdiction of the act or contract ; but also 
 'where it is implied from the nature and objects of the 
 statute.^ The Roman Law has inculcated the same 
 general principles in an emphatic manner. Quod turpi 
 ex causa promissum est, non valet? And it is followed 
 out and supported in the French law.* 
 
 § 187. In the next place. Between what parties, and 
 under what circumstances, is the consideration of a Bill 
 of Exchange inquirable into for the purpose of a de- 
 fence or a bar to an action brought thereon? The 
 general rule is, that the total or partial want or failure 
 of consideration, or the illegality of consideration, may 
 be insisted upon as a defence or a bar between any of 
 the immediate or original parties to the contract. It 
 
 1 Chitty on Bills, ch. 3, p. 93 to 99 (8th edit. 1833J ; Bayley on Bills, 
 oh. 12, p. 508 to 511 (5lh edit. 1830) ; Story on Conflict of Laws, § 243 
 to 259 1. 
 
 2 Chitty on Bills, ch. 3, p. 99 to 118 (8th edit. 1833) ; Bayley on Bills, 
 ch. 12, p. 504 to 514 (5th edit. 1830.) — It has seemed to me unnecessary 
 to go at large, in this place, into the doctrine of the illegality of considera- 
 tion, as the elementary works above cited contain a large collection of the 
 cases, all of which, however, turn upon one or more of the principles, 
 which are stated in the text. Story on Conflict of Laws, § 243 to 260 ; 1 
 Story on Eq. Jurisp. § 296, 298 to 300 ; 1 Ponbl. Eq. Jurisp. B. 1, ch. 4, 
 § 5 to 7, and note ; 1 Harrison's Dig. Title, Contract, § 3 to 8. Mr. 
 Evans, in his Translation of Pothier on Oblig. Vol. 2, No. 1, p. 1 to 19, 
 has examined this whole subject with much ability. 
 
 3 Inst. Lib. 3, tit. 20, § 24. 
 
 4 Pothier on Oblig. n. 43 to 46. 
 
CH. VI.] CONSIDERATION OF. 219 
 
 may be insisted by the Drawer against the Payee, by 
 the Payee against his Indorsee, and by the Acceptor 
 against the Drawer.' Thus, for example, it is a good 
 defence or bar to an action between these parties, that 
 the Bill is a mere accommodation Bill, that the Drawer 
 is a mere accommodation Drawer, the Payee an accom- 
 modation Indorser, and the Acceptor an accommodation 
 Acceptor.^ The same rule will apply to any derivative 
 title under them by any person who acts merely as 
 their agent, or has given no value for the Bill.^ It 
 will also apply to all cases where the party takes the 
 Bill, even for value, after it has been dishonored, or is 
 overdue ; for then he takes it subject to all the equities 
 which properly attach thereto between the antecedent 
 parties.'* So, if he has notice at the time when he pur- 
 
 i Bayley on Bills, ch. 13, p. 494 to 523 (5th edit. 1830)' ; Chitty on 
 Bills, ch. 3, p. 78 to 83 (8th edit. 1833) ; 3 Kent, Coram. Lect. 44, p. 80 
 to 8-2 (4th edit.) ; Jackson v. Warwick, 7 Term R. 121 ; Barber v. 
 Backhouse, Peake, R. 61 ; Ledger v. Ewer, Peake, R. 216 ; Darnell v. 
 Williams, 2 Stark. R. 166 ; Jones v. Hibbert, 2 Stark. R. 304 ; Pike v. 
 Street, 1 Mood. & Malk. 226 ; Lewis v. Cosgrave, 2 Taunt. R. 2 ; 
 Sumner t). Brady, 1 H. Black. R. 647; Knight v. Hunt, 5 Bligh, R. 
 433 ; Walker v. Parkins, 3 Burr. 1668 ; Clark v. Ricker, 14 New Hamp. 
 R. 44. 
 
 2 Bayley on Bills, ch. 10, p. 420, 421, (5th edit. 1830) ; Id. ch. 12, 
 p. 495; Chitty on Bills, ch. 3, p. 81 (8th edit. 1833) ; Darnell v. Wil- 
 liams, 2 Stark. R. 166; Wiffen v. Roberts, 1 Esp. R. 261; Jones v. 
 Hibbert, 2 Stark. R. 304 ; Sparrow v. Chisman, 9 B. & Cressw. 241 ; 
 De Launey v. Mitchill, 1 Stark. R. 439 ; Allaire v. Hartshorne, Zabriskie, 
 R. 665; Dowe v. Schult, 2 Denio, R. 621. 
 
 3 Ibid.; Denniston v. Bacon, 10 Johns. R. 207; Grew v. Burdilt, 
 12 Pick, R. 265. 
 
 * Chitty on Bills, ch. 3, p. 92, 93; Id. 113, 116 ; Id. ch. 6, p. 244, 
 245 (8th edit. 1833) ; Bayley on Bills, ch. 5, ^ 3, p. 157, 158 , Id. ch. 12, 
 p. 512 (5th edit. 1830) ; Id. (Amer. edit. 1836, by Sewall & Phillips,) 
 p. 544 to 548 ; Taylor v. Mather, 3 Term R, 83, note; Brown v. Da- 
 vies, 3 Term R. 80 ; Cruger v. Armstrong, 3 Johns. Gas. 5 ; Conroy v. 
 Warren, 3 Johns. Cas. 259 ; Ayer v. Hutchins, 4 Mass. R. 370 ; Thomp- 
 
220 BILLS OF EXCHANGE. [CH. VI. 
 
 chases it, that the Bill is void in the hands of the party 
 from whom he purchases it, either from fraud, or want, 
 or failure, or illegality of consideration, he will take it 
 subject to the same equities as that party .^ There is 
 one peculiarity in cases of illegality of consideration, 
 in which it is distinguishable from the want or failure 
 of consideration. In the latter, if there be a partial 
 want or failure of consideration, it avoids the Bill of 
 Exchange only pro tanto ; but, where the consideration 
 is illegal in part, there it avoids the 'Bill in Mo? The 
 reason of this distinction seems to be founded, partly 
 at least, upon the ground of public policy and partly 
 upon the technical notion, that the security is entire 
 
 son V. Hale, 6 Pick. R. 259 ; Tucker v. Smith, 4 Greenl. R. 415 ; Brown 
 V. Turner, 7 Term. R. 630. — Tlie equities whicli are here intended are 
 not all the equities which may exist between the parties, arising from 
 other transactions ; but all the equities attaching to the particular Bill in 
 the hands of the Holder. Post, § 22 ; Burrough v. Moss, 10 Barn. & 
 Cressw. 588 ; Whitehead b. Walker, 10 Mees; & Welsh. 696. But see 
 the cases collected in Bayley on Bills, ch. 13 (Amer. edit. 1836, by 
 Sewall & Phillips,) p. 546 to 552. A Bill, which has been accepted, 
 payable on demand with interest, will not be treated as overdue unless 
 it has been presented for payment ; for it may have been the intention of 
 the parties, that it should be negotiated and remain outstanding for some 
 time. Barough v. White, 4 Barn. & Cressw. 325. But see Ayer u. 
 Hutchins, 4 Mass. R. 370 ; Thompson v. Hale, 6 Pick. R. 259 ; Bayley 
 on Bills (Amer. edit. 1836, by Sewall & Phillips,) ch. 12, p. 546 to 
 552 ; Furniss v. Gilchrist, 1 Sandford, Superior Ct. N. Y. R. 53. 
 
 ' Ibid. ; Bayley on Bills, ch. 12, p. 512 (5th edit. 1830) ; Amory v. 
 Merryweather, 2 Barn. & Cressw. 573; Evans v. Kymer, 1 Batn. & 
 Adolph. 528; Krasson u. Smith, 8 Wend. R. 437; Skilding v. Warren, 
 15 Johns. R. 270 ; Harrisburg Bank v. Meyer, 6 Serg. & Rawle, 537 ; 
 Chitty on Bills, ch. 3, p. 92, 93 (8lh edit. 1833) ; Id. p, 115, 116 ; 
 Steers v. Lashley, 6 Term R. 61. 
 
 2 Robinson v. Bland, 2 Burr. R. 1077; Bayley on Bills, ch. 12, p. 514 
 (5th edit. 1830) ; Scott v. Gilmore, 3 Taunt. R. 226. But see Chitty 
 on Bills, ch. 3, p. 114, and note (8th ed.' 1833) ; Clark v. Ricker, 14 N. 
 Hamp. 44. 
 
CH. VI.] CONSIDERATION OF. 221 
 
 and cannot be apportioned. Probably a similar ground 
 would be assumed in cases of fraud, at least where the 
 ingredients were grossly offensive, or where the trans- 
 actions were so connected as to be incapable of a clear 
 and definite separation. There is much force in the 
 suggestion which has sometimes been made, that, where 
 the parties have woven a web of fraud, it is no part of 
 the duty of courts of justice to unravel the threads so 
 as to separate the sound from the unsound. 
 
 § 1 88. On the other hand, the partial or total failure 
 of consideration, or even fraud between the antecedent 
 parties, will be no defence or bar to the title of a iond 
 fide Holder of the Bill, for a valuable consideration, at 
 or before it becomes due, without notice of any in- 
 firmity therein.' The same rule will apply, although 
 the present Holder has such notice, if he yet derive a 
 title to the Bill from a prior hotiA fide Holder for value.^ 
 This doctrine, in both its parts, is indispensable to the 
 security and circulation of negotiable instruments ; and 
 it is founded in the most comprehensive and liberal 
 principles of public policy. No third person could 
 otherwise safely purchase any negotiable instrument ; 
 for his title might be completely overturned by some 
 latent defect of this sort, of which he could not have 
 any adequate means of knowledge, or institute any 
 inquiries which might not end in doubtful results, or 
 
 1 Chitty on Bills, ch. 3, p. 78, 79 (8th edit. 1833) ; Bayley on Bills, 
 ch. 12, p. 499, 500 (5th edit. 1830) ; Collins v. Martin, 1 Bos. & Pull. 
 651 ; Bramah v. Roberts, 1 Bing. N. Cas. 649 ; Ante, % 14 ; Post, § 189, 
 191, 193,417; Robinson v. Reynolds, 2 Adolph. & Ell. New R. 196,, 
 211. 
 
 2 Ibid. ; Haley v. Lane, 2 Atk. 182 : Lickbarrow v. Mason, 2 Term 
 R. 71 ; Chalmers v. Lanion, 1 Camp. R. 383 ; Robinson v. Reynolds, 
 2 Adolph. & Ell. New R. 196, 211. 
 
 19* 
 
222 BILLS OF EXCHANGE. [CH. VL 
 
 embarrassing difficulties. Hence it is, that a bond fide 
 Holder for value, without notice, is entitled to recover 
 upon any negotiable instrument vyhich he has received 
 before it has become due, notwithstanding any defect 
 or infirmity in the title of the person from whom he 
 derived it ; as, for example, even though such person 
 may have acquired it by fraud, or even hy theft or rob- 
 bery .1 [But even such lond fide Holder can recover 
 only the amount he has actually advanced.®] 
 
 § 189. The same doctrine will generally apply to all 
 cases of a hond fide Holder for value, without notice 
 before it becomes due, where the Bill, or the indorse- 
 ment or acceptance thereof, is founded on an illegal 
 consideration ; and this, upon the same general ground 
 of public policy, without any. distinction between cases 
 of illegality, founded in moral crime or turpitude, which 
 is malum in se, and those founded in the positive prohi- 
 bition of a statute, which is malum prohibitum ; for, in 
 each case the innocent Holder is, or may be, otherwise 
 exposed to the most ruinous consequences, and the 
 circulation of negotiable instruments would be materi- 
 ally obstructed, if not totally stopped.^ The only ex- 
 
 1 3 Kent, Comm. Lect. 44, p. 79, 80 (4th edit.) ; Bayley on Bills, ch. 
 12, p. 524 to 528 (5lh edit. 1830) ; Miller v. Race, 1 Burr. R. 452; Grant 
 V. Vaughan, 3 Burr. TC. 1516 ; Peacock v. Rhodes, 2 Doug. R. 633 ; 
 Lowndes v. Anderson, 13 East, R. 130 ; Solomons v. Bank of England, 
 13 East, R. 135 note (a) ; Thurston v. McKown, 6 Mass. R. 428 ; 
 Wheeler v. Guild, 20 Pick. R. 545. 
 
 2 Allaire v. Hattshorne, Zabriskie, N. Jers. R. 665 ; Holeman v. Hob- 
 son, 8 Humphrey's Term R. 127; Wiffen v. Roberts, 1 Esp. R. 261 ; 
 Jones V. Hibbert, 2 Stark. R. 204; Edwards v. Jones, 7 Coming. & 
 Payne, R. 633 ; S. C. 2 Mees. & Welsh. 414 ; Robins v. Maidstone, 
 4 Adolph. & Ellis, N. S. 811 ; Williams v. Smith, 2 Hill, N. Y. 301 ; 
 Valelte v. Mason, 1 Smith, Indiana R. 86. 
 
 a Chitty on Bills, ch. 3, p. 92, 93 (8th edit. 1833) ; Id. p. 115, 116 ; 
 
CH. VI.] CONSIDERATION OF. 223 
 
 ception is, where the statute, creating the prohibition, 
 has at the same time either expressly, or by necessary 
 implication, made the instrument absolutely void in the 
 hands of every Holder, whether he has such notice or 
 not. There are few cases in which any statute has 
 created a positive nullity of such instruments, either in 
 England or America. The most important seem to be 
 the statutes against gaming, and the statutes against 
 usury.^ And the policy of these enactments has been 
 
 Lowes V. Mazzaredo, 1 Stark. R. 385 ; Wyatt v. Bulmer, 2 Esp. R. 
 538 ; 3 Kent, Comm. Lect. 44, p. 79, 80, and note (4th edit.) ; Bayley 
 on Bills, ch. 12, p. 512 to 516; Gould u. Armstrong, 2 Hall, R. 266 ; 
 Smedberg v. Simpson, 2 Sandford, Superior Ct. N. Y. R. 85. 
 
 1 Bowyer v. Bampton, 2 Str. R. 1155 ; Peacock u. Rhodes, 2 Doug. 
 R. 636 ; Lowe v. Walker, 2 Doug. R. 736; Ackjand v. Pearce, 2 Camp. 
 R. 599 ; 3 Kent, Comm. Lect. 44, p. 79, 80 (4th edit.) ; Bayley on Bills, 
 ch. 12, p. 512 to 519 (5th edit. 1830) ; Preston v. Jackson, 2 Stark. R. 
 237 ; Shillito v. Theed, 7 Bing. R. 405 ; Henderson v. Benson, 8 Price, 
 R. 281 ; Chitty on Bills, ch. 3, 115, 116 (8th edit. 1833.) —In Bayley on 
 Bills, ch. 12, p. 517, (5th edit. 1830,) it is said : " The objection of ille- 
 gality of consideration is, in some cases, confined to those persons who 
 were parties or privy to such illegality, and those to whom they have 
 passed the Bill or note without value ; in other cases it is extended even 
 to holders bond fide, and for value. The latter cases are, where the con- 
 sideration is either wholly or in part signing a bankrupt's certificate ; 
 money lost by gaming as aforesaid, or by betting on the sides of persons 
 so gaming ; money knowingly lent for such gaming or betting ; money 
 lent, at the time and place of such play, to any person either then gaming 
 or betting, or who shall, during the play, play or bet ; money lent oh an 
 usurious contract ; ther ransom, or money knowingly lent to enable the 
 owner to obtain the ransom of the ship or vessel of any British subject, or 
 any merchandise or goods on board the same." On the other hand, Mr. 
 Chancellor Kent, in his learned Commentaries, restricts the cases to those 
 under the statutes against gaming and usury, and says, that there are no 
 others in which the instrument is void in the hands of an innocent Indor- 
 see for value. 3 Kent, Comm. Lect. 44, p. 79, 80 (4th edit.) The 
 former probably exhibits the present state of the English law most accu- 
 rately. See Chitty on Bills, ch. 3, p. 115, 116 (8th edit. 1833.) And it 
 seems, that, wherever the defence of usury is set up, since the Statute of 
 58 Geo. 3, ch. 93, the plaintiff is compelled to prove, that he gave value 
 
2.24 BILLS OP EXCHANGE. [CH. YI. 
 
 brought so much into doubt in our day, that in Eng- 
 land, the rule as to usury, and gaming, and some other 
 cases, has been changed by recent statutes ; and a total 
 repeal, or partial relaxation of it, has found its way into 
 the legislation of America.' 
 
 § 190. In respect to cases of illegality, also, this 
 farther distinction may become important. The ille- 
 gality may not only occur between the original parties 
 to the Bill; but, where the Bill was originally given 
 for a legaland valid consideration, there maybe ille- 
 gality in the subsequent indorsement, or other transfer 
 of it. In such a case the illegality will displace the 
 title of the parties thereto, but not the title of any bond 
 fide Holder for value under them, who has no notice of 
 the illegality, and is not bound to deduce his title to 
 the Bill through such parties, or to state or prove their 
 signatures.^ As, for example, if the first indorsement 
 be in blank, and the second indorsement for an illegal 
 consideration, a subsequent lona fide Holder may claim 
 title as Indorsee of the first Indorser, and thereby 
 escape from the necessity of establishing his title by 
 devolution through the second indorsement. In such 
 a case he will be completely protected.^ But, if the 
 
 for the Bill, otherwise he is not deemed to be within the protection of the 
 statute. Wyatt v. Campbell, 1 Mood. & Malk. 80 ; Bayley on Bills, oh. 
 12, p. 521 (5th edit. 1830.) 
 
 1 3 Kent, Comm. Leot. 44, p. 79, 80 (4th edit.) ; Stat. 58 Geo. 3, ch. 
 98 ; Stat. 5 and 6 Will. 4, ch. 41 ; Bayley on Bills, ch. 12, p. 517, 521 
 (5th edit. 1830); Sraedberg u. Simpson, 2 Sandford, Superior Ct. N. Y. 
 R. 85. See also, Bayley on Bills, ch. 12, p. 557 to 580 (AHier. edit. 
 1836, by Sewall & Phillips,) where the principal American cases are col- 
 lected in the notes. 
 
 2 Bayley on Bills, ch. 12, p. 522, 523 (5th edit. 1830) ; Chitty on Bills, 
 ch. 3, p. 93, 109, 116 (8th edit. 1833.) 
 
 3 Ibid. ; Parr v. Eliason, 1 East, R. 82 ; Daniel ®. Cartony, 1 Esp. R. 
 274 ; Munn v. Commission Company, 15 Johns. R. 44. 
 
CH. 
 
 VI.] CONSIDERATION OF. 225 
 
 Holder is compellable to make title through the parties 
 to the illegal considera1;ion, and the transfer is thereby- 
 declared absolutely void by statute, it seems, that the 
 Holder is not entitled to recover upon the Bill against 
 any of the antecedent parties.^ But, as between the 
 Holder and any subsequent parties, his title will be 
 good, if it is itself free from any illegality.^ 
 
 § 191. Neither is it any defence or bar, that the Bill 
 was known to the Holder to be an accommodation Bill 
 between the other parties, if he takes it for value, bond 
 fide, before it has become due.^ The reason is, that the 
 very object of every accommodation Bill is, to enable 
 the parties thereto, by a sale or other negotiation 
 
 1 Bayley on Bills, ch. 12, p. 523, 523 (5th edit. 1830) ; Chitty on Bills, 
 ch. 3, p. 93, 109, 110 (8th edit. 1833); Lowes v. Mazzaredo, 1 Stark. R. 
 385 ; Acklandi). Pearce, 2 Camp. R. 599 ; Chapman i). Black, 2 Barn. & 
 Aid. 590 ; Henderson v. Benson, 8 Price, R. 288 ; Gailher v. Farmers' & 
 Mechanics' Bank of Georgetown, 1 Peters, R. 43J; Lloyd v. Scott, 4 
 Peters, R. 205, 228. — The authorities on this point are in conflict with 
 each other. Parr v. Eliason, 1 East, R. 92, and Daniel v. Cartony, 1 Esp. 
 R. 274, affirm the right. But the text is supposed to contain the better 
 established doctrine. The true distinction seems to be, between cases, 
 where the indorsement is merely void, and cases, where it is voidable. 
 In the former case, it is obvious, that no title can be deduced through a 
 void title ; in the latter, a title may be, at least against all parties except 
 the person, who is entitled to avoid it. See Knights v. Putnaih, 3 Pick. 
 R. 184 (2d edit.,) where many of the authorities are collected. See, also, 
 Nichols V. Pearson, 7 Peters, R. 103 ; Reading v. Weston, 7 Conn. R. 
 409 ; Bush v. Livingston, 1 Cain. Cas. in Err. 66 ; Brathan v. Hess, 13 
 Johns. R. 52 ; Munn v. Commission Company, 15 Johns. R. 44. 
 
 2 Chitty on Bills, ch. 3, p. 109, 1 10 {8th edit. 1833) ; Bayley on Bills, 
 ch. 12, p. 523, 524 (5th edit. 1830) ; Edwards v. Dick, 4 Barn. & Aid. 
 212 ; Bowyer v. Bampton, 2 Str. R. 1155 ; O'Keefe v. Dunn, 6 Taunt. 
 R. 315. 
 
 3 Ibid. ; Charles v. Marsden, 1 Taunt. R. 234 ; Smith v. Knox, 3 Esp. 
 R. 46 ; Scott v. Lifford, 1 Camp. R. 246 ; Bank of Ireland v. Beresford, 
 6 Dow, R. 237 ; Grandin v. Le Roy, 2 Paige, R. 509 ; Powell v. Waters, 
 17 Johns. R. 176 ; Martross v. Clark, SSandford, Superior Ct. N. Y. R. 
 115. 
 
226 
 
 BILLS OF EXCHANGE. [CH. VI. 
 
 thereof, to obtain a free credit and circulation thereof; 
 and this object would be wholly frustrated, unless the 
 purchaser, or other Holder for value, could hold such a 
 Bill by as firm and valid a title, as if it were founded 
 in a real business transaction. The mere fact, that an 
 accommodation acceptance has been indorsed, even after 
 the Bill become due, does not of itself, without some 
 other equity in the Acceptor, defeat the rights of the 
 Holder.' In short, the parties to every accommodation 
 Bill hold themselves out to the public, by their sig- 
 natures, to be absolutely bound to every person, who 
 shall take the same for value, to the same extent, as if 
 that value were personally advanced to them, or on their 
 account, and at their request. The French law seems 
 to inculcate an equally broad and comprehensive doc- 
 trine.® 
 
 § 192. Every person, in the sense of the rule, is 
 treated as a lond fide Holder for value, not only who 
 has advanced money or otner value for it; but who 
 has received it in payment of a precedent debt, or has 
 a lien on it, or has taken it as collateral security, for a 
 precedent debt, or for future as well as for past advan- 
 ces.^ Thus, a banker, who is accustomed to make ad- 
 
 1 Sturtevant «. Ford, 4 Scott, R. 668; Carruiliers v. West, 11 Adolph. 
 & Ellis, (New Series) 144. 
 
 2 Poihier, de Cliange, n. 118 to 121 ; Code de Comm. art. 117 ; Par- 
 dessus, Droit Comm. Tom. 2, art. 378. 
 
 3 Chilty on Bills, ch. 3, p. 85 (8th edit. 1833) ; Ante, % 183 ; Haywood 
 V. Watson, 4 Bing. R. 496 ; Bayley on Bills, ch. 12, p. 600, 501 (5th 
 edit. 1830) ; Bosanquet i^. Dudman, 1 Starlj. R. 1 ; Ex parte Bloxham, S 
 Ves. 531; Holmes w. Smith, 16 Maine, R. 117; Townsley «. Sumrall, 2 
 Peters, R. 170 ; Bacheller v. Priest, 12 Pick. R. 399 ; Norton v. Waits, 
 2 Applet. R. 175; Holmes v. Smith, 16 Maine, R. 117; Barnett v. Bran- 
 das, fi Man. & Gr. 630, 670 ; Allaire ». Hartshorne, Zabriskie, N. Jersey, 
 R. 665 ; Russell v. Haddnck, 3 Gilman, Illinois, R. 233 ; City Bank of 
 
CH. VI.] 
 
 CONSIDERATION OF. . 227 
 
 vances or acceptances, from time to time, for his cus- 
 tomers, and has in his possession negotiable securities, 
 
 Columbus 1). Beech, Blotchford, R. 438. The earliest cases in the New 
 York Reports (Warren v. Lynch, 6 Johns. R. 289 ; Bay v, Coddington, 5 
 Johns. Ch. R. 54) are coincident with the doctrine stated in the text. 
 Some cases afterwards brought the doctrine into doubt, and in which it was 
 decided that taking a Bill in payment of a precedent debt did not entitle the 
 creditor to be deemed a bona fide purchaser within the sense of the rule. 
 See Bay v. Coddington, 20 Johns. R. 637 ; Wardell v. Howell, 9 Wend. 
 R. 179 ; Bristol v. Sprague, 8 Wend. R. 423 ; Roosa v. Brotherson, 10 
 Wend. R. 85; Ontario Bank v. Worthington, 12 Wend. R. 593; Payne 
 V. Cutler, 13 Wend. R. 606. The latter cases, however, seem gradually 
 receding from these decisions and inclining to uphold the old rule. See 
 Bank of Salina u. Babcock, 21 Wend. R. 490 ; Bank of Sandusky v. Sco- 
 viUe, 24 Wend. R. 115; Williams v. Smith, 2 Hill, N. Y. R. 301; 
 Seneca Co. Bank v. Nears, 5 Denio, R. 330; Hunt v. Fish, 4 Barbour 
 Sup. Ct. R. 324 ; Mantron v. Clark, 2 Sandford, Superior Ct. N. Y. R. 
 1 15. The leading authorities were cited and commented on in Swift v. 
 Tyson, 16 Peters, E. 15 to 22. On that occasion the Cout said ; " There 
 is no doubt, that a bona fide holder of a negotiable instrument for a valu- 
 able consideration, without any notice of facts which impeach its validity 
 as between the antecedent parties, if he takes it under an indorsement 
 made before the same becomes due, holds the title unaffected by these 
 facts, and may recover thereon, although as between the antecedent par- 
 ties the transaction may be without any legal validity. This is a doctrine 
 so long and so well established, and so essential to the security of nego- 
 tiable paper, that it is laid up among the fundamentals of the law, and re- 
 quires no authority or reasoning to be now brought in its support. As 
 little doubt is there, that the holder of any negotiable paper, before it is 
 due, is not bound to prove that he is a bona fide holder for a valuable 
 consideration, without notice ; for the law will presume that, in the ab- 
 sence of all rebutting proofs, and therefore it is incumbent upon the de- 
 fendant to establish by way of defence satisfactory proofs of the contrary, 
 and thus to overcome the prima facie title of the plaintiff. In the present 
 case, the plaintiff is a bona fide holder without notice of what the law 
 deems a good and valid consideration, that is, for a preexisting debt ; 
 and the only real question in the cause is, whether, under the circum- 
 stances of the present case, such a pre-existing debt constitutes a valuable 
 consideration in the sense of the general rule applicable to negotiable 
 instruments. We say, under the circumstances of the present case, for 
 the acceptance having been made in New York, the argument on behalf 
 of the defendant is, that the contract is to be treated as a New York con- 
 tract, and therefore to be governed by the laws of New York, as ex- 
 
228 , BILLS OF EXCHANGE. [CH. VI. 
 
 belonging to them for collection, is deemed to be a 
 Holder for value, to the extent of such advances and 
 
 pounded by its Courts, as well upon general principles, as by the express 
 provisions of the thirty-fourth section of the Judiciary Act of 1789, ch. 20. 
 And then it is further contended, that by the law of New York, as thus 
 expounded by its Courts, a pre-existing debt does not constitute, in the 
 sense of the general rule, a valuable consideration applicable to negotiable 
 instruments. In the first place, then, let us examine into the decisions 
 of the Courts of New York upon this subject. In the earliest case. War- , 
 ren v. Lynch, 5 Johns. R. 289, the Supreme Court of New York appear 
 to have held, that a pre-existing debt was a sufficient consideration to en- 
 title a bona fide holder without notice to recover the amount of a note 
 indorsed to him, which might not, as between the original parties, be 
 valid. The same doctrine was affirmed by Mr. Chancellor Kent in Bay 
 V. Coddington, 5 Johns. Chan. R. 54. Upon that occasion he said, that 
 negotiable paper can be assigned or transferred by an agent or factor ot 
 by any other person, fraudulently, so as to bind the true owner as against 
 the holder, provided it be taken in the usual course of trade, and for a fair 
 and valuable consideration without notice of the fraud. But he added, 
 that the holders, in that case, were not entitled to the benefit of the rule 
 because it was not negotiated to them in the usual course of business, or 
 trade, nor in payment of any antecedent and existing debt, nor for cash, 
 or property advanced, debt created, or responsibility incurred, on the 
 strength and credit of the notes; thus directly affirming, that a pre-exist- 
 ing debt was a fair and valuable consideration within the protection of the 
 general rule. And he has since affirmed the same doctrine, upon a full 
 review of it, in his Commentaries, 3 Kent, Comm. Lect. 44, p. 81. The 
 decision in the case of Bay v. Coddington was afterwards affirmed in the 
 Court of Errors, 20 Johns. R. 637, and the general reasoning of the chan- 
 cellor was fully sustained. There were indeed peculiar circumstances in 
 that case, which the Court seem to have considered as entitling it to be 
 treated as an exception to the general rule, upon the ground either because 
 the receipt of the notes was under suspicious circumstances, the transfer 
 having been made after the known insolvency of the indorser, or because 
 the holder had received it as a mere security for contingent responsibilities, 
 with which the holders had not then become charged. There was, how- 
 ever, a considerable diversity of opinion among the members of the Court 
 upon that occasion, several of them holding that the decree ought to be 
 reversed, others affirming that a pre-existing debt was a valuable considera- 
 tion, sufficient to protect the holders, and others again insisting, that a pre- 
 existing debt was not sufficient. From that period, however, for a series 
 of years, it seems to have been held by the Supreme Court of the State, 
 that a pre-existing debt was not a sufficient consideration to shut out the 
 
CH. VI.] CONSIDERATION OF. 229 
 
 acceptances.-' In every such case lie is deemed to have 
 a lien on such securities for the balances from time to 
 
 equities of the original parties in favor of the holders. But no case to that 
 effect has ever been decided in the Court of Errors. The cases cited at 
 the bar, and especially Roosa v. Brotherson, 10 Wend. R. 85 ; The Ontario 
 Bank v. Worthington, 12 Wend. R. 593 ; and Payne v. Cutler, 13 Wend. 
 R. 605, are directly in point. But the more recent cases, The Bank of 
 Salina v. Babcock, 21 Wend. R. 490, and The Bank of Sandusky v. Sco- 
 ville, 24 Wend. E. 115, have greatly shaken, if they have not entirely 
 overthrown those decisions, and seem to have brought back the doctrine 
 to that promulgated in the earliest cases. So that, to say the least of it, 
 • it admits of serious doubt, whether any doctrine upon this question can at 
 the present time be treated as finally established ; and it is certain, that 
 the Court of Errors have not pronounced any positive opinion upon it." 
 And again ; " It becomes necessary for us, therefore, upon the present 
 occasion to express our pwn opinion of the true result of the commercial 
 law upon the question now before us. And we have no hesitation 
 in saying, that a pre-existing debt does constitute a valuable consideration 
 in the sense of the general rule already stated, as applicable to negotiable 
 instruments. Assuming it to be true, (which, however, may well admit 
 of some doubt from the generality of the language,) that the holder of a 
 negotiable instrument is unaffected with the equities between the antece- 
 dent parties, of which he has no notice, only where he receives it in the 
 usual course of, trade and business for a valuable consideration, before it 
 becomes due ; we are prepared to say, that receiving it in payment of, or 
 as security for a pre-existing debt, is according to the known usual course 
 of trade and business. And why upon principle should not a ^re-existing 
 debt be deemed such a valuable consideration ? It is for the benefit and 
 convenience of the commercial world to give as wide an extent as practi- 
 cable to the credit and circulation of negotiable paper, that it may pass 
 not only as security for new purchases and advances, made upon the 
 transfer thereof, but also in payment of and as security for pre-existing 
 debts. The creditor is thereby enabled to realize or to secure his debt, 
 and thus may safely give a prolonged credit, or forbear from taking any 
 legal steps to enforce his rights. The debtor also has the advantage of 
 making his negotiable securities of equivalent value to cash. But es- 
 tablish the opposite conqlusion, that negotiable paper cannot be applied in 
 payment of or as security for pre-existing debts, without letting in all the 
 equities between the original and antecedent parties, and the value and 
 circulation of such securities must be essentially diminished, and the 
 
 1 Bosanquet v. Dodman, 1 Stark. R. 1 ; Ex parte Bloxham, 8 Ves. 531; 
 Spring's Appeal, 10 Barr, R. 335. 
 
 B. OF EX. 20 
 
230 BILLS OP EXCHANGE. [CH. TI. 
 
 time, as well as for such acceptances, by the implied 
 consent or agreement of his customers, resulting from 
 the usage oi* course of business.' 
 
 debtor driven to the embarrassment of making a sale thereof, often at a 
 ruinous discount, to some third person, and then by circuity to apply the 
 proceeds to the payment of his debts. Whatj indeed, upon such a doc- 
 trine, would become of that large class of cases, where new notes are 
 given by the same or by other parties, by way of renewal or security to 
 banks, in lieu of old securities discounted by them, which have arrived at 
 maturity 1 Probably more than one half of all bank transactions in our 
 country, as well as those of other countries, are of this nature. The 
 doctrine would strike a fatal blow at all discounts of negotiable securities 
 for pre-existing debts. This question has been several times before this 
 Court,' and it has been uniformly held, that it makes no difference what- 
 soever as to the rights of the holder, whether the debt for which the 
 negotiable instrument is transferred to him is a pre-existing debt, or is con- 
 tracted at the time of the transfer. In each case he equally gives credit 
 to the instrument. The cases of Coolidge v. Payson, 2 Wheaton, R. 66, 
 70, 73, and Townsley v. Sumrall, 2 Peters, R. 170, 182, are directly in 
 point. In England the same doctrine has been uniformly acted upon. 
 As long ago as the case of Pillans and Rose v. Van Meirop and Hopkins, 
 3 Burr. 1664, the very point was made, and the objection was overruled. 
 That, indeed, was a case of far more stringency than the one now before 
 us ; for the bill of exchange, there drawn in discharge of a pre-existing 
 debt, was held to bind the party as acceptor, upon a mere promise made 
 by him to accept before the bill was actually drawn. Upon that occasion 
 Lord Mansfield, likening the case to that of a letter of credit, said, that a 
 letter of credit may be given for money already advanced, as well as for 
 money to be advanced in future ; and the whole Court held the plaintiff 
 entitled to recover. From that period downward there is not a single case 
 to be found in England in which it has ever been held by the Court, that 
 a pre-existing debt was not a valuable consideration, sufficient to protect 
 the holder, within the meaning of the general rule, although incidental 
 dicta have been sometimes relied on to establish the contrary, such as the 
 dictum of Lord Chief Justice Abbott in Smith v. De Witt, 6 Dowl. & Ry- 
 land, 120, and De la Chaumette v. The Bank of England, 9 Barn. & Cress. 
 209, where, however, the decision turned upon very different considerations. 
 Mr. Justice Bayley, in his valuable work on bills of exchange and promis- 
 sory notes, lays down the rule in the most general terms. ' The want of 
 consideration,' says he, 'in toto or in part, cannot be insisted on, if the 
 plaintiff or any intermediate party between him and the defendant took 
 
 1 Ibid. 
 
CH. VI.] CONSIDEBATION OF. 231 
 
 § 193. lu the ordinary course of things, the Holder 
 is presumed to he, prima facie, a Holder for value; and 
 
 the bill or note bona fide and upon a valid consideration.' Bayley on 
 Bills, p. 499, 500, 5th London edition, 1830. It is observable, that he 
 here uses the words ' valid consideration,' obviously intending to make 
 the distinction, that it is not intended to apply solely to cases 
 where a present consideration for advances of money on goods, or 
 otherwise, takes place at the time of the transfer and upon the credit 
 thereof. And in this he is fully borne out by the authorities. They 
 go farther, and establish, that a transfer as security for past, and even for 
 future responsibilities, will, for this purpose, be a sufiScient, valid, and 
 valuable consideration. Thus, in the case of Bosanquet v. Dudman, 1 
 Starkie, R. 1, it was held by Lord Ellenborough,thatif a banker be under 
 acceptances to an amount beyond the cash balance in his hands, every bill 
 he holds of that customer's, bona fide, he is to be considered as holding 
 for value ; and it makes no difference though he hold other collateral se- 
 curities, more than sufiicient to cover the excess of his acceptances. The 
 same doctrine was af&rmed by Lord Eldon in Ex parte Bloxham, 8 Ves. 
 531, as equally applicable to past and to future acceptances. The sub- 
 sequent cases of Heywood v. W^atson, 4 Bing. R. 496, and Bramah v. 
 Roberts, 1 Bing. New Ca. 469, and Percival v. Frampton, 2 Cromp. 
 Mees. & Rose. 180, are to the same effect. They directly establish that 
 a bonsL fide liolder, taking a negotiable note in payment of or as security 
 for a preexisting debt, is a valuable consideration, entitled to protection 
 against all the equities between the antecedent parties. And these are 
 the latest decisions, which our researches have enabled us to ascertain 
 to have been made in the English Courts upon this subject. In the 
 American Courts, so far as we have been able to trace the decisions, 
 the same doctrine seems generally but not universally to prevail. In 
 Brush V. Scribner, 11 Conn. R. 388, the Supreme Court of Connec- 
 ticut, after an elaborate review of the English and New York adjudica- 
 tions, held, upon general principles of commercial law, that a. preexist- 
 ing debt was a valuable consideration, sufficient to convey a valid title to a 
 bon& fide holder against all the antecedent parties to a negotiable note. 
 There is no reason to doubt, that the same rule has been adopted and 
 constantly adhered to in Massachusetts ; and certainly there is no trace to 
 be found to the contrary. In truth, in the silence of any adjudications 
 upon the subject, in a case of such frequent and almost daily occurrence 
 in the commercial states, it may fairly be presumed, that whatever con- 
 stitutes a valid and valuable consideration in other cases of contract to 
 support titles of the most solemn nature, is held a fortiori to be suffi- 
 cient in cases of negotiable instruments, as indispensable to the security 
 of holders, and the facility and safety of their circulation. Be this as it 
 
232 BILLS OP EXCHANGE. [CH. VI. 
 
 he is not bound to establish, that he has given any 
 value for it, until the other party has established the 
 want, or failure, or illegality of the consideration, or 
 that the Bill had been lost or stolen, before it came to 
 the possession of the Holder.^ It may then be incum- 
 bent upon him to show, that he has given value, for, 
 under such circumstances, he ought not to be placed in 
 a better situation than the antecedent parties, through 
 whom he obtained the Bill. 
 
 § 194. What circumstances will amount to actual or 
 constructive notice of any defect or infirmity in the 
 
 may, we entertain no doubt, that a bona, fide holder, for a preexisting debt, 
 of a negotiable instrument, is not affected by any equities between the 
 antecedent parties, where he has received the same before it became due, 
 without notice of any such equities. We are all, therefore, of opinion 
 that the question on this point, propounded by the Circuit Court for our 
 consideration, ought to be answered in the negative; and we shall ac- 
 cordingly direct it so to be certified to the Circuit Court." The New 
 York cases are reviewed at large in the case of Swift v. Tyson, 16 
 Peters, R. 1. [And the latter case is reviewed in Stalker v. M'Donald, 
 6 Hill, N. Y. R. 93, where the Court of Errors of New York seem to 
 have affirmed that the receiving a Note as collateral security was not a 
 valuable consideration, entitling the patty to the protection of the rule above 
 stated. See Mickles v. Colbin, 4 Barbour, Sup. Ct. R. 304 ; Furniss v. 
 Gilchrist, 1 Sandford, Superior Ct. N. Y. R. 53 ; Fanby v. Pritchard, 2 
 Sandford, Superior Ct. N. Y. R. 151.] See, also, 3 Kent, Comm. Lect. 
 44, p. 80 to 82 (4th edit.) ; and Evans v.' Smith, 4 Binn. R. 367 ; Bosan- 
 quet V. Dudman, 1 Stark. R. 1 ; Pillans v. Van Mierop, 3 Burr. 1664 ; Ex 
 parte Bloxham, 8 Ves. 531 ; Heywood v. Watson, 4 Bing. R. 496 ; Bra- 
 mah V. Roberts, 1 Bing. New Cas. 469 ; Percival v. Frampton, 2 Cromp- 
 Mees. & Rose. 180 ; Brush v. Scribner, 11 Connect, R. 388. 
 
 1 See Bayley on Bills, ch. 12, p. 529 to 531 (5lh edit. 1830) ; Chitty on 
 Bills, ch. 6, § 3, p. 277 to 284 {8th edit. 1833) ; Goodman v. Harvey, 4 
 Adolph. & Ellis, 870; Arbouin v. Anderson, 1 Adolp. & Ell. N. S. R- 
 498, 504. In this case Lord Denman said ; " The owner of a Bill is en- 
 titled to recover upon it if he came to it honestly ; that fact is implied, 
 prima facie, by possession ; and to meet the inference so raised, fraud, 
 felony, or some such matter must be proved." Post, § 415, 416 ; Knight 
 V. Pugh, 4 Watts & Serg. R. 445 ; Story on Premiss. Notes, ^381. 
 
CH. 71.] CONSIDERATION OF. 233 
 
 title to the Bill, so as to let 'it in as a bar or defence 
 against a Holder for value, has been a matter of much 
 discussion, and of no small diversity of judicial opinion. 
 It is agreed on all sides, that express notice is not in- 
 dispensable; but it will be sufficient, if the circum- 
 stances are of such a strong and pointed character, as 
 necessarily to cast a shade upon the transaction, and to 
 put the Holder upon inquiry.' For a considerable 
 length of time the doctrine prevailed, that, if the 
 Holder took the Bill under suspicious circumstances, 
 or without due caution and inquiry, although he gave 
 value for it, yet he was not to be deemed a Holder hond 
 fide without notice.^ But this doctrine has been since 
 overruled and abandoned, upon the ground of its in- 
 convenience and obstruction to the free circulation 
 and negotiation of Exchange, and other transferable 
 paper.^ 
 
 1 Cone V. Baldwin, 12 Pick. R. 544 ; Hall v. Hale, 8 Conn. R. 236. 
 
 a GillB. Cubitt, 3 Barn. & Cressvv. 466; Snow v. Peacock, 3 Bing. R. 
 406 ; Strange v. Wigney, 6 Bing. R. 677 ; Slater v. West, 1 Dans. & 
 Lloyd, 15 ; Eastley v. Crockford, 10 Bing. R. 343 ; Nicholson v. Patten, 
 13 Lewis, R. 213, 216 ; 3 Kent, Coram. Lect. 44, p. 81, 82 {4th edit.) ; 
 Down ». Hailing, 4 Barn. & Cressw. 330 ; Beckwith v. Correll, 3 Bing. 
 R. 444 ; Chitty on Bills, ch. 6, § 3, p. 277 to 284 (8th edit. 1833) ; Bayley 
 on Bills, ch. 12, p. 524, 529 to 531 (5th edit. 1830.) 
 
 3 Goodman v. Harvey, 4 Adolph. & Ellis, 870 ; Uther v. Rich, 10 
 Adolph. & Ellis, 784 ; Stephens v. Foster, 1 Cromp. Mees. & Rose. 849 ; 
 Arboain v. Anderson, 1 Adolph. & Ellis, N. S. R. 498, 504 ; Post, ^415, 
 416. 
 
 20 * 
 
234 BILLS OP EXCHANGE. [CH. VII. 
 
 CHAPTER VII. 
 
 OP THE TRANSPER OP BILLS OF EXCHANGE. 
 
 § 195. Let us proceed, in the next place, to the con- 
 sideration of the Transfer of Bills of Exchange. We 
 have already seen what persons, in general, are com- 
 petent to draw, indorse, or accept Bills of Exchange j ' 
 and, therefore, little further seems necessary to be said, 
 in this place, in respect to the persons by whom the 
 transfer of Bills may be made. In case of the bank- 
 ruptcy of the Payee, or other Holder of a Bill of Ex- 
 change, all his rights of transfer of the same become 
 vested in his assignees, who may, by law, transfer the 
 same in their own names.^ In case of the death of the 
 Payee, or other Holder, the like right exists in the ex- 
 ecutors or administrators of the deceased ; and they 
 may, in their own names, transfer the Bill in the like 
 manner.^ In each of these cases, the transfer will be 
 available, as assets, for the benefit of the estate of the 
 bankrupt, or of the deceased testator or intestate, if the 
 Bill was held by him lon&fide on his own account ; and if 
 held, either positively or constructively, in trust for the 
 benefit of third persons, the transfer will be for their 
 sole use.* 
 
 1 Ante, § 70 to 106. 
 
 3 Chitty on Bills, ch. 6, p. 237 to 238 (8th edit. 1833) ; Bayley on Bills, 
 ch. 2, § 4, p. 49, 50 (5th edit. 1830) ; Id. ch. 5, § 2, p. 136 to 156. 
 
 3 Chitty on Bills, ch. 6, p. 225, 236 (8th edit. 1833) ; Bayley on Bills, 
 ch. 5, ^ 2, p. 136 (5th edit. 1830) ; Id. ch. 5, § 2, p. 136, 137 ; Rawlin- 
 son V. Stone, 3 Wils. 1 ; S. C. 3 Str. 126 ; Watkins u. Maule, 2 Jac. & 
 Walk. 237. 
 
 i Ibid. 
 
CH. VII.] TIIANSFEE OF. 235 
 
 § 196. In case of the marriage of a female, who is 
 Payee or Indorsee of a Bill, the property thereof vests 
 in her husband, and he becomes solely entitled to ne- 
 gotiate it, as Holder, and to indorse it in his own name." 
 The same rule applies in the case of a Bill made pay- 
 able to a married woman after her marriage. The hus- 
 band may transfer it in his own name.^ In case of an 
 infant Payee or Indorsee of a Bill, the infant may, by 
 his indorsement, (which is a voidable act only, and not 
 absolutely void,) transfer the interest to any subsequent 
 Holder, against all the parties to the Bill except him- 
 self; but the indorsement will not bind him personally 
 or bind his interest in the Bill.^ ' 
 
 § 197. In ease of a Bill, payable or indorsed to a 
 trustee, for the use of a third person, (such as a Bill, 
 payable or indorsed to A., for the use of B.,) the trus- 
 tee alone is competent to convey the legal title to the 
 Bill, by a transfer or indorsement.* In the case of a 
 partnership, a Bill, payable or indorsed to the firm, 
 may be transferred by any one of the partners in the 
 name of the firm,^ at any time during the continuance 
 
 1 Ante, § 93 ; Chitty on Bills, ch. 2, p. 26 (8th edit. 1833) ; Id. ch. 6, 
 Np. 225, 226; Bayley on Bills, ch. 2, § 3, p. 47 to 49 (5th edit. 1830) ; Id. ■ 
 ch. 5, § 2, p. 135, 136; Miles v. Williams, 10 Mod. R. 243, 245; Mc- 
 Neilage v. HoUoway, 1 Barn. & Aid. 218; Arnold u. Revoult, 1 Brod. & 
 Bing. 445 ; Philliskirk v. Pluckwell, 2 Maule & Selw. 393 ; Connor v. 
 Martin, 1 Str. R. 516 ; Burrough v. Moss, 10 Barn. & Cressw. 558 ; Bar- 
 low V. Bishop, 1 East, B- 432 ; Miller v. Delameter, 12 Wend. R. 433. 
 
 2 Ibid. 
 
 3 Chitty on Bills, ch. 2, § 1, p. 21 to 24 (8th edit. 1833) ; Id. ch. 6, p. 
 224 ; Bayley on Bills, ch. 2, ^ 12, p. 44 to 46 (5th edit. 1830) ; Id. ch. 5, 
 § 2, p. 136. 
 
 * Chitty on Bills, ch. 6, p. 226 (8th edit. 1833) ; Bayley on Bills, ch. S, 
 § 2, p. 134 (5th edit. 1830) ; Evans v. Cramlington, Carth. R. 5 ; S. C. 
 2 Vent. 307 ; Skinn. R. 264. 
 
 5 Chitty on Bills, ch. 2, p. 67 (8th edit. 1833) ; Id. ch. 6, p. 226 ; Bay- 
 ley on Bills, ch. 2, § 6, p. 53, 54 (5th edit. 1830.) 
 
236 BILLS OP EXCHANGE. [CH. VU. 
 
 of the partnership. But, where the partnership is dis- 
 solved during the lifetime of the partners, neither part- 
 ner can afterwards indorse a Bill, payable to the firm, 
 in the name of the firm.^ But where the dissolution is 
 by the death of one partner, there the survivor may 
 indorse a Bill, payable to the firm, in his own name.^ 
 The reason of the distinction is, that, in the former case, 
 the implied authority for one partner to act for all is 
 gone ; whereas, in the latter case, the Bill, or chose in 
 action, vests exclusively in the partner by survivorship, 
 although he must account therefor, as a part of the 
 assets of the partnership.^ If a Bill be made payable 
 or indorsed to several persons not partners, (as to A., 
 B., and C.,) there the transfer can only be by a joint 
 indorsement of all of them.* 
 
 § 198. Thus far, in respect to the persons, by whom 
 the transfer of Bills of Exchange may be made. Let 
 us, for a moment, consider, to whom the transfer may 
 be made. The transfer may, of course, be made to any 
 person of full age, who is not otherwise incompetent. 
 It may also be transferred to an infant, and thereby the 
 interest will vest in him ; or to a feme covert, and then 
 the interest will vest in her husband, who thereby be- 
 comes the legal owner thereof, and may treat it as pay- 
 able to himself; or he may at his election, treat it as 
 payable to himself and his wife ; * and, then, if she sur- 
 
 1 Sandford v. Mickles, 4 Johns. R. 234 ; Story on Partn. ^ 333 ; Bayley 
 on Bills, ch. 2, ^ 6, p. 59 (5th edit. 1830.) 
 
 2 Jones V. Thorn, 14 Martinj R. 463. 
 
 8 Crawshay v. Collins, 14 Ves. 218, 226. 
 
 * Ibid. ; Carvick v. Vickery, 2 Doug. R. 653, note. See Sayre v. Frick, 
 7 Watts & Sergeant, R. 383. 
 
 5 Bayley on Bills, ch. 2, ^ 3, p. 47 to 49 (5th edit. 1830) ; Chitty on 
 Bills, ch. 2, p. 26 (8th edit. 1833) ; Id. ch. 6, p. 225, 238; Id. Pt. 2, ch. 
 
CH. VII.J TRANSFER OF. 237 
 
 vives her husband, he not having reduced the same 
 into possession, she may hold and sue upon the indorse- 
 ment in her own name, for her own use. If the trans- 
 fer be to a person who is an idiot, or a non compos, or a 
 lunatic, there does not seem to be any legal incapacity 
 in holding it to be valid in their favor, if it be clearly 
 and unequivocally for their benefit, as, if it be a mere 
 bounty to them. If the transfer be to an executor or 
 administrator, or to any person, as trustee for another, 
 it will operate as a transfer to them personally, although 
 the trust may attach upon the proceeds in their hands.^ 
 If the transfer be to an agent, by an indorsement of his 
 principal in blank, he may treat the Bill, as between 
 himself and all the other parties, except his principal, 
 as his own, and fill it up in his own name ; or he may 
 hold it for his principal, and act in his name.^ If the 
 indorsement be filled up to the agent, by the principal, 
 then he is invested with the legal title, as to all persons 
 but his principal. But the principal may, at any time, 
 revoke his authority and reclaim his rights.^ 
 
 1, p. 556 ; Philliskirlc v. Pluckwell, 5 M. & Selw. 393 ; Richards e. 
 Richards, 2 B. & Adolph. 447 ; Burrough v. Moss, 10 Barn. & Cressw. 
 558. 
 
 1 Richards v. Richards, 2 Barn. & Adolph. 447. 
 
 2 Bayley on Bills, ch. 5, § 2, p. 132 to 134 (5th edit. 1830) ; Post, 
 § 207, 234 ; Clark u. Pigot, 12 Mod. R. 192, 193 ; 1 Salk. 126 ; 3 Kent, 
 Comm. Lect. 44, p. 78 to 81, 89, 90 (4th edit.) ; Chitty on Bills, ch. 6, p. 
 255, 256 (8th edit. 1833) ; Bank of Utica v. Smith, 18 Johns. R. 230 ; 
 Guernsey v. Burns, 25 Wend. R. 640 ; Little v. O'Brien, 9 Mass. R. 
 423 ; Sterling v. Marietta & Susq. Trad. Co. 10 Rawle, 179 ; Mauran v. 
 Lamb, 7 Cowen, R. 174; Banks v. Ebstin, 15 Martin, R. 291 ; Brigham 
 V. Marean, 7 Pick. E. 40 ; Lovell v. Evartson, 11 Johns. R. 52 ; Bragg 
 V. Greenleaf, 14 Maine, R. 396 ; Lowney v. Perham, 2 Appleton, R. 235. 
 But see, contra, Thatcher v. Winslow, 5 Mass. R. 58 ; Sherwood v. Roys, 
 14 Pick. R. 172 ; Wilson v. Holmes, 5 Mass. K. 543, 545, per Parsons, 
 Chief Justice. 
 
 3 Ibid. 
 
238 BILLS OF EXCHANGE. [CH. VIL 
 
 § 199. In the next place, as to the Mode of Transfer 
 of Bills of Exchange. If the Bill is not originally made 
 negotiable, or, in other words, is not payable to the 
 Bearer, or to order, it may be transferred by the Payee 
 or Holder thereof, either by delivery or by indorse- 
 ment, in such a manner as to bind himself, and to give 
 his immediate assignee a right thereon ag9,inst himself; 
 but not to give him a right against- any of the antece- 
 dent parties, which can be enforced, ex directo, at law, 
 (however it may be in equity,) in his own name, against 
 them.' Still, however, the transfer, if lond fide made 
 for a valuable consideration, will entitle him to maintain 
 an action at law thereon, in the name of the assignor 
 against the antecedent parties ; and, if he recovers, he 
 will be entitled to hold the proceeds for his own use.^ 
 
 § 200. But, if the Bill is negotiable, then the mode 
 of transfer depends upon the manner in which the 
 Bill is originally made negotiable. If it is payable to 
 the Bearer, then it may be transferred by mere deli- 
 very.^ But, although it may be thus transferred by 
 
 1 But the guvernment may sue on a note, not negotiable, in its own 
 name, if assigned to it. U. States v. Bufoid, 3 Peters, R. 12, 30 ; U. 
 States V. White, 2 Hill, N. Y. R. 59 ; Ante, § 60. 
 
 2 Bayley on Bills, ch. 5, § 1 , p. 120 (5th edit. 1830) ; Hill v. Lewis, 1 
 Salk. R. 132; Josoelyn v. Ames, 3 Mass. R. 274 ; Jones ». Witter, 13 
 Mass. R. 305; 3 Kent, Comm. Lect. 44, p. 77 (4th edit.) As to the 
 effect of a guaranty on the back of a Bill, by a person who is not a payee 
 or party to the Bill, see Seabury v. Hungerford, 2 Hill, N. Y. R. 80 ; Mil- 
 ler V. Gaston, 2 Hill, N. Y. R. 188; Post, § 215, 372, and note, § 453 to 
 458, and note ; Hall v. Newcomb, 3 Hill, E. 232 ; Manrow v. Durham, 3 
 Hill, R. 589. 
 
 3 C^iitty on Bills, ch. 5, p. 178, 179 (8th edit. 1833) ; Id. ch. 6, p. 218, 
 219, 252; Bayley on Bills, ch. 1, ^ 10, p. 30, 31 (5th edit. 1830) ; Id. ch. 
 9, p. 388 ; 3 Kent, Comm. Lect. 44, p. 78 (4th edit.) — Bills of Exchange 
 are rarely made payable to the Bearer; but Promissory Notes are often 
 made so, especially such notes as are issued by banks and bankers, where 
 
CH. VII.] TRANSFEK OF. 239 
 
 mere delivery, there is nothing in the law, which pre- 
 vents the Payee of a Bill, payable to himself or Bearer, 
 from transferring it, if he chooses, by indorsement. In 
 such a case, he will incur the ordinary liability of an 
 Indorser, from which in the case of a mere transfer, by 
 delivery, he is ordinarily exempt.^ On a transfer of a 
 Bill, payable to the Bearer, by delivery only, without 
 indorsement, the person making it ceases to be deemed 
 a party to the Bill ; ^ although he may, in some cases, 
 incur a limited responsibility to the person to whom he 
 immediately transfers it, founded upon particular cir- 
 cumstances, as for example, upon his express or implied 
 guaranty of its genuineness, and his title thereto.^ If 
 the Bill is payable to a fictitious person or order, 
 (as has been sometimes, although rarely, done,) then, 
 as against all the persons, who are parties thereto, 
 and aware of the fiction, (as, for example, against the 
 Drawer, Indorser, or Acceptor,) it will be deemed a 
 Bill payable to the Bearer, in favor of a bond fide 
 Holder without notice of the fiction ; ^ but as it should 
 
 they are intended to circulate as currency. We have already seen, that, 
 by the law of France, Bills are not permitted to be drawn, payable to the 
 Bearer. Ante, § 57, 62 ; Pothier de Change, n. 223 ; Pardessus, Droit 
 Coram. Tom. I, art. 338. 
 
 1 Bank of England v. Newman, 1 Ld. Raym. 442 ; Brush v. Reeves's 
 Administrator, 3 Johns. R.i439. See Chitty on Bills, ch. 6, p. 219 (8th 
 edit. 1833); Id. p. 267; 1 Selwyn, N. Prius, Bills of Exchange, p. 342 
 (10th edit. 1842) ; Seabury v. Hungerford, 2 Hill, N. Y. E. 80 ; Hall v. 
 Newcomb, 3 Hill, R. 232. 
 
 2Bayley on Bills, ch. 5, § 1, p. 120, 121 (5th edit. 1830.) 
 
 3 Ante, § 109, 111 ; Chitty on Bills, ch. 6, p. 268 to 270 (8th edit. 
 1833) ; Bayley on Bills, ch. 9, p. 363, 364 (5th edit. 1830.) 
 
 4 Chitty on Bills, ch. 5, p. 178, 179 (8th edit. 1833) ; Id. ch. 6, p. 252 ; 
 Bayley on Bills, ch. 1, § 10, p. 30, 31 (5th edit. 1830) ; Id. ch. 9, p. 383 ; 
 Stone V. Freeland, cited 1 H. Black. 316, note ; Vere y. Lewis, 3 Term 
 K. 182 ; Tatlock v. Harris, 3 Term R. 174 ; Minet v. Gibson, 3 Term R. 
 
240 BILLS OF EXCHANGE. [CH. VIL 
 
 seem, it would be deemed void, if the Holder had notice 
 thereof.^ 
 
 § 201. If the Bill is originally payable to a person 
 or his order, then it is properly transferable by in- 
 dorsement. We say properly transferable, because in 
 no other way will the transfer convey the legal title to 
 the Holder, so that he can at law, hold the other par- 
 ties liable t o him ex direeto, whatever may be his re- 
 medy in equity.^ If there be an assignment thereof 
 without an indorsement, the Holder will thereby ac- 
 quire the same rights only, as he would acquire upon 
 an assignment of a Bill not negotiable.* If, by mis- 
 take, or accident, or fraud, a Bill has been omitted to 
 be indorsed upon a transfer, when it was intended 
 that it should be, the party may be compelled, by a 
 court of equity, to make the indorsement ; and, if he 
 afterwards becomes bankrupt, that will not vary his 
 right or duty to make it ; and, if he should die, his 
 executor or administrator will be compellable, in like 
 manner, to make it.^ The assignees of a bankrupt. 
 
 481 ; 1 H. Black. 569 ; CoUis v. Emett, 1 H. Black. 313 ; 3 Kent, Comm. 
 Lect. 44, p. 78 (4th edit.) ; Plets v. Johnson, 3 Hill, R. 112. 
 
 1 Bennett v. Farnell, 1 Camp. K. 130, note ; Id. p. 180, (J), and (c), of 
 Addenda. 
 
 2 Bayley on Bills, ch. 5, § 1, p. 120, 121, (5th edit. 1830); Chitty on 
 Bills, ch. 6, p. 251, (8th edit, 1833) ; Id. p. 265 ; Gibson v. Minet, 1 H. 
 Black. 605 ; Ante, § 60. 
 
 3 In general, in such a case, the Holder, as against the prior parties, 
 will, upon the transfer, have the same rights in equity, as the Payee or 
 Assignor has ; that is, he may, at law, sue the other parties thereto, ia 
 the name of the Payee or Assignor, or perhaps he may maintain a suit in 
 equity in his own name, ex direeto against them. See Ante, § 199 ; 2 
 Story, Eq. Jurisp. § 1036, 1037, 1044, 1047. 
 
 4 Chitty on Bills, ch. 6, p. 228, 329, (8th edit. 1833) ; Id. 263 ; Bay- 
 ley on Bills, oh. 5, §1, p. 123, (5th edit. 1830); Id. § 2, p. 136, J37 ; 
 Watkins v. Maule, 2 Jac. & Walk. 337, 242 ; Smith v. Pickering, Peake, 
 R. 50. 
 
CH. VII.] TRANSFER OF. 241 
 
 under the like circumstances, may be compelled to 
 make an indorsement of a Bill, transferred before his 
 bankruptcy.' But, in the case of an executor, or ad- 
 ministrator, or assignee of a bankrupt, the doctrine is 
 to be understood with this limitation, that the indorse- 
 ment cannot be insisted upon, except with the quali- 
 fication, that it shall not create any personal liability 
 of the executor, or administrator, or assignee to pay 
 the Bill.'' 
 
 § 202. Where a Bill is not negotiable, ' or payable 
 to order, if it is indorsed by the Payee in blank, or 
 made payable to the Indorsee or order, the Indorser 
 incurs, as to every subsequent Holder, the same obli- 
 gations and responsibilities, as the Drawer of a like 
 Bill would ; for such an Indorser is treated, to all in- 
 tents and purposes, as a new Drawer.^ Where, upon 
 the indorsement, in such a case, the Bill is payable to 
 the Indorsee only, the Indorser incurs these obligations 
 and responsibilities only to his immediate Indorsee; 
 but, if the latter should again indorse the Bill, the 
 Holder under him would be entitled to treat him as a 
 new Drawer. 
 
 § 203. Where a Bill is originally payable to Bearer, 
 and, therefore, transferable by delivery only, actual or 
 constructive delivery thereof would seem to be indis- 
 pensable, to complete the legal title thereto.* But, 
 
 1 Bayley on Bills, ch. 5, §2, p. 138, (5th edit. 1830) ; Ex parte Mow- 
 bray, 1 Jac. & Walk. 428. 
 
 2 Ibid. ; Ante, § 195. 
 
 3 Ante, § 60 ; Chitty on Bills, ch. 6, p. 265, 266, (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 5, ^ 1, p. 120, 121, (5th edit. 1830) ; Hill u. Lewis, 1 
 Salk. K. 132 ; Evans v. Gee, 11 Peters, R. 80. See Seabury v. Hunger- 
 ford, 2 Hill, N. Y. E. 80. 
 
 4 But see Chitty on Bills, ch. 6, p. 219, (8th edit. 1833.) 
 
 B. OF EX. 21 
 
242 BILLS OP EXCHANGE. [CH. VII. 
 
 where the transfer is by indorsement, there an actual 
 or constructive delivery seems now to be deemed in- 
 dispensable, to complete the title ; and certainly must 
 be so, if the transaction is not treated as consummated 
 between the parties,^ [as where a condition is to be per- 
 formed before any interest passes to the Indorsee;^] 
 
 1 Marston v. Allen, 8 Mees. and Welsb. R. 494, 503 ; Brind v. Hamp- 
 shire, 1 Mees. & "Welsb. 369 ; Adams v. Jones, 12 Adolph. & Ell. 494, 
 503; Lloyd v. Howard, 15 Adolph. & Ellis, N. Series, 995; Barber ». 
 Richard, 6 Welsby, Hurlstone &, Gordon, 63. But see Chitty on Bills, 
 ch. 6, p. 252 (8th edit. 1833) ; Id. p. 262, 263. See Bayley on Bills, oh. 
 5, § 1, p. 120, 121 ; Id. ch. 9, p. 391, 392 (5th edit. 1830.) — The cases of 
 Churchill v. Gardner, 7 Term R. 596, and Smith v. McClure, 5 East, R. 
 476, are usually cited, as establishing the position, that a delivery is unne- 
 cessary. But it does not appear to me, that either of them directly sup- 
 ports it. In the first, it was held, that, in a declaration against an Acceptor, 
 it was sufficient, that it stated, that the Drawer made the Bill, and request- 
 ed the Acceptor to pay it to the plaintiff, or order, without saying that the 
 Drawer delivered it to the plaintiff; because, said the Court, the allegation 
 that he made the Bill, imported, that it was delivered. In the other case, 
 the Bill was payable to the order of the Drawer, and was accepted, and 
 the Drawer sued on the acceptance. The declaration alleged, that the 
 Drawer delivered the bill to the defendant, who accepted the same. But 
 it did not allege any redelivery thereof to the Drawer. The Court thought, 
 the acceptance must be taken, upon the declaration, to be a perfect accept- 
 ance, which vested a legal title in the Drawer. In the more recent cases, 
 a delivery, actual or constructive, seems to have been held indispensable, 
 to complete the title in the Indorsee, wherever the Bill is to pass by 
 indorsement ; and that, to constitute an indorsement in point of law, not 
 only the writing the name of the Indorser upon the bill is necessary, but 
 also a delivery of it to the Indorsee. Adams v. Jones, 12 Adolph. & Ellis, 
 R. 455, 459; Brind v. Hampshire, 1 Mees. & Welsb. 369; Marston v. 
 Allen, 8 Mees. & Welsb. 494, 503 ; Nelson v. Nelson, 6 Iredell, Eq. R. 
 409. However, even if the doctrine were established, that no delivery 
 was absolutely indispensable, still a delivery, either actual or constructive, 
 might, in many cases, be important to establish the title of the Holder, 
 where, upon the indorsement, circumstances of fraud or misappropriation 
 should occur. Marston v. Allen, 8 Mees. & Welsh. 494. But see Hayes 
 «. Caulfield, 5 Adolph. -& Ellis, New Series, 81; Bromage v. Lloyd, 1 
 Welsby, Hurlstone & Gordon, 32 ; Clark v. Sigourney, 17 Conn. R. 511. 
 
 2 Bell V. Ingestre, 12 Adolph. & Ellis, N. S. 317. 
 
CH. vn.] TRANSFER OF. 243 
 
 it is said, however, that, even if a delivery is not indis- 
 pensable to perfect the title between private persons ; 
 yet, that the Crown will not be bound, unless there has 
 been a delivery.' 
 
 § 204. In cases, where an indorsement is necessary, 
 as it is upon all Bills payable to order, no pairticular 
 form of words is indispensable to be used. It is gene- 
 rally sufficient, if there be the signature of the In- 
 dorser affixed, without any other words being used. 
 And, if any other words are placed over or precede 
 the signature, it is sufficient, if they import a present 
 intent to transfer the same thereby.® It has even been 
 held, that the initials of the holder of a check indorsed 
 on the check, are sufficient to charge him as Indorser.^ 
 The word. Indorsement, in its strict sense, seems to 
 import a writing on the back of the Bill ; but it is well 
 settled, that this is not essential.* On the contrary, it 
 will be a good indorsement, if it be made on the face 
 of the Bill, or on another paper annexed thereto, (called, 
 in France, Allonge,) which is sometimes necessary, when 
 there are many successive indorsements to be made.^ 
 The signature ought, in all cases, to be written with 
 ink, in order to prevent its defacement. But even this 
 has been recently held not to be indispensable, and that 
 
 1 Ibid. ; The King v. Lambton, 5 Price, R. 428. 
 
 2 Chitty on Bills, ch. 6, p. 253 (8th edit. 1833) ; Bayley on Bills, ch. 5, 
 § 1, p. 122 (5th edit. 1830) ; Chaworth v. Beech, 4 Ves. 585 ; Portridge 
 V. Davis, 20 Vermont R. 499. 
 
 3 Merchants' Bank v. Spicer, 6 Wend. R. 443. 
 
 * Heineccius says ; " Id, quod vocantindossamentum (das Indossement), 
 quia dorso inscribi solet." Heinecc. de Camb. cap. 2, § 7. See, also, 
 Pothier de Change, n. 22; Gibson u. Powell, 6 Howard, Mississippi' R. 
 60. ■ 
 
 5 Chitty on Bills, ch. 5, p. 147 (8th edit. 1833) ; Id. ch. 6, p. 253, 262 ; 
 Pardessus, Droit (/omm. Tom. 2, art. 343 ; Folger v. Chase, 18 Pick. 63. 
 
244 BILLS OP EXCHANGE. [CH. VII. 
 
 an indorsement in pencil is sufficient.^ The mode of 
 making the indorsement, when it is by an agent, a part- 
 ner, or a feme covert, or other person, acting officially, 
 is precisely the same, as the signature should be in 
 drawing a Bill.^ In whatever way an indorsement may 
 be made, by the general principles of law, unless varied 
 by the contract of the parties, the Indorser is deemed 
 to stand in the relation of a new Drawer of a Bill, and, 
 of course, is affected with all the liabilities of a Drawer.' 
 § 205. By the law of France, in order to pass a valid 
 title to the Bill to the Indorsee, or Holder, it is essen- 
 tial, that the indorsement should be subscribed by the 
 Indorser ; that it should be dated truly (and not ante- 
 dated) ; that it should be expressed to be for value re- 
 ceived ; and that the name of the person, to whose order 
 it is payable, should be mentioned.* When an indorse- 
 ment contains all these particulars, it is called a regular 
 indorsement, and the title will thereby pass to the In- 
 dorsee.® If the indorsement be not attended with these 
 formalities, it is called an irregular indorsement, and 
 will only operate as a simple procuration to the Indor- 
 see, giving him authority to receive the contents.® A 
 
 1 Chitty on Bills, ch. 6, p. 252 (8th edit. 1833) ; Geary v. Physio, 5 
 Barn. & Cress w. 234 ; Ante, ^ 53; Partridge v. Davis, 20 Vermont R. 
 499. 
 
 2 Ante, ^ 53, 74 to 77, 92. 
 
 3 Chitty on Bills, oh. 6, p. 265 to 267 (Sth edit. 1833); Hodges u. 
 Stewart, 1 Salk. R. 125 ;• Heylin v. Adamson, 2 Burr. 674 ; Ballirigalls v. 
 Gloster, 3 East, R. 481 ; Bayley on Bills, ch. 9, p. 332 (5th edit. 1830) ; 
 Pothier de Change, n. 38. 
 
 * Code de Comm. art. 136 to 139 ; Pothier de Change, n. 38 to 40 ; 
 Jousse, sur I'Ord, 1673, Ft. 5, art. 23. 
 
 5 Pardessus, Droit Coram. Tom. 2, art. 343 to 350 ; Ante, ^ 62. 
 
 6 Code de Comm. art. 138; Pardessus, Droit Comm. art. 343, 353 to 
 355 ; Chitty on Bills, ch. 6, p. 251 (Sth edit. 1833); Pothier de Change, 
 n. 38, 39. 
 
CH. VII.] TRANSFER OF. 245 
 
 blank indorsement, therefore/ is. treated as an irregular 
 indorsement, and will not transfer the property to the 
 Indorsee or Holder, unless, indeed, the imperfection is 
 cured by the Indorser, before it has become the subject 
 of some notarial or public act, or before the Indorser 
 has become incapable.^ Still, a blank indorsement is 
 not without effect in France ; for, if the Bill has been 
 accepted, and has been indorsed in blank, and the Bill is 
 then lost or stolen, and the blank is filled up in a false 
 or forged name, and the Acceptor should, without notice 
 of the fact pay the Bill to the Holder, he would be protect- 
 ed in so doing.® Blank indorsements seem also prohibit- 
 ed in many other of the continental nations of Europe. 
 Heineccius on this subject says ; "iVee minus noiarimere- 
 tur, leges camliales tantum non omnes 6b inmimeras fraudes 
 proMbere cessiones, quae solo sulscripto nomine fiunt, ac 
 proinde vocantur Indossamenta in bianco. Ex Ms ne actio 
 quidem datur, nisi ante prcesentationem nomen indossatarii ai 
 indossante inscripiiim sit."^ And it seems, that under 
 certain circumstances, the Holder himself may fill up 
 the blank, so as to make out a regular indorsement, if 
 this be in conformity to the actual intention of the In- 
 dorser, and the authority be implied or expressed, at 
 the time of the indorsement; and no intervening fact, 
 such as the bankruptcy of the Indorser, has changed 
 the rights or capacities of the party.^ 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 343, 354 ; Pothier de Change, 
 n. 41 ; Trimbey ». Vignier, 1 Bing. N. Cas. 151 ; Ante, ^ 62. 
 
 2 Pardessus, Droit Comm. Tom. 3, art. 446,455 ; Ante, § 62, 
 
 3 Heinecc. de Camb. cap. 2, § 11 ; Id. § 10. But see the very liberal 
 and philosophical remarks of Mr. Professor Mittermaier on this subject, in 
 Fcelix. Revue Etrang. etFran9. Tom. 8, 1841, p. 116 to p. 121, cited in 
 Story on Promissory Notes, § 140 note. 
 
 4 Pardessus, Droit Comm. Tom. 2, art. 346. 
 
 31* 
 
246 BILLS OF EXCHANGE. [CH. VIL 
 
 § 206. Indorsements are of various sorts, and have, or 
 at least, may have, very different operations, and import 
 very different liabilities, rights, and duties. ,An in- 
 dorsement may be in blank ; or it may be in full ; or 
 it may be restrictive; or it may be qualified; or it 
 may be conditional.^ An indorsement is called an in- 
 dorsement in blank, or a blank indorsement, when the 
 signature of the party making it is alone put upon the 
 Bill, without any words over or preceding it, expressive 
 of any intention whatsoever.^ It is called an indorse- 
 ment in full, or a full indorsement, when there is writ- 
 ten, over the signature of the Indorser, the name of 
 the person, to whom, or in whose favor, it is made.* 
 The common form is, " Pay to A. B. or order ; " ^ but, 
 if it be, " Pay to the order of A. B.," it has the same 
 legal construction, that is, it is payable to A. B., as 
 well as to his order.^ An indorsement is restrictive, 
 when it restrains the negotiability of the Bill to a par- 
 
 1 Bayley on Bills, ch. 6, § 1, p. 123 to 129 (5th edit. 1830) ; Chitty on 
 Bills, ch. 6, p. 253, 255, 257 to 264 (8th edit. 1833.) See Merlin, Reper- 
 toire, Endossement ; 1 Bell, Coram. B. 3, ch. 2, § 4, p. 401, 402 (5th 
 edit.) 
 
 2 Bayley on Bills, ch. 6, ^ 1, p. 123, 124 (5th edit. 1830) ; Chitty on 
 Bills, ch. 6, p. 253 (8th edit. 1833.) 
 
 3 Ibid. 
 
 * Ibid. — Pothier says, that the common form in France is, " Poui: moi 
 payerez k un tel ou k son.ordre, valeur recue d'un tel comptant, on bien, 
 en marchandise." Pothier de Change, n. 23, 38. Heineccius says ; " Hinc 
 in camhiis ipsis pleramque scribitur, der Herr beliebe za bezahlen an Ti- 
 tium, odearjd^sen Ord.re, vel, an Titiun, oder Commiss. Enimvero si vel 
 maxime hsec tb^maij^in litteris cambialibus non legatur, indossamento 
 nibilominus locus est, in6%"id leges cambiales speciatim nod prohibeant 
 quia cessionem et ignorante et invito debitore fieri posse, notum est ex 1. 1, 
 C. de Novat. Qain!«Uquando et invitus alii cambium cedere tenetur, si 
 illi inest clausula, der Herr zahle an Titii Ordre. Tunc enim Titio solvi 
 non potest, sed ejus indossatario." Heinecc. de Camb. cap. 2, ^ 8. Ante, 
 § 56, 57. 
 
 5 Fisher v. Pomfret, Garth. R. 403 ; Ante, § 19, 56. 
 
CH. VII.] 
 
 TRANSFER OP. 
 
 247 
 
 ticular person, or for a particular purpose.' An indorse- 
 ment is qualified, when it restrains, or limits, or quali- 
 fies, or enlarges, the liability of the Indorser, in any 
 manner different from what the law generally imports 
 as his true liability, deducible from the nature of the 
 instrument.^ An indorsement is conditional, when it is 
 made upon some condition, which is either to give 
 effect to, or to avoid it.^ 
 
 1 Bayley on Bills, ch. 6, ^ I, p. 125 to 128 (5th edit. 1830) ; Chitty on 
 Bills, ch. 6, p. 258 to 260 {8th edit. 1833) ; Nicholson v. Chapman, 1 Eo- 
 binson, Louisiana R. 222. 
 
 2 Chitty on Bills, ch. 6, p. 261, 262 (8th edit. 1833.) 
 
 3 Ibid. Mr. Chitty has placed in his text certain forms of indorsements 
 applicable to various cases, which I here insert, as illustrative of my own 
 text. " James Atkins," in all these forms, is supposed to be, solely, or 
 with his partners, Payee and first Indorser." 
 
 MODES OR FORMS OF INDORSEMENTS AND TRANSFERS 
 1. JFirst Indorsement by Drawer or 
 Payee in Blank. 
 
 " James Atkins." 
 
 The like by a partner. 
 " Atkins & Co." 
 
 " For self and Thompson, 
 " James Atkins." 
 
 J7te like by an ageht, 
 "Per procuration James Atkins, 
 "John Adams." 
 
 ' As agent for James Atkins," 
 " John Adams." 
 
 4. Qualified indorsement to avoid per- 
 sonal liability. 
 
 " James Atkins, 
 
 " sans recours.^' 
 
 '■ James Atkins, with intent only to 
 transfer my interest, and not to be sub- 
 ject to any liability in case of non-ac- 
 ceptance or non-payment." 
 
 5. Indorsement in full, or special. 
 " Pay John Holloway, or order, 
 " James Atkins." 
 
 " Au besoin chez Messrs. 
 
 Rue , Paris. 
 
 ' Eetour sans ProtSt." 
 
 Chitty on Bills, ch. 6, p. 250, 251 (8th edit. 1823.) 
 
 6. Restrictive indorsement in favor of 
 Indorser. 
 
 ' Pay John Holloway for my use, 
 " James Atkins." 
 
 ' Pay John Holloway for my account, 
 " James Atkins." 
 
 7. Restrictive indorsement in favor of 
 Indorsee or a particular person only. 
 " Pay to I. S. only, 
 
 " James Atkins." 
 or, 
 " The within must be credited to A. B., 
 " James Atkins." 
 
 8. Indorsement of a foreign Bill, 
 dated, stating name of Indorsee, and 
 value, and au besoin, and sans protgt. 
 
 " Payee La Payette frferes, ou ordre, 
 valeur recue en argent, {pr ' en mar- 
 chandises,' or ' en compte,') 
 
 " James Atkins." 
 
 " A Londre, 
 18th Juin, A. D. 1831. 
 
248 BILLS OF EXCHANGE. [CH. Vlf. 
 
 § 207. Where a Bill is indorsed in blank by the ori- 
 ginal Payee, or other person, to whose order it is pay- 
 able, it becomes, in effect, as long as that indorsement 
 remains blank, a Bill payable to the Bearer, and it will 
 pass from hand to hand by mere delivery.^ One con- 
 sequence of this doctrine is, that, if the Bill is trans- 
 mitted to an agent for the purpose of collection or 
 negotiation, he may either fill up the blank, and make 
 it payable to himself, or he may fill it up as agent of 
 his principal, in the name of a third person. In the 
 former case, he may sue as owner upon the Bill, or 
 transfer it to a third person. In the latter, the Indor- 
 see yvill take it without any responsibility whatever of 
 the agent.^ Another consequence of this doctrine is, 
 that, if the Bill should, after such blank indorsement, 
 be lost or stolen, or fraudulently misapplied, any per- 
 son, who should subsequently become the Holder of it, 
 hond fide, for a valuable consideration, without notice, 
 would be entitled to recover the amount thereof, and 
 hold the same against the rights of the owner at the 
 time of the loss or theft.^ It will make no difference, 
 while the first indorsement remains blank, that there 
 
 1 Chitty on Bills, ch. 6, p. 255 to 257 (8th edit. 1833) ; Bayley on 
 Bills, ch. 6, p. 123, 124 (5th edit. 1830) ; Peacock v. Rhodes, Doug. R. 
 633, 636 ; Marston v. Allen, 8 Mees. & Welsh. 494, 504 ; 3 Kent, 
 Comm. Lect. 44, p. 89, 90 (4th edit.) ; Ante, § 54 ; Evans v. Gee, 
 U Peters, R. 80; Seabury v. Hungerford, 2 Hill, N. Y. K. p. 80; 
 Hall V. Newland, 3 Hill, R. 232. 
 
 2 Clark V. Pigot, Salk. 126, 12 Mod. 192 ; Ante, § 148 ; Post, ^ 224. 
 
 3 Ibid. ; Marston v. Allen, 8 Mees. & Welsh. 494, 504 ; Barber i'. 
 Richards, 6 Welsby, Hurlstone & Gordon, 63 ; Bayley on Bills, ch. 5, 
 § 2, p. 129 to 131 (5ih edit. 1830) ; Anon. 1 Ld. Eaym. 738, 1 Salk. R. 
 126, 3 Salk. R. 7 ; Miller u. Race, 1 Burr. R. 452 ; Grant v. Vaughan, 
 3 Burr. R. 1516 ; Chitty on Bills, ch. 6, p. 277 (8th edit. 1833) ; Id. ch. 
 9, p. 429. 
 
CH. VII.] TRANSFER OF. 249 
 
 are subsequent indorsements in full on the Billj for 
 these do not change the original character of the first 
 blank indorsement as to the rights of the Holder 
 against the Payee, the Drawer, and the Acceptor ; but 
 at most they will only restrict the Holder to the right 
 to recover upon the Bill, as the immediate assignee of 
 the first Indorser; and, therefore, he will be at liberty 
 to pass over, or strike out, all the subsequent indorse- 
 ments.' Indeed, if the other indorsements are all in 
 full, and not restrictive, so that the Holder could 
 deduce a regular title through them, he would not be 
 bound so to do, but might at his electioil waive his 
 right under or against them, and claim simply under 
 the first blank indorsement.® It is always in the 
 power, however, of the Holder to fill up any blank 
 indorsement in the name of any person he may choose ; 
 and thereby to restrain the negotiability of the instru- 
 ment to those who can legally acquire a right under 
 such indorsement.^ But an indorsement, however 
 made, cannot be made so as to operate as a transfer of 
 less than the full amount appearing to be due upon the 
 Bill ; for the law will not tolerate any person in split- 
 ting up a contract so as to create distinct obligations 
 to different parties, where the contract is an entirety, 
 
 1 Bayley on Bills, ch. 6, § 1, p. 124, 125 (5th edit. 1830) ; Chitty on 
 Bills, ch. 6, p. 253, 255 to 257, 265, 266 (8th edit. 1833) ; Smith v. 
 Clarke, Peaks, R. 225 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 404 (5th 
 edit.); Walker v. Macdonald, 2 Welsby, Hurlstone & Gordon, 527. 
 
 2 Ihid. 
 
 3 Bayley on Bills, ch. 6, § 1, p. 123, 124 (5th edit. 1830) ; Chitty on 
 Bills, ch. 6, p. 253, 255 to 257 ; Vincent v. Horlock, 1 Camp. R. 443 ; 
 Archer v. Bank of England, Dong. R. 637, 639. 
 
250 BILLS OP EXCHANGE. ' [CH. VIL 
 
 and there is no consent of the party contracting to any 
 change.' 
 
 § 208. Where a Bill is indorsed in full by the first 
 Indorser, or by a Holder tinder him, no subsequent 
 Holder can recover upon such indorsement against the 
 antecedent parties unless he can deduce a regular title 
 to the Bill from the person whose name stands as the 
 first Indorsee. If all the subsequent indorsements are 
 in blank, he may make himself, at his pleasure, the im- 
 mediate Indorsee of any one of them, or he may deraign 
 his title through them all in succession.^ If some of 
 the subsequent indorsements are in full, and some 
 blank, then he must make a regular deraignment of 
 title through them all, or make himself the immediate 
 Indorsee under some prior blank indorsement.^ And, 
 
 1 Bayley on Bills, ch. 5, § 1, p. 129 (5th edit. 1830) ; Chitty on Bills, 
 oh. 6, p. 262 {8ih edit. 1833) ; Hawkins v. Cardy, 1 Ld. Raym. 360, 
 Garth. R. 466, 12 Mod. R. 213, Salk. R. 65 ; Johnson v. Kennion, 
 2 Wils. R. 262. , 
 
 2 There are some advantages and some disadvantages, vfhich practically 
 may occur in either way. A good pleader would undoubtedly put into 
 the declaration counts deducing title in different ways, according to the 
 facts, and his means of proving them. Thus, if he could prove only the 
 signature of the first Indorser, he would rely on a count stating the 
 plaintiff to be his immediate Indorsee. If he could prove all the signa- 
 tures of all the Indorsers, he ought to have a count in his declaration 
 founded upon all of them. For, if the plaintiff should elect to recover 
 upon an early blank indorsement, he might thereby discharge all the 
 subsequent Indorsers, or waive any remedy against them. This might 
 be a serious inconvenience to him, if there should be any doubt of the 
 insolvency of such early Indorser. Great care and consideration are, 
 therefore, necessary to be observed in all complicated cases of this sort, 
 if the Holder means to rely upon the responsibility of all the Indorsers. 
 See Bayley on Bills, ch. 11, p. 464, 467 (5th edit. 1830.) See Chitty 
 on Bills, Pt. 2, ch. 5, p. 628 to 631 (8th edit. 1833) ; Id. 636 ; Cocks 
 V. Borradaile, cited Chitty on Bills, 631, note (f) ; Chaters v. BeU,4 Esp. 
 R. 210. See, also. Ante, § 190. 
 
 3 Bayley on Bills, ch 11, p. 464, 465 (5th edit. 1830) ; Chitty on 
 
(CH. VII.] TKANSPEE OP. 251 
 
 wherever, in the regular course of indorsements, some 
 are full, and some are blank, the Bill, as to all persons 
 taking it subsequently to a blank indorsement, may- 
 pass either by delivery or by indorsement.^ 
 
 f 209. If a Bill be indorsed by the Payee, or other 
 Holder, payable to a particular person, who is merely 
 his agent, it seems, that he is at liberty to strike out 
 such indorsement, whether it be an indorsement made 
 by himself, or written over a blank indorsement of a 
 prior Indorser, and sue upon the Bill, as if he had 
 never made it payable to such agent ; for, in such a 
 case, he has never parted with the property;^ and, 
 indeed, if he had, and it had again been restored to 
 him in the course of business, there does not seem any 
 sound reason to say, that he ought not to be reinstated 
 in his original rights.^ 
 
 § 210. The Payee or Indorsee, having the absolute 
 property in the Bill, and the right of disposing of it, 
 has the power of limiting the payment to whom he 
 pleases, and also the purpose, to which the payment 
 shall be applied ; and thus to restrict its negotiability.* 
 
 Bills, Pt. 2, ch. 5, p. 629 to 631 (8th edit. 1833) ; 1 Bell, Comm. B. 3, 
 ch. 2, ^ 4, p. 404 (5th edit.) 
 
 1 Chitty on Bills, ch. 6, p. 257 (8th edit. 1833) ; Ante, § 60, 207. 
 
 2 Bank of Utica v. Smith, 18 Johns. R. 230 ; Pardessus, Droit. Comm. 
 Tom. 2, § 349 ; Cassel v. Dows, Blatchford, R. 335. See, also, Dehers 
 V. Harriot, 1 Show. R. 163. " 
 
 3 Ibid. ; Dugan v. U. States, 3 Wheat. R, 172 ; U. States v. Barber, 
 1 Paine, Cir. R. 156 ; Bank of United States v. United States, 2 How. 
 Sup. Ct. R. 7)1 ; Mottram v. Mills, 1 Sandford, Sup. Ct. R. 37 ; Dollfus 
 V. Frosch, 1 Denio, R. 367. 
 
 4 Mr. Chitty has'remarked, on this subject ; " It was once thought, that, 
 although the Indorser might make a restrictive indorsement, when he in- 
 tended only to give a bare authority to his agent to receive payment, yet, 
 that he conld not, when the indorsement was intended to transfer the in- 
 terest in the Bill to the Indorsee, by any act preclude him from assigning 
 
252 BILLS OP EXCHANGE. [CH. VIL 
 
 In respect to restrictive indorsements, it is proper to 
 observe, that, where the Bill is originally negotiable, 
 or payable to order, an indorsement, directing payment 
 to a particular person, by name, without adding the 
 words, " or his order," will not make it an indorsement 
 payable to him only, and restrain the negotiation there- 
 of; for, in all cases of indorsement, the restriction must 
 arise by express words or necessary implication, to pro- 
 duce such an effect.^ The reason is, that the direction 
 to pay to a particular person does not necessarily im- 
 port, that it shall not be paid to any other person, to 
 whom he may indorse it ; but only that it shall not 
 
 it over to another person, because, as it was said, the assignee purchases 
 it for a valuable consideration, and, therefore, takes it with all its privileges, 
 qualities, and advantages, the chief of which is its negotiability. (Edie v. 
 East India Company, 2 Burr. 1226.) In a case (Bland v. Ryan, Peake, 
 Addend. 39) before Lord Kenyon, he doubted, whether a Bill, indorsed in 
 blank by A. to B., can be restrained in its negotiability by B.'s writing 
 over A.'s indorsement, ' Pay the contents to C. or order,' In a note, the 
 reporter has collected the cases, showing, that, in general, a restrictive in- 
 dorsement may be made by a subsequent Holder, after an indorsement in 
 blank ; but observes, that the recent cases do not establish the right of an 
 Indorsee in blank to write over the Indorser's name, bat only, that a re- 
 strictive indorsement may be made below an indorsement. But the case 
 of Clark v. Pigot (Salk. 126, 12 Mod. 192) seems to be an authority to 
 prove that this may be done. It has long been settled, on the ai)ove prin- 
 ciple, that any Indorser may restrain the negotiability of a Bill, by using 
 express words to that effect, as by indorsing it, ' Payable to J. S. only ; ' 
 or by indorsing it, ' The within must be credited to J. S.' (Archer v. Bank 
 of England, Dougl. 637 ; Chitty on Bills, ch. 6, p. 258, note, 8th edit. 
 1833), or by any other words clearly demonstrating his intention to make 
 a restrictive and limited indorsement. But a mere omission; in the indorse- 
 ment, of the words, ' or order,' will not, in any case, prevent a Bill from 
 being negotiable, ad infinitum." Chitty on Bills, ch. 6, p. 260, 261 (8th 
 edit. 1833.) See Scares v. Glyn, 8 Adolph. & Ellis, N. S. 24. 
 
 1 Chitty on Bills, ch. 6, p. 257, 258 (8lh edit. 1833) ; Bayley on Bills, 
 ch. 5, § 1, p. 128 (5th edit. 1830) ; Moore v. Manning, Com. R. 311 ; 
 Achesonu. Fountain, 1 Sir. R. 557 ; Edie v, East India Company, 1 Black. 
 R. 295, 2 Burr. 1216. 
 
CH. VII.] TRANSFER OF. 253 
 
 pass without his indorsement' So, if a Bill is indorsed, 
 " Pay to the order of A. B.," he may not only indorse 
 it, but he may, in his own name, sue and recover upon 
 the same, without averring, that he has made no order.® 
 § 211. It is not perhaps, easy, in all cases, to assert, 
 what language will amount to a restrictive indorsement, 
 or, in other words, what language is suflBcient to show 
 a clear intention to restrain the general negotiability of 
 the instrument, or the general purposes, to which the 
 indorsement might otherwise entitle the Indorsee to 
 apply it. Where the indorsement is, " Pay to A. B. 
 only," there the word " only " makes it clearly restric- 
 tive, and does not authorize a payment or indorsement 
 to any other party.^ So, if a Bill should be indorsed, 
 " The within to be accredited to A. B.," * or, "Pay the 
 within to A. B. for my use," ^ or, " Pay the within to 
 A. B. for the use of C. D.," ^ it would be deemed a re- 
 strictive indorsement, so far as to restrain the negotia- 
 bility, except for the very purposes indicated in the 
 
 1 Ibid. 
 
 " Ibid. ; Fisher v. Pomfret, Carth. R. 403 ; Smith v. McClure, 5 East, 
 R. 476 ; Ante, § 19, 66. Heineccins informs us, that the law is different 
 in Germany ; for, in the like case, A. B. has no right to receive payment, 
 but can only indorse it. " Quin aliquando et invitus alii cambium cedere 
 tenetur, si illi inest clausula, der Herr zahle an Titii Ordre. Tunc enim 
 Titio solvi non potest, sed ejus indossatario. Heinecc. de Camb. cap. 2, 
 § 8 ; Ante, § 19, 56, 206, note. 
 
 3 Chitty on Bills, eh. 6, p. 258 to 261, 263, 264 (8th edit. 1833) ; Archer 
 V. Bank of England, Doug. R. 637, 638; Bayley on Bills, ch. 5, ^ I, 
 p. 135, 126 (5th edit. 1830) ; Edie v. East India Company, 2 Burr. 1216, 
 1227 ; Power v. Furnice, 4 Call, R. 411 ; 1 Bell, Comm. B. 3, § 4, p. 401, 
 402 (5th edit.) 
 
 4 Ibid. ; Archer v. Bank of England, Doug, R. 615, 637. 
 
 5 Ibid. ; Sigourney v. Lloyd, 8 B. & Cressw. 622, 5 Bing. R. 525, 3 
 Younge & Jerv. 229 ; Wilson v. Holmes, 5 Mass. R. 543 ; Savage v. 
 Merle, 5 Pick. R. 85. 
 
 6 Ibid. ; Treuttel v. Barandon, 8 Taunt. R. 100. 
 
 B. OF EX. 22 
 
254 BILLS OF EXCHANGE. [CH. VII. 
 
 indorsement. In every such case, therefore, although 
 the Bill may be negotiated by the Indorsee, yet every 
 subsequent Holder must receive the money, subject to 
 the original designated appropriation thereof; and, if 
 he voluntarily assents to, or aids in, any other appropri- 
 ation, it will be a wrongful conversion thereof, for which 
 he will be responsible.^ 
 
 § 212. The French Law, in like manner, recognizes 
 the right of the Indorser to make a restrictive indorse- 
 ment. This is usually done by a direction, " Pay on 
 my account to such a one " (Pour moipaierez d, iin tel) ; 
 in which case, the payment can be made only to the 
 person designated.* If it is intended to clothe the 
 party with authority to procure payment through any 
 other person, then the words are added, "to his order" 
 [ou dj son ordre) ; and, in that event, and in that only, 
 the Bill may be negotiated to a third person, but still 
 for the use of the Indorser.^ Heineccius informs us, 
 that a like difference in the mode of making indorse- 
 ments prevails in Germany, in order to accomplish the 
 like purposes. Id vera prcEcipue olservandum, Cambia 
 cedi vel indossari lifariam. Aid enim ita improprie fit 
 cessio, ut alter procurator indossantis fiat in rem alienam, 
 quod fit formula, vor mich an Herrn Javolenus, soil mir gute 
 Zahlung seyn, vel, es soil mir validiren : aut cessio est vera 
 et propria, eum in finem facta, ut cessionarius fiat dominus 
 cambii, quod fit formula, vor mich an Herrn Javolenus, 
 
 1 Ibid. ; Treuttel v. Barandon, 8 Taunt. R. 100 ; Sigouiney v. Lloyd, 
 3 Younge & Jerv. 229 ; Bayley on Bills, ch. 6, § 1, p. 128, 129 (5th edit. 
 1830.)' 
 
 2 Pothier de Change, n. 23, 42, 89 ; Pardessus, Droit Comm. Tom. 2, 
 ^ 348 ; Merlin, Repertoire, Endossement. 
 
 3 Pothier, ibid. See Pardessus, Tom. 2, art. 353 to 355. 
 
CH. VII.] TRANSFER OF. 255 
 
 Valuta von demselben. Prior indossatarius, quia tantum 
 procurator est, camhium dUeriiis indossare nequit ; huic 
 autem regulariter id est integrum. Unde scepe sex vel plures 
 cessiones dor so camihii inscriptce leguntur, quale cambium tunc 
 vocari solet ein Giro, vel, ein girirter Wechsel} 
 
 § 213. But, although restrictive indorsements are 
 thus clearly allowed, hoth by our law and the foreign 
 law, still, as they necessarily tend to impair the nego- 
 tiability of Bills of Exchange, an intention to create 
 such a restriction will not be presumed from equivocal 
 language, and especially where it otherwise admits of 
 a satisfactory interpretation. Thus, for example, an 
 indorsement, " Pay the contents to A. B., being part 
 of the consideration on a certain deed of assignment 
 executed by the said A. B., to the Indorser and others," 
 has been held not to be restrictive.® So, where a Bill 
 was made payable to A. and B. or Bearer, and the name 
 of their bankers was written across it, and afterwards 
 A. transferred the check, on his own account, to an- 
 other banker, it was held, that the transfer to the latter 
 was good, unless, by the common understanding of 
 bankers, there was information of a special appropri- 
 ation of the check to the bankers of A. and B.^ 
 
 § 214. A qualified indorsement is (as we have seen^) 
 one which qualifies or limits the general responsibility 
 of the Indorser ; but it in no manner whatsoever re- 
 strains the negotiability of the Bill. Thus, for example, 
 an indorsement of a Bill to A., "without recourse," or 
 
 ^ Heinecc. de Camb. cap. 3, ^ 10 ; Id. ^ 19. 
 
 2 Potts V. Reed, 6 Esp. R. 57 ; Bayley on Bills, ch. 5, § 1, p. 127 (5th 
 edit. 1830) ; Chitty on Bills, ch. 6, ,p. 259, 260 (8th edit. 1833.) 
 
 3 Stewart v. Lee, 1 Mood. & Malk. 158 ; Chitty on Bills, ch. 6, p. 260 
 (Sth edit. 1833) ; Bayley on Bills, ch. 8, p. 324 (5th edit. 1830.) 
 
 4 Ante, § 206. 
 
256 BILLS OF EXCHANGE. [CH. VII. 
 
 " at his own risk," will not restrain the negotiability of 
 the Bill; but will simply exclude any responsibility of 
 the Indorser, on the non-acceptance or non-payment 
 thereof' Neither will an indorsement to A. " or order, 
 for my use," restrain its negotiability, although the In- 
 dorsee must take it, subject to my use.^ And, a fortiori, 
 an indorsement expressive of the consideration, for 
 which the indorsement is made, will not restrain the ne- 
 gotiability ; as, for example, an indorsement, " Pay the 
 contents to A. B., being part payment of goods sold by 
 him to me, or being in full of debt due to him by 
 me." ^ 
 
 § 215. On the other hand, an indorsement by the 
 Payee, or other lawful Holder, may enlarge his respon- 
 sibility beyond that ordinarily created by law, without 
 in any manner, restraining the negotiability of the Bill. 
 We have already seen, that the obligation created by 
 law, in cases of indorsement, is conditional, and requires 
 the Holder to make due demand, and give due notice to 
 
 1 Rice II. Stearns, 3 Mass. R. 225; Chitty on Bills, oh. 6, p. 251, 254, 
 261 (8th edit. 1833) ; Id. p. 37 ;. Pike v. Street, 1 Mood & Malk. 126 ; 
 Goupy V. Harden,? Taunt. R. 159, 162 ; Welch v. Lindo, 7 Cranch, 159 ; 
 Pardessus, Droit Comm. Tom. 2, art. 348 ; 3 Kent Comm. Lect. 44, p. 92, 
 93 {4th edit.); Pothier de Change, n. 42, 89. — In Mott v. Hicks (I 
 Cowen, R. 513,) where a note was payable to A. B. or order, A. B. in- 
 dorsed it thus, " A. B. agent." It was held by the Court, that this was 
 a restrictive or qualified indorsement, and exempted A. B. from all per- 
 sonal responsibility on the note ; and was equivalent to writing over it, 
 that it was at the risk of the Indorsee. But, quaere, if this case can be 
 supported at law. See Story on Agency, ^ 154, 159, 276, and cases there 
 cited. 
 
 2 Ante, § 211; Bayley on Bills, ch. 5, § 1, p. 128, 129, 134 (5th edit. 
 1830) ; Evans v. Cramlington, Carth. R. 5, 2 Vent. 307, Skinn. R. 264 ; 
 Treuttel v. Barandon, 8 Taunt. R. 100. 
 
 3 Potts V. Reed, 6 Esp. R. 57 ; Bayley on Bills, ch. 5, § 1, p. 127 (5th 
 edit. 1830.) 
 
CH. VII.] TRANSFER OF. 257 
 
 the Indorser of the non-acceptance or non-payment of 
 the Bill, and, if he omits so to do, the Indorser is dis- 
 charged." But an Indorser may absolutely guarantee 
 the payment of the Bill in all events, and dispense with 
 any such due demand or notice.^ In such a case, there 
 
 1 Ante, § 107 to 109. 
 
 2 Uphain V. Prince, 12 Mass. R. 14. Bat see, contra, Taylor v. Binney, 
 7 Mass. R. 479 ; Canfield v. Vaughan, 8 Martin, R. 682 ; Allen v. Right- 
 mere, 20 Johns. R. 365; Ketohell «. Barnes, 24 Wend. R. 456. — I am 
 aware, that some doubt may exist upon this point, although it appears to 
 me, that the true principle is as stated in the text. The true import of 
 such a guaranty seems to me to be, that the Payee means to say, I in- 
 dorse and transfer this Bill to you, and I agree absolutely to pay the 
 same, if not paid by the Acceptor, and •waive my general rights as In- 
 dorser, and claim only such demand and notice as a Guarantor might have. 
 In Taylor v. Binney, (7 Mass. R. 479,) the note was payable to A. B. or 
 order ; and after the note became due, and remained unpaid, A. B. in- 
 dorsed it, as follows ; " Dec'r. 13, 1805. I guarantee the payment of the 
 within note, in 18 months, provided it cannot be collected of the Promisor 
 before that time." A. B. then passed the note, with this indorsement, to 
 a third person, who passed it, without his own indorsement, to the plain- 
 tiff, who sued the Indorser. The Court held the action not maintainable. 
 There were many special circumstances in the case. Mr. Justice Sewall 
 in delivering the opinion of the Court, said ; " In the case at bar, the 
 plaintiff relies on an indorsement, which is not blank in the form of it, but 
 completed by the Indorser himself. The note, with the words of the 
 Payee in his indorsement, are to be construed together as one written in- 
 strument. The special guaranty, expressed in that indorsement, is the 
 whole ground, upon which the present action against this defendant can 
 be maintained; and the plaintiff does not rely upon any implied responsi- 
 bility, resulting from the indorsement in the common form. If this in- 
 dorsement, in the whole tenor of it, may be construed to be, not only a 
 guaranty, but also a transfer and assignment of the note, which seems to 
 have been the intention and understanding of the parties, the principal ob- 
 jection to the title of the plaintiff remains in force. There is no name in- 
 serted of the party to be entitled by the indorsement ; and, if this omission 
 might be supplied by extraneous evidence, the facts proved in the case ren- 
 der it certain, that the present plaintiff was not the party to the guaranty 
 or assignment, when it was made ; and no evidence has been offered of 
 any subsequent privity or assent between him and the defendant. But the 
 argument of the plaintiff is, that the omission of the name of the Indorsee 
 
 22* 
 
258 BILLS OP EXCHANGE. [CH. VII. 
 
 is no reason to infer, that the Indorser means to restrain 
 the further negotiability of the Bill, even if he does 
 
 is evidence of an intention in the defendant and the other immediate party, 
 ■whoever he was, to give an unlimited currency to this note, and to accom- 
 pany it vrith the collateral promise of the Payee ; according to the usage 
 and construction, in ordinary cases, of blank indorsements upon negotiable 
 Bills or Notes. But, in the case at bar, there is no necessary implication 
 to this effect, arising from the circumstance of the omission of the name of 
 the Indorsee or party to the guaranty. This may have been a mistake or 
 accident. The negotiation was not upon the credit of the original Promisor, 
 but wholly upon the final responsibility of the Indorser ; the ability of 
 the Promisor, considering the whole tenor of this indorsement, remaining 
 at his risk ; and the assignnient seems to be rather a confidence for the col- 
 lection of the note, than an absolute transfer of the property. The gua- 
 ranty, taken independently of the note, is a promise not negotiable, being 
 conditional, and not absolute ; and, connected with it, the supposition is 
 altogether unreasonable and improbable, of an unlimited currency intended 
 for the note itself, at the risk of the Indorser. The plaintiif fails, there- 
 fore, in the evidence necessary to his title, even admitting the usage cited, 
 respecting notes indorsed in blank, to have any application, where the in- 
 dorsement is full and restrictive, and not at all in the form of a blank in- 
 dorsement, unless in the mere circumstance of omitting the name of the 
 indorsee." In Upham v. Prince (12 Mass. R. 14,) the note was payable 
 to A. B. or order, on demand ; A. B. indorsed the note, "I guaranty the 
 payment of this note within six months ; " and it was then transferred to 
 C. D., who transferred it to the plaintiff. The note not being paid at the 
 end of the six months, the plaintiff brought a suit thereon against A. B. 
 The Court, upon that occasion, said ; " Whatever effect such a writing on 
 the back of a note might legally have, beyond that of an assignment of the 
 note, we do not think it necessary to decide. But we are all of opinion, 
 that the note did not lose its negotiability by this special indorsement, any 
 more than it would, if it had been indorsed with the words, 'without re- 
 currence to the Indorser,' which is a common form of indorsement, where 
 the Indorser does not intend to remain liable. The defendant's engage- 
 ment amounts to a promise, that the note should, at all events, be paid 
 within six months. Now, this promise may not be assignable in law ; and 
 yet the note itself may be assignable by the party, to whom it was so 
 transferred, so that, upon non-payment of it by the Promisor, the Holder 
 would have a right of action against Prince, as Indorser. A demand 
 was made upon the Fromissor within a short time after the date of the 
 note ; and notice was given to the Indorser, as soon as he returned to 
 this country, he being absent during the whole of the six months the 
 
CH. Til.] TKANSFER OF. 259 
 
 mean to restrain the effect of the guaranty to his im- 
 mediate Indorsee.^ And, if the indorsement is either 
 without the name of any person, to whom it is indorsed, 
 but a blank is left for the name, or if the Bill is in- 
 dorsed to a person or his order, or to the Bearer, with 
 such guaranty, there is certainly strong reason to con- 
 tend, that he means to give the benefit of the guaranty 
 to every subsequent Holder ; ^ and, at all events, such 
 a Holder has a right to hold him as Indorser of the Bill, 
 as he has left its negotiability unrestrained." 
 
 § 215 a. Where a person makes an indorsement in 
 blank on a Bill, it will not be construed to be a gua- 
 ranty, unless where such a construction is indispen- 
 sable to give some effect to the indorsement, and to 
 
 note was to run. It does not appear, that he bad any dwelling-house 
 or place of business here while he was absent, so that a call upon him, 
 as soon as he returned, was all that could be done or required. We 
 think, upon the facts agreed, that the defendant must be called." This 
 last decision seems to me to contain the true doctrine ; and it is not easy 
 to perceive what reasonable objection lies to it. The indorsement 
 amounts, in legal effect, to an agreement to be bound as Indorser for 
 six months, and that a demand need not be made upon the Maker of the 
 note for payment at an earlier period. It is, therefore, a mere waiver of 
 the ordinary rule of the law, as to reasonable demand and notice upon 
 notes payable on demand. See, as to guaranty of Bills, Folhier de 
 Change, n. 26, 50, 122, 123; Code de Comm. de I'Aval. art. 141, 142 ; 
 Pardessus, Droit Comm. Tom. 1, art. 351, 394 to 399; Chitty on Bills, 
 eh. 6, p. 272, 273 (8th edit. 1833) ; 3 Kent, Comm. Lect, 44, p. 90, note 
 {d) (4th edit.) ; Ketchell v. Barnes, 24 Wend. R. 456. 
 
 ' Ibid. 
 
 3 See on this point, Miller v. Gaston, 2 Hill, N. Y. R. 188 ; McLaven 
 V. Watson, 26 Wend. R. 425 ; Post, § 372, and note, § 455 to § 458, and 
 note ; Hall u. Newcomb, 3 Hill, N. Y. R. 233. 
 
 3 Upham ». Prince, 12 Mass. R. 14. See Blakeley v. Grant, 6 Mass. R. 
 386 ; Ketchell v. Barnes, 24 Wend. R. 456 ; Allen v. Rightmere, 20 
 Johns. R. 365. But see, contra, Taylor v. Binney, 7 Mass. R. 479 ; Can- 
 field V. Vaughan, 8 Martin, R. 682. See, also, Lamourieux v. Hewit, 5 
 Wend. R. 307. 
 
260 BILLS OF EXCHANGE. [CH, VII. 
 
 prevent an entire failure of the express or presumed 
 contract. Thus, if a Bill be negotiable, and the Payee 
 should indorse it in blank, the indorsement will not 
 enure as a guaranty, but simply as the contract of an 
 Indorser. The likfe rule will prevail if the indorsement 
 is made by another person than the Payee ; for he may 
 be well deemed as intending to stand in the character 
 of a second Indorser after the Payee, although he was 
 privy to the original consideration between the Drawer 
 and the Payee, and indorsed it for the accommodation 
 of the Drawer.' But it would have been otherwise if 
 the Bill had not been negotiable ; for then the in- 
 dorsement would be utterly unavailable, unless as a 
 guaranty.® 
 
 § 216. Sometimes the indorsement contains a clause, 
 that the Bill may be returned, and notice may be given 
 of the dishonor without a protest or without expense. 
 This is often done in France by adding to the indorse- 
 ment the words, "retour sans protSt," ot " sans frais." ^ 
 In such a case, the omission by the Indorsee, or any 
 subsequent Holder, to protest the Bill "in case of a dis- 
 honor, will in no manner prejudice his rights ; but he 
 will be entitled to the same in as ample a manner as if 
 a protest had been duly made. Sometimes, also, the 
 indorsement limits the reexchange and expenses in 
 case of dishonor ; and this will of course be obligatory 
 upon all the parties taking the Bill.* 
 
 1 Seabury v. Hungerford, 2 Hill, N. Y. R. 84 ; Hall v. Newcomb, 
 3 Hill, N. Y. R. 233. 
 
 2 Ibid. 
 
 3 Chitty on Bills, ch. 5, p. 188 (8th edit. 1833) ; Pardessus, Droit 
 Coram. Tom. 2, art. 425. 
 
 * Chitty on Bills, oh. 5, p. 188 (8th edit. 1833.) 
 
CH. vn.] TRANSFER OF. 261 
 
 § 217. la respect to conditional indorsements, a very 
 few words may suffice.' They may be on a condition 
 precedent or a condition subsequent; but, in either 
 case the Indorser will be bound only to the extent of 
 his engagement, and upon a full compliance with the 
 terms thereof. If the terms are not complied with, the 
 right and property in the Bill will revert to the In- 
 dorser, and he may recover upon the same in the same 
 manner as if he had always been the Holder. Thus, 
 where a Bill was indorsed, " Pay the within to Messrs. 
 A. & B., or order, upon my name appearing in the 
 Gazette as Ensign in any regiment of the line, between 
 the 1st and the 64th, if within two months from this 
 date ; " and the Bill was subsequently indorsed by A. 
 & B., and was paid by the Acceptor to the Holder ; it 
 was held, that the name of the Indorser never having 
 appeared in the " Gazette " as Ensign in any regiment 
 of the line, the Indorser was entitled to recover the 
 money from the Acceptor, notwithstanding such pay- 
 ment to the Holder.® 
 
 § 218. There is no limit to the number of successive 
 indorsements which may be made upon a Bill ; and, if 
 they cannot all be written on the Bill itself, a paper 
 may be annexed thereto, which (as we have seen ^) is 
 called, in France, Alhnge, on which the later indorse- 
 ments may be written, and which will be deemed a 
 part of the Bill, and of the same obligation as if written 
 
 * Chitty on Bills, ch. 6, p. 261 (8th edit. 1833) ; Pardessus, Droit 
 Comm. Tom. 2, art. 341. 
 
 2 Robertson v. Kensington, 4 Taunt. E. 30 ; Chitty on Bills, ch. 6, 
 p. 261 (8th edit. 1833) ; Bayley on Bills, ch. 5, p. 126 (5th edit. 1830.) 
 
 3 Ante, § 204. 
 
262 BILLS OF EXCHANGE. [CH. VII. 
 
 upon the Bill itself.^ Sometimes a Bill, •which has 
 been indorsed by a prior Indorser, comes back again to 
 him by reindorsement in the course of business. In 
 such a case, he 'will be reinstated in his original rights 
 in the Bill ; but he will ordinarily have no claim upon 
 any of the Indorsers subsequent to his own name. 
 Peculiar circumstances may exist, which may vary the 
 general rule; but then the party would not claim 
 strictly in his character as a regular party to the Bill, 
 but upon a special contract growing out of the circum- 
 stances.^ 
 
 § 219. Sometimes an Indorser, like a Drawer,^ in 
 order to avoid the inconvenience or necessity of a 
 return of the Bill, in case it should be dishonored by 
 the Drawee, directs the Payee or other Holder, in case 
 of need, to apply to Messrs. A. & B. (au besoin chez 
 
 Messrs. A. & B., a .) The meaning of this is, 
 
 that the Payee or other Holder is, in case of dishonor, 
 to, apply to the persons named, who will accept the 
 same for the honor of the Indorser, or Drawer, as the 
 case may be. In such a case, the Holder may, and 
 indeed is bound to apply to the persons so addressed, 
 who may accept and pay the same without any pre- 
 vious protest, in which respect they di£fer from Accept- 
 ors sufra prated ; and the persons so addressed will, 
 upon payment, have a complete remedy for the same 
 
 1 Chitty on Bills, ch. 6, p. 262 (8th edit. 1833) ; Ante, § 204 ; Pardes- 
 sus. Droit Comm. Tom. 2, art. 343 ; Fothier de Change, n. 24 ; Folger v. 
 Chase, 18 Pick. R. 63. 
 
 2 Chitty on Bills, ch. 2, p. 29, 30 (8th edit. 1833) ; Id. ch. 4, p. 239 ; 
 Bishop V. Hayward, 4 Terra K. 470; Britten a. Webb, 2 Barn. & 
 Cressw. 483 ; Morris v. Walker, >15 Adolph. & Ellis, N. Series, 589 ; 
 Bayley on Bills, ch. 9, p. 329 to 331, 388 (5th edit. 1830.) 
 
 3 Ante, ^ 65. 
 
CH. VII.] TEANSFBR OP. 263 
 
 against the party, for whose account they shall thus 
 accept and pay the Bill.' 
 
 § 220. In the next place, as to the Time of Transfer. 
 In general, it may he stated, that a transfer may he 
 made at any time, while the Bill remains a good sub- 
 sisting unpaid Bill, whether it be before or after it has 
 arrived at maturity.^ But the rights of the Holder 
 against the antecedent parties may be most materially 
 affected by the time of the transfer. If the transfer is 
 made before the maturity of the Bill to a bond fide 
 Holder, for a valuable consideration, he will take it free 
 ■of all equities between the antecedent parties, of which 
 he has no notice.^ If the transfer is after the maturity 
 
 1 Chitty on Bills, ch. 5, p. 188 (8th edit. 1833) ; Id. ch. 6, p. 262; Par- 
 dessus, Droit Comm. Tom. 2, art. 206, 341, 385, 421 ; Ante, § 58, 565. 
 This mode of drawing and indorsing Bills au iesoin is said to be common 
 on the continent of Europe. But it is far less frequent in England and 
 America, although there would not saem to be any doubt, that the legal 
 effect thereof is the same in all these countries. See Chitty on Bills, ch. 
 5, p. 188 (8th edit. 1833.) 
 
 2 Chitty on Bills, ch. 6, p. 242 (8lh edit. 1833) ; Mitford v. Waleot, 
 1 Ld. Raym. 574; Boehm v. Stirling, 7 Term R. 423; Bayley on Bills, 
 ch. 5, § 3, p. 156 to 158 (5th edit. 1830) ; 1 Bell, Comm. B. 3, ch. 2, 
 § 4, p. 402, 403 (5th edit.) ; Havens v. Huntington, 1 Cowen, R. 387 ; 
 Ante, ^ 183, 191 ; Leavitt v. Putnam, 1 Sandford, Superior Ct. N. Y. E. 
 199. Bills are rarely drawn payable on demand, and therefore, the prin- 
 ciples applicable to the point when they are to be deemed overdue or not, 
 will more naturally arise when we come to the consideration of the cases 
 of notes and checks payable on demand. In the cases of Bills made pay- 
 able at sight, or at so many days after sight, the time when they should 
 be presented, and of course the time when they shall be deemed overdue 
 will be discussed under the head of the Time when Bills are to be pre- 
 sented. 
 
 3 Ante, § 14, 187 ; Chitty on Bills, ch. 6, p. 220, 221, 240 to 243 (8th 
 edit. 1833) ; Boehm v. Sterling, 7 Term. R. 423 ; Bayley on Bills, ch. 
 5, § 3, p. 157 to 163, 166 (5th edit 1830) ; Taylor v. Mather, 3 Term 
 R. 83, note ; Brown v. Davis, 3 Terih. R. 80 ; Bosanquet v. Dudman. 
 1 Stark. R. 1 ; Dunn v. O'Keefe, 5 M. & Selw. 282, 6 Taunt. R. 305; 
 Thompson v. Gibson, 13 JVIartin, R. 150; Marston v. Allen, 8 Mees. & 
 
264 / BILLS OF EXCHANGE. [CH. -Vll. 
 
 of the Bill, the Holder takes it as a dishonored Bill, 
 and is affected by all the equities between the original 
 parties, whether he has any notice thereof or not.' But 
 when we speak of equities between the parties, it is not 
 to be understood by this expression, that all sorts of 
 equities existing between the parties, from other inde- 
 pendent transactions between them are intended j but 
 only such equities as attach to the particular Bill, and, 
 as between those parties, would be available, to control, 
 qualify, or extinguish any rights arising thereon.^ Still, 
 however, subject to such equities, the Holder, by in- 
 dorsement after the maturity of a Bill, will be clothed 
 with the same rights and advantages as were possessed 
 by the Indorser, and may avail himself of them accord- 
 ingly.^ 
 
 § 221. The law of France, in a great measure, recog- 
 nizes the like distinction between indorsements before, 
 and indorsements after, the maturity of a Bill. In the 
 latter case, all the equities between the other parties 
 
 Welsb. 504 ; Savings Bank of New Haven v. Bates, 8 Connect. R. 505 ; 
 Swift V. Tyson, 16 Peters, R. 1. 
 
 1 Ibid ; Bayley on Bills, ch. 5, § 3, p. 162, 163 (5th edit. 1830) ; Chitty 
 on Bills, ch. 6, p. 243, 244 (8th edit. 1833) ; Lee v. Zagury, 8 Taunt. R. 
 114 ; Rothschild v. Corney, 9 Barn. & Cressw. 391 ; Lloyd v. Howard, 
 15 Adolph. & Ellis, N. S. 995 ; Barber v. Richards, 6 Welsby, Hurls- 
 tone & Gordon, 63 ; 3 Kent, Comm. Lect. 44, p. 31, 92 (4th edit.) ; Down 
 V. Hailing, 4 Barn. & Cressw. 330 ; Andrews v. Pond, 13 Peters, R. 65. — 
 It seems, that, in Scotland, the indorsem'ent of a Bill, which is overdue, 
 does not affect the Indorsee with the equities between the original parties, 
 unless there are some marks of dishonor on the Bill. 1 Bell, Comm. B. 
 3, ch. 2, § 4, p. 403 (5th edit.) 
 
 3 Bayley on Bills, ch. 5, § 3, p. 161, 162 (5th edit. 1830) ; Burrough 
 V. Moss, 10 Barn. & Cressw. 563 ; Ante, ^ 187, note (3) ; Whitehead v. 
 Walker, 11 Mees. & Welsb. 696. 
 
 3 Chitty on Bills, ch. 6, p. 245 (8th edit. 1833) ; Chalmers v. Lanion, 
 1 Camp. R. 383. 
 
CH. VII.] TKANSFER OF. 265 
 
 are not only let in, but even those of the creditors of 
 the Indorser, ■who have, before the indorsement, and 
 after the maturity, levied attachments of the debt in 
 the hands of the debtor.^ 
 
 § 222. Indorsements are sometimes made upon Bills 
 containing blanks, to be afterwards filled up, and some- 
 times upon blank paper, which are intended to be filled 
 up, so as to make the party an Indorser. In all such 
 cases, as against him, the Bill is to be treated exactly 
 as if it had been filled up before he indorsed it, and 
 he will be bound accordingly.® And it will make no 
 difference in the rights of the Holder, that he knows 
 the facts ; unless, indeed, there should be a known 
 fraud upon the Indorser, or a known misappropriation 
 of the Bill to other purposes than those which were 
 intended.* 
 
 § 223. But there is a period, when Bills cease alto- 
 gether to be negotiable, in whosesoever hands they may 
 then be, so far as respects the antecedent parties there- 
 to, who would be discharged therefrom by the payment 
 thereof. Thus, for example, when a Bill has once been 
 paid by the Acceptor, after it has become due, (although 
 not, if paid before due, and the fact be unknown to the 
 
 ' Pardessus, Droit Comra. Tom. 2, art. 351, 352 ; Chitty on Bills, ch. 
 6, p. 242, and note (c) (8th edit. 1833.) 
 
 2 Chitty on Bills, ch. 6, p. 240, 241 (8th edit. 1833) ; Snaith v. Mingay, 
 1 Maule & Selw. 87 ; Cruchley i;. Clarance, 2 Maule & Selw. 90 ; Bay- 
 ley on Bills, ch. 1, § 10, p. 36 (5th edit. 1830) ; Id. ch. 5, § 3, p. 167, 
 168; Russell u. Langstaffe, Doug. R. 514; Usher «. Dauncey, 4 Camp. 
 R. 97 ; Pasmore v. North, 13 East, R. 517 ; Putnam v. Sullivan, 4 Mass. 
 R. 45 ; Mitchill v. Culwer, 7 Cowen, R. 336 ; Violett v. Patton, 5 Cranch, 
 R. 142 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 390 (5th edit.) But see 
 Abrahams v. Skinner, 12 Adolph. & Ellis, R. 763. 
 
 3 Ibid. 
 
 B. OF EX. 23 
 
266 BILLS OP EXCHANGE. [CH. VII. 
 
 Holder/) it loses all its vitality, and can no longer be 
 negotiable.^ So, if it be dishonored by the Acceptor, 
 and is then taken up by the Drawer, he cannot nego- 
 tiate it, so as to charge the Indorsers, although he 
 might, so as to charge himself, or the Acceptor, if the 
 latter be liable to him.^ Still, however, Bills remain 
 negotiable even after payment, so far as respects the 
 parties, who shall knowingly negotiate the same after- 
 wards ; for, in such a case, the negotiation cannot pre- 
 judice any other persons, and will only charge them- 
 selves.^ [But the indorsement of a negotiable note 
 after its dishonor, has been held to be a new and inde- 
 pendent contract, distinct from the original note, and 
 in its eifect between the indorser and indorsee distinct 
 from the negotiable character of such note ; so that if 
 
 1 Bayley on Bills, ch. 5, § 3, p. 166 (5th edit. 1830) ; Burridge v. 
 Manners, 3 Camp. R. 194; Chitty on Bills, ch. 6, p. 248, 249 (8th edit. 
 .1833.) 
 
 2 Bayley on Bills, ch. 5, § 3, p. 165, 166 (5th edit. 1830) ; Beck v. Rob- 
 ley, 1 H. Black. 89, note ; Chitty on Bills, ch. 6, p. 248 (8lh edit. 1833) ; 
 Bartrum v. Caddy, 9 Adolph. & Ellis, 275, 281 ; Jones v. Broadhurst, 
 9 Manning, Granger & Scott, R. 186 ; Williams v. James, 15 Adolph. & 
 Ellis, (N. S.) 505. 
 
 3 Ibid. ; Callow v. Lawrence, 3 Maule & Selw. 95 ; Hubbard v. 
 Jackson, 4 Bing. R. 390 ; Chitty on Bills, ch. 6, p. 248, 249 (8th edit. 
 1833.) 
 
 4 Bayley on Bills, ch. 5, § 3, p. 166 (5th edit. 1830) ; Boehm v. Stir- 
 ling, 7 Term R. 423 ; Callow v. Lawrence, 3 M. & Selw. 95 ; Hubbard 
 V. Jackson, 4 Bing. R. 390; Guild v. Eager, 17 Mass. R. 615; Havens 
 V. Huntington, 1 Cowen, R. 387 ; Mead v. Small, 2 Greenl.K. 207. [And 
 where the Drawer of a Bill, payable to his own order, indorsed it and it 
 was accepted and dishonored, and theJDrawer received it back and paid 
 the amount thereof to his Indorsee, it has been decided that he may return 
 the Bill to such Indorsee for the purpose of suing the Acceptor as Trustee 
 of the Drawer ; and the payment is no answer to an action by such In- 
 dorsee, if there be evidence that on payment by the Drawer the Bill was 
 left in the hand of the Indorsee in order to be put in suit. Williams v. 
 James, 15 Adolph. & Ellis, N. S.] 
 
CII. VII.J TRANSFER OF. 267 
 
 indorsed to a particular person by name, without add- 
 ing the words " or order," or equivalent words of nego- 
 tiability, he cannot transfer it by indorsement so as to 
 enable his indorsee to sue upon it in his own name.^] 
 
 § 224. We have already had occasion to consider, 
 what, in general, are the obligations created by law on 
 the part of Indorsers and Holders of Bills to subsequent 
 Indorsees or Holders thereof.^ Every party, indorsing 
 a Bill, either in blank or in full, and without restriction 
 or qualification, thereby passes the interest and pro- 
 perty in the Bill to the Indorsee, if he takes it for 
 value.^ If he takes it as agent, he has an election to 
 treat it, as to the other parties to the Bill, either as his 
 own property, or as that of his principal ; but as to the 
 latter, the indorsement creates no property whatsoever 
 in him, and the principal may revoke the authority, 
 and reclaim the Bill from him, as long as it remains in 
 his possession.* 
 
 § 225. But, besides amounting to a transfer of the 
 property in the Bill, the indorsement creates (as we 
 have seen*) an implied contract, on the part of the 
 Indorser, that the Bill shall be duly honored ; and, if 
 
 1 Leavitt v. Putman, 1 Sandford, Superior Ct. R., N. Y., 199. 
 
 2 Ante, § 108,111. 
 
 3 Chitty on Bills, ch. 6, p. 265, 266 (8th edit. 1833) ; Code de Cotnm. 
 art. 136; Pothier de Change, n. 79, 80. 
 
 4 Ante, ^ 198, 267, 209 ; Pothier de Change, u. 90 ; Chitty on Bills, 
 ch. 6, p. 255, 256, 260, 268 (8th edit. 1833) ; Id. ch. 9, p. 428, 429; 
 Bayley on Bills, ch. 5, ^ 2, p. 132, 133, 143, 144 (5th edit. 1830) ; Id. ch. 
 10, p. 445; Ex parte Baldwin, 19 Ves. 239 ; Clark v. Pigot, 12 Mod. R. 
 193, 193 ; 1 Salk. R. 156 ; Little v. O'Brien, 9 Mass. R. 423 ; Brigham 
 V. Marean, 7 Pick. R. 40 ; Guernsey v. Burns, 25 Wend. R. 411. Contra, 
 Thatcher v. Winslow, 5 Mason, R. 58 ; Sherwood v. Roys, 14 Pick. R. 
 172. Althongh there is some discrepancy in the authorities, I think that 
 the text contains the true principle. 
 
 5 Ante, ^ 108, 109, 111. 
 
/ 
 
 268 BILLS OF EXCHANGE. [CH. VII. 
 
 not, that he, upon due protest and notice, will pay the 
 amount to the Indorsee, or to any subsequent Holder.^ 
 The indorsement, also, by the like implication, imports, 
 that the antecedent names on the Bill are genuine ; 
 and that he has a good title, under them, to the same.^ 
 Where there is no indorsement by the Holder, but a 
 mere delivery by him,, as in the case of a Bill payable 
 to Bearer, or a Bill having a blank indorsement by the 
 Payee, or some third person, no obligation whatsoever 
 is created, except between the immediate parties to the 
 transfer.^ But, as between the immediate parties, where 
 the transfer by mere delivery is for a preexisting debt, 
 or for any valuable consideration paid or passed at the 
 time, to the person so delivering the Bill, (and not a 
 mere sale or exchange, at the risk of the Taker,) there 
 is an implied obligation, that the Bill is genuine ; * that 
 the names of the parties to prior indorsements are also 
 genuine ;^ and that, as far as the knowledge and infor- 
 mation of the person, passing it, extends, there is no 
 reason to doubt, that it will be duly honored upon pre- 
 
 1 Ante, § 108, 109, 110, 111, 200; Chitty on Bills, ch. 6, p. 265 to 267 
 (8th edit. 1833) ; Bailey on Bills, ch. 5, § 3, p. 169, 170 (5th edit. 1830) ; 
 Pothier de Change, n. 79, 80. 
 
 2 Ibid. But see East India Company v. Tiitton, 3 Barn. & Cressw. 
 280; Ante, § 110, 111. — Pardessus expressly says, that an indorsement 
 amounts to a guaranty of the future solvency of debtors, since the Indorser 
 is a Guarantor in solido with the other persons, whose signatures are on 
 the Bill, of the verity of the Bill, as well as of its payment at maturity. 
 Pardessus, Droit Comm. Tom. 2, art. 347. 
 
 3 Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833) ; Ante, ^ 109. 
 
 ■* Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833) ; Camidgec. 
 Allenby, 6 Barn. & Cressw. 373 ; Ante, § 111. 
 
 5 Ibid. ; Jones v. Ryde, 5 Taunt. K. 488 ; Bayley on Bills, ch. 5, § 3, 
 p. 169, 170 (5th edit. 1830) ; Bruce v. Bruce, 1 Marsh. 163 ; Ante, 
 \ 111. 
 
CH. VII.] TRANSFER OF. 269 
 
 sentmeai' Indeed, the doctrine now established, seems 
 to extend further ; and it is held, that, as between the 
 immediate parties, unless the Bill be taken as absolute 
 payment, or at the risk of the Taker or Transferree, 
 there is an implied undertaking, on the part of the per- 
 son, passing it by mere delivery, that it will be duly 
 honored and paid upon due presentment, and, if not, 
 that he will, upon due notice given to him, pay the 
 amount to the Taker or Transferree.^ 
 
 1 Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, § 1, p. 233, 233 (5th edit. 1830) ; Ante, § 108 to 112 ; Camidge v. 
 Allenby, 6 Barn. & Cressw. 373, 382 ; Beeching v. Gower, 1 Holt, N. P. 
 R. 313. 
 
 2 Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833) ; Ante, § 108, 
 110, 111 ; Camidge v. AUenby, 6 Barn. & Cressw. 373 ; Owenson v. 
 Morse, 7 Term R. 64 ; Ex'parte Blackbriarj 10 Ves. 204 ; Emly v. Lye, 
 15 East, 7, 13, per Bayley, J. This subject seems involved in some per- 
 plexity by the authorities, especially where the Bill, when taken, (as, for 
 example, the Bill of a banker payable to Bearer,) is the Bill of parties, 
 who are insolvent and unable to pay at the time of the transfer, and that 
 fact is unknown to both parties. Under such circumstances, it has been 
 held in Pennyslvania, in the case of the transfer of bank notes, after the 
 bank had failed, unknown to both parties, that the Holder had no right to 
 recover against his immediate Transferrer. Bayard v. Shunk, 1 Watts & 
 Serg. 92. The like doctrine seems to have been intimated in Young w. 
 Adams (6 Mass. R. 182, 185), and was held in Scruggs v. Gass (8 
 Yerger, R. 175), and Lowsey v. Murrell (2 Porter, R. 233.) But the 
 opposite doctrine was maintained in Lightbody v. The Ontario Bank (11 
 Wend. R. 1), and affirmed on error, in the Court of Errors, in 13 Wend. 
 101 ; and in Fogg v. Sawyer, 9 New Hamp. Rep. 365; Post, ^ 419; 
 Harley v. Thornton (2 Hill, R. So. Car. 509), is on the same side. After 
 all, -the point seems to resolve itself more into a question of fact, as to the 
 intent, than as to law ; and it must, and ought, to turn upon this, Whether, 
 taking all the circumstances together, the Bill was taken as absolute pay- 
 ment by the Holder, at his own risk, or only as conditional payment, he 
 using due diligence to demand and collect it. Mr. Chitty has discussed the 
 subject somewhat at large, and says ; " It has been said'that a transfer by 
 mere delivery, without any indorsement, when made on account of a pre- 
 existing debt, or for a valuable consideration passing to the Assignor at the 
 time of the assignment (and not merely by way of sale or exchange of 
 
 S3* 
 
270 BILLS OF EXCHANGE. [CH. VIL 
 
 § 226. la th.e case of a transfer of a Bill drawn in 
 sets, each part must be delivered to the person in 
 
 paper), as, where goods are sold to him, imposes an obligation on the 
 person making it, to the immediate person, in whose favor it is made, equi- 
 valent to that of a transfer by formal indorsement. But this expression 
 seems incorrect ; for the party, transferring only by delivery, can never be 
 sued upon the instrument, either as if he were an Indorser, or as having 
 guarantied its payment, unless he expressly did so. The expression 
 should be, ' that, if the instrument should be dishonored, the Transferrer 
 in such case is liable to pay the debt, in respect of which he transferred it, 
 provided it has been presented for payment in due time, and that due notice 
 be given to him of the dishonor.' A distinction was once taken between 
 the transfer of a Bill or check for a precedent debt, and for a debt arising 
 at the time of the transfer ; and it was held, that, if A. bought goods of 
 B, , and at the same time gave him a Draft on a banker, which B. took with- 
 out any objection, it would amount to payment by A., and B. could not 
 resort to him in the event of the failure of the banker. But it is now set- 
 tled, that, in such case, unless it was expressly agreed, at the time of the 
 transfer, that the Assignee should take the instrument assigned, as pay- 
 ment, and run the risk of its being paid, he may, in case of default of pay- 
 ment by the Drawee, maintain an action against the Assignor, on the con- 
 sideration of the transfer. And, where a Debtor, in pajrment of goods, 
 gives an order to pay the Bearer the amount in Bills on London, and the 
 party takes Bills for the amount, he will not, unless guilty of laches, dis- 
 charge the original debtor. And, where a person obtains money or goods 
 on a bank note, navy bill, or other Bill or note, on getting it discounted, 
 although without indorsing it, and it turns out to be forged, he is liable to 
 refund the money to the party from whom he received it, on the ground 
 that there is in general an implied warranty, that the instrument is genuine. 
 And, though a party do not indorse a Bill or note, yet he may, by a colla- 
 teral guaranty or undertaking, become personally liable. But, as, on a 
 transfer by mere delivery, the Assignor's name is not on the instrument, 
 there is no privity of contract between him and any Assignee, becoming 
 such after the assignment by himself; and, consequently, no person, but 
 his, immediate Assignee, can maintain an action against him, and that only 
 on the original consideration, and not on the Bill itself. And, if only one 
 of several partners indorse his name on a Bill, and get it discounted with a 
 banker, the latter cannot sue the firm, though the proceeds of the Bill were 
 carried to the partnership account. When a transfer by mere delivery, 
 without indorsement, is made merely by way of sale of the Bill or note, as 
 sometimes occurs, or exchange of it for other Bills, or by way of discount, 
 and not as a security for money lent, or where the Assignee expressly 
 agrees to take it in payment, and to run all risks ; he has, in general, no 
 
CH. VII.] TRANSFER OF. 271 
 
 Avhose favor the transfer is made ; otherwise, the same 
 inconveniences would ensue, as upon a neglect by the 
 Drawer to deliver each of them to the Payee ; * that is 
 to say, there may be difficulties in negotiating the Bill, 
 or in obtaining payment thereof. In the first place, the 
 hondfide Holder of any one of the set, if accepted, might 
 recover the amount from the Acceptor, who would not 
 be bound to accept any other of the set, which was 
 held by another person, although he might be the first 
 Holder.^ In the second place, payment to the Holder 
 of any one part of the set would be a complete dis- 
 charge of the Acceptor, as to all the other parts.^ 
 
 right of action whatever against the Assignor, in case the Bill turns out 
 to be of no value. But there can be no doubt, that, if a man assign a Bill 
 for any sufficient consideration, knowing it to be of no value, and the As- 
 signee be not aware of the fact, the former would, in all cases, be compel- 
 lable to repay the money he had received. And it should seem, that, if, 
 on discounting a Bill or Note, the promissory note of country bankers be 
 delivered after they have stopped payment, but unknown to the parties, the 
 person taking the same, unless guilty of laches, might recover the amount 
 from the Discounter, because it must be implied, that, at the time of the 
 transfer, the notes were capable of being renewed, if duly presented for 
 payment." Chitty on Bills, ch. 6, p. 268 to 271 (8th edit. 1833.) 
 
 1 Ante, § 67 ; Bayley on Bills, ch. 5, ^ 3, p. 169 (5th edit. 1830) ; Td. 
 ch. 1, § 9, p. 29. 
 
 2 Perriera v. Jopp, 10 Barn. & Cressw. 450, note (a) ; Holdsworth v. 
 Hunter, 10 Barn. & Cressw. 449 ; Chitty on Bills, ch. 5, p. 176, 177 (8th 
 edit. 1833) ; Pardessus, Droit Comm. Tom. 2, art. 358. 
 
 3 Ibid. 
 
272 BILLS OF EXCHANGE. fCH. VIII. 
 
 CHAPTER VIII. 
 
 PRESENTMENT OP BILLS FOE ACCEPTANCE. 
 
 § 227. Let us next proceed to the consideration of 
 the Presentment of Bills for Acceptance, after which 
 we shall naturally be led to the mode and effect of an 
 acceptance ; and the proceedings to be had upon a non- 
 acceptance. And, in the first place, as to the Present- 
 ment of Bills for Acceptance. The receipt of a Bill 
 implies an undertaking from the receiver or Holder to 
 every party to the Bill, who could be entitled to bring 
 an action on paying it, to present the same in proper 
 time to the Drawee for acceptance, when acceptance is 
 necessary, and to the Acceptor for payment, when the 
 Bill has arrived at maturity, and is payable ; to allow no 
 extra time for payment to the Acceptor ; and to give 
 notice without delay, and within a reasonable time, to 
 every such person, of a failure in the attempt to pro- 
 cure a proper acceptance or payment.' Any default or 
 neglect, in any of these respects, will discharge every 
 such person from responsibility on account of a non- 
 acceptance or non-payment ; and will make it operate 
 generally as a satisfaction of any debt, or demand, or 
 value, for which it was given.^ ^ 
 
 § 228. And here, the first inquiry naturally is. In 
 what cases an acceptance is necessary. The proper 
 
 ' Bayley on Bills, ch. 7, § 1, p. 217 (5lh edit. 1830) : Id. § 2, p. 286 ; 
 Heinecc, de Camb. cap. 4, ^ 26 ; Ante, § 112. 
 
 2 Ante, § 112 ; Bayley on Bills, ch. 7, § 1, p. 217, 218 (5th edit. 1830); 
 Syderbottom v. Smith, 1 Str. R. 649 ; Gee v. Brown, 2 Str. R. 791. 
 
CH. VIII.] PRESENTMENT OF. 273 
 
 answer is, That, upon all Bills payable at sight, or at 
 so many days after sight, or after any other event not 
 absolutely fixed, or after demand, a presentment to the 
 Drawee for acceptance is absolutely necessary, in order 
 to fix the period, when the Bill is to be paid.-' This 
 is sufficiently obvious in the cases of Bills payable at 
 so many days after sight, or after demand, or after a 
 certain event. The like rule prevails in the French 
 Law.® But it is equally true in our law, although not 
 in the French Law, as to Bills payable at sight, which 
 are not, in fact, payable upon presentment, but which 
 have the ordinary days of grace allowed them for 
 payment, after presentment.^ But Bills payable on 
 demand, (which are immediately payable on present- 
 
 1 Bayley on Bills, ch. 7, ^ 1, p, 244, 245 (5th edit. 1830) ; Chitty on 
 Bills, ch. 7, p. 299 (8th edit. 1833) ; Muilman v. D'Eguino, 2 H. Black. 
 365; Holmes v. Kerrison, 2 Taunt. R. 323; Pardessus, Droit Comm. 
 Tom. 2, art. 358, 362,363 ; 3 Kent, Comm. Lect. 44, p. 82, 83 (4th edit.); 
 Aymar v. Beers, 7 Cowen, R. 705 ; Robinson v. Ames, 20 Johns. R. 146 ; 
 W^allace v. Agry, 4 Mason, R. 336 ; S. C. 5 Mason, R. 118 ; Mitchell v. 
 Degrand, 1 Mason, R. 176. 
 
 2 Pardessus, Droit CJomm. Tom. 2, art. 358, 362, 381. 
 
 3 Ibid. ; Chitty on Bills, ch. 9, p. 407, 409, 410 (8th edit. 1833) ; De- 
 hers V. Harriott, 1 Show. R. 163, 164 ; Coleman v. Sayer, 1 Barnard, B. 
 R. 303 ; Anson v. Thomas, cited Bayley on Bills, ch. 3, ^ 2, p. 98, note 
 (22) (5th edit. 1830); Id. ch. 7, § 1, p. 227 ; Townsley u. Sumrall, 2 
 Peters, R. 170, 178 ; Bank of Washington v. Triplett, 1 Peters, R. 25. — 
 In this respect our law differs from the law of France ; for, in that country 
 Bills payable at sight are immediately payable as soon as presented, with- 
 out any allowance of days of grace. Pothier de Change, n. 12, 172, 198; 
 Jousse, sur L'Ord. de 1673, (tit. 5, art. 4, p. 79 (edit. 1802) ; Code de 
 Comm. art. 130 ; Pardessus, Droit Comm. Tom. 2, art. 420 ; Locr^, 
 Esprit du Code de Comm. Tom. 1, art. 130, p. 425. The law of Spain 
 seems to agree with that of France. The law of Holland is like our law. 
 Chitty on Bills, ch.9, p. 409, 410 (8th edit. 1833.) Even in England, the 
 old writers held, that no days of grace were allowed on such Bills of Ex- 
 change. Ibid.; Beawes, Lex Merc, by Chitty, Vol. 1, p. 608, pi. 256 
 (edit. 1813) ; Kyd on Bills, 8, 9 (3d edit. 1795) ; 1 Bell, Comm. B. 3, ch. 
 2, p. 411 (5th edit.) ; Savary, Le Parfait N6gociant, Tom. l,Part. 3, Liv. 
 1, ch. 4, p. 814. 
 
274 BILLS OP EXCHANGE. [CH. VIII. 
 
 ment,) or payable at a certain number of days after 
 date, or after any other certain event, need not be 
 presented for acceptance at all ; but only for payment.' 
 And, here, again, the French Law coincides with ours.- 
 liowever, in praqtice, wherever the Bill is payable, at a 
 certain number of days after date, it is usual, and cer- 
 tainly is prudent, to present them for acceptance.^ If 
 presented, the Holder must -conduct himself in the same 
 way, and make protest, and give notice, in the same 
 manner, as he would upon a Bill payable at so many 
 days after sighf* 
 
 § 229. In the next place. By whom, and to whom, is 
 the Bill to be presented for acceptance ? In general, it 
 must be presented by the Holder, or his authorized 
 agent.^ If not presented by any person having proper 
 authority to hold the Bill, the Acceptor may not be 
 bound to accept it. But if he does, the acceptance will 
 avail in favor of the true Holder.^ As to the person, to 
 whom the Bill should be presented, it is obvious, that 
 it should be presented to the Drawee, if he can be 
 found, or to his authorized agenf If he cannot be 
 
 1 Chitty on Bills, ch. 7, p. 299, 300 (8th edit. 1833) ; O'Keefe v. Dunn, 
 6 Taunt. R. 305 ; S. C. 5 Maule & Selw. 282 ; Orr v. Magennis, 7 East, R. 
 362 ; Com. Dig. Merchant, F. 6 ; 3 Kent, Comm. Lect. 44, p. 83, 83 (4th 
 edit.) ; Post, § 284. 
 
 3 Pardessns, Droit Comm. Tom. 2, art. 358, 362, 381 ; Savary, Le Parf. 
 N6gociant, Tom. 1, Part 3, ch. 4, p. 814. 
 
 3 Ibid. ; Code de Comm. art. 125. 
 
 4 Chitty on Bills, ch. 7, p. 299, 300 (8th edit. 1833) ; O'Keefe u.Dunn, 
 6 Taunt. R. 305; S. C. 5 Maule & Selw. 282; U. States w. Barker, 4 
 Wash. Cir. R. 464 ; Bank of Washington v. Triplett, 1 Peters, R. 25 ; 
 Post, § 284. 
 
 5 Chitty on Bills, ch. 7, p. 300, 301 (8lh edit. 1833.) 
 
 6 Ibid. ; PardessHS, Droit Comm. Tom. 2, art. 360. 
 
 '' Chitty on Bills, ch. 7, p. 301, 303 (8th edit. 1833) ; Cheek v. Roper, 
 5 Esp. R. 175. 
 
CH. VIII.] PRESENTMENT OF. 275 
 
 found, or if he refuses to accept, it should then be pre- 
 sented to the person, if any, to whom, in case of need 
 (au iesoin,) he is directed to apply.' If the Bill be 
 drawn on a partnership, it should be presented to the 
 partners, or some one of them, for acceptance.® If 
 drawn on persons, not partners, it is said, that it should 
 be presented to each of them for acceptance.^ 
 
 § 230. Every Bill drawn imports a contract on the 
 part of the Drawer (as we have seen,) that the Drawee 
 is a person competent to accept, as well as that he 
 will accept the Bill.* If, therefore, the Holder, upon 
 presentment of the Bill, ascertains that the Drawee is 
 an infant, or a feme covert, or otherwise incapable of 
 contracting; he is not bound to take their acceptance, 
 but he may treat the Bill as dishonored, and protest it 
 accordingly, and give notice thereof to the antecedent 
 parties.* The death of the Drawee, or his known bank- 
 ruptcy, or insolvency, or absconding, will be no excuse 
 for the omission of presentment of the Bill for accept- 
 ance ; but, in the former case, a presentment should be 
 made at [to] his personal representatives, if any, or at his 
 last place of domicil; and, in the latter cases, at his 
 place of domicil or business ; and the Bill be protested. 
 
 1 Ante, § 63, 219 ; Chitty on Bills, ch. 7, p. 301 (8th edit. 1833) ; 
 Pothier de Change, n. 137. 
 
 2 Chitty on Bills, ch. 7, p. 321 (8th edit. 1833) ; Pothier de Change, n. 
 137 ; Code de Coram, art. 173. 
 
 3 Chitty on Bills, ch. 7, p. 301, 310, 321 (8th edit. 1833) ; Bayley on 
 Bills, ch. 6, § 1, p. 201 (5th edit. 1S30) ; Molloy, B. 2, ch. 10, § 18, 19 ; 
 Marius on Bills, p. 16. — There may be room for a doubt on this point ; 
 for, if one of the Drawees should refuse to accept, the Holder would not 
 be bound to take the single acceptance of the other; and, if he did, it 
 would be at his own risk, if the Bill was not protested. 
 
 i Ante, ^ 107. 
 
 5 Chitty on Bills, ch. 7, p. 310 (8lh edit. 1833.) 
 
276 BILLS OF EXCHANGE. [CH. VIIL 
 
 and notice of the non-acceptance be, in like manner, 
 given to the antecedent parties.^ 
 
 § 231, In the next place, Within what period of 
 time is the Bill to be presented for acceptance ? This, 
 of course, depends upon circumstances. If the Bill be 
 drawn payable at a certain time after date, it must be 
 presented before, or at the time when, it arrives at ma- 
 turity.^ If it be payable at sight, or at so many days 
 after sight, or on demand, then, unless there be some 
 clear and determinate usage of trade, which ascertains 
 and fixes a definite time, within which the presentment 
 must be made (for, undoubtedly, in such a case the 
 usage would govern),^ the only rule that can be laid 
 down, is, that it must be presented within a reasonable 
 time ; and what will be a reasonable time must depend 
 upon all the circumstances of each particular case.^ 
 
 1 Chitty on Bills, ch. 8, p. 360 (8lh edit. 1833) ; Bjyley on Bills, ch. 7, 
 § 1, p. 218, 219 (5th edit. 1830) ; Pothier de Change, n. 146. 
 
 2 Bayley on Bills, ch. 7, ^ 1, p. 229, 230 (5th edit. 1830) ; Post, § 344 ; 
 Goupy V. Harden, 7 Taunt. R. 159 ; Bachellor v. Priest, 12 Pick. R. 3S9, 
 406 ; Townsley v. Sumrall, 2 Peters, R. 178; Locr6, Esprit du Code de 
 Comm. Torn. 1, Lib. 1, tit. 8, ^ 1, art. 160, p. 499, 500 ; Pardessus, Droit 
 Comra. Tom. 2, art. 358; Heinecc. de Camb. cap. 4, ^ 24. — The language 
 of Heineocius is ; " Porro remittens litteras cambiales, sive solas, sive pri- 
 mas, sine cunctatione ad preesentantem tnittet : nam si eain re in mora est, 
 omne damnum inde emergens ferre cogitur. (Vid. 0. C. Lips. § 28.) Id 
 vero intelligendum tantum est de cambiis platearum, quia cambia feriarum 
 non nisi ineuntibus nundinis (wenn die Einlautung der Messe geschehen) 
 prsesentari, jam supra monuimus. Si certum tempus solutionis a datis 
 litteris eomputandum exprimitur, sufficit, si pauUo ante diem solutionis 
 cambium praesentetur." 
 
 3 Mellish V. Rawdon, 9 Bing. R. 416. 
 
 * Chitty on Bills, ch. 7, p. 301, 302 to 305 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, § 1, p. 227, 228, 232 to 244 (5th edit. 1830) ; Muilman v. 
 D'Eguino, 2 H. Bl. 565, 569 ; Goupy v. Harden, 7 i;aunt. R. 159 ; Mel- 
 lish V. Rawdon, 9 Bing. E. 416 ; Fry v. Hill, 7 Taunt. R. 397 ; Wallace v. 
 Agry, 4 Mason, R. 336 ; S. C. 5 Mason, R. 118 ; Field v. Nickerson, 13 
 
CH. VIII.] PRESENTMENT OF. 277 
 
 Where a Bill is payable at sight, or at a certain num- 
 ber of days after sight, if the Holder keeps it in his 
 own possession for an unreasonable time, and thus 
 locks it up from circulation, he makes the Bill his own, 
 and will have no remedy against any of the other ante- 
 cedent parties upon the Bill, from or through whom he 
 derived his title.' But if the Bill (whether foreign or 
 inland) is kept in circulation, and not held by any one 
 Holder, through whose hands it passes, an unreasonable 
 time, it seems difficult to assign any particular time, in 
 which it ought to be presented for acceptance.^ In re- 
 spect to inland Bills, the rule may, in its application, 
 require some limitations, resulting from the common 
 course fif business, or the circulation of particular 
 classes of Bills (such as country banker's Bills), differ- 
 ent from those, which ordinarily apply to foreign Bills.^ 
 But in respect to foreign Bills, the conveniences, if not 
 the necessities, of trade, seem to require, that a very 
 liberal allowance of time, both for the transmission and 
 .the presentment of Bills, should be allowed to every 
 successive Holder.* 
 
 Mass. R. 131 ; Gowan v. Jackson, 20 Johns. R. 176 ; Aymar v. Beers, 7 
 Cowen, R. 503; Stroker v. Graham, 4 Mees. & Welsh. 721; Rice v. 
 Wesson, 11 Meto. R. 400; Lockwood v. Crawford, 1,8 Conn. R. 361. 
 
 1 Bayley on Bills, ch. 7, § 1, p. 227 to 230 ; Mailman v. D'Eguino, 2 H. 
 Black. 565, 569 ; Goupy v. Harden, 7 Taunt. R. 159 ; Chitty on Bills, ch. 
 7, p. 301 to 305 (8th edit. 1833) ; Mellish v. Rawdon, 9 Bing. R. 416 ; 
 Fry I'. Hill, 7 Taunt. R. 397; Gowan v. Jackson, 20 Johns. R. 176; 
 Robinson «, Ames, 20 Johns. R. 146 ; Wallace v. Agry,4 Mason, R. 336 ; 
 S. C. 5 Mason, R. 118. 
 
 2 Ibid. ; Fry v. Hill, 7 Taunt. R. 397 ; Mellish v. Rawdon, 9 Bing. R. 
 416 ; Wallace v. Agry, 4 Mason, R. 336 ; S. 0. 5 Mason, R. 118. 
 
 3 Chitty on Bills, ch. 7, p. 301 to 304 (8th edit. 1833) ; Fry v. Hill, 7 
 Taunt. R. 397; Shute v. Robins, 1 Mood. & Malk. 133 ; S. C. 3 Garr. & 
 Payne, 80. 
 
 * Muilman v. D'Eguino, 2 H. Black. 565, 569; Goupy v. Harden, 7 
 Taunt. R. 159 ; Mellish v. Rawdon, 9 Bing. R. 416 ; Gowan v, Jackson, 
 B. or EX. 24 
 
278 BILLS OF EXCHANGE. [CH. VIII. 
 
 § 232. Pothier, upon general principles, holds the 
 same doctrine in cases of Bills of Exchange payable at 
 or after sight, that there is no absolute rule, as to the 
 time, in which they should be presented for payment ; 
 and that it must be left to the judgment of the Court, 
 
 20 Johns. R. 176 ; Robinson v. Ames, 20 Johns. R. 146 ; Wallace v. Agry , 
 4 Mason, R. 336 ; S. C. 5 Mason, R. 118. — In the case of Mellish v. 
 Rawdon (9 Bing. R. 416), which was the case of a foreign Bill, Lord 
 Chief Justice Tindal, in delivering the opinion of the Court, said ; 
 " Whether there has been, in any particular case, reasonable diligence 
 used, or whether unreasonable delay has occurred, is a mixed question of 
 law and fact, to be decided by the jury, acting under the direction of the 
 Judge, upon the particular circumstances of each case. The judgment of 
 the Court of Common Pleas, in the case of Muilman v. D'Eguino, seems 
 to us to lead directly to this conclusion, and to no other. And, although 
 one expression, used by Mr. Justice Buller in giving his judgment, is much 
 relied on by the defendant, namely, that, ' if, instead of putting the Bill 
 into circulation, the Holder were' to lock it up for any length of time, I 
 should say he was guilty of laches,' such expression, when properly con- 
 sidered, only leaves the rule above laid down as uncertain and undefined in 
 its application as it was before. ' To lock the Bill up, for any length of 
 time,' does not, and cannot mean, that keeping it in his hands for any 
 time, however short, would make him guilty of laches. It, never can be 
 required of him, instantly, on the receipt of it, under all disadvantages, 
 either to put it into circulation, or to send it forward to the Drawee for 
 acceptance. To hold the purchaser bound by such an obligation would 
 greatly impede, if not altogether destroy, the market for buying and sell- 
 ing foreign Bills, to the great injury, no less than to the inconvenience, of 
 the Drawer himself. For, if he has no oppoitiinity to realize his Bill by 
 sale at home, he can only obtain the amount by sending it out to a cor- 
 respondent, at the place upon which it is drawn, incurring thereby delay, 
 expense, and risk ; and, if the buyer is not to be allowed a reasonable dis- 
 cretion, as to the time of 'parting with the Bill, how can the Drawer expect 
 to find a ready sale? The meaning, therefore, of the expression above 
 referred to, is, and, indeed, the very form of the expression denotes it, that 
 he must.not lock the Bill up for an indefinite time ; that there must be 
 some limit to its being kept from circulation ; and what limit can there be, 
 except that the time, during which it is locked up, must be reasonable? 
 But what is, or is not, reasonable for that purpose, a jury must, with the 
 assistance of the Judge, under all the circumstances of the particular case, 
 determine." 
 
CH. Vm.] PRESENTMENT OP. 279 
 
 •whether the presentment has been made within a rea- 
 sonable time ; for it would not be equitable, that the 
 Holder should, by too long a delay, throw the risk of 
 the solvency of the Drawee upon the Drawer.^ The 
 present Commercial Code of France has positively fixed 
 the different periods, within which. Bills, drawn at or 
 after sight, shall be presented for acceptance, varying 
 the time according to the different places, where the 
 Bills are drawn, and the different places, on which the 
 Bills are drawn.^ - 
 
 § 233. And here it becomes necessary to be under- 
 stood, that no presentment of a Bill for acceptance is 
 proper, and no acceptance can be required of a Drawee, 
 on any day, which is set apart by the laws, or observ- 
 ances, or usages, of the country, for religious or other 
 purposes, or which are not deemed days for the trans- 
 action of secular business. Thus, for example, no ac- 
 ceptance can be required, and no presentment for accept- 
 ance be regularly made, upon a Sunday, or Christmas 
 day, or upon any day appointed by the public authori- 
 ties for a solemn fast or thanksgiving, or upon any 
 other day, which is a holyday, or is set apart by the 
 religion of the Drawee for religious purposes, such as 
 Saturday, in the' case of Jews.' But this subject will 
 more properly present itself, when we come to the con- 
 
 1 Pothier de Change, n. 143 ; Pardessus, Droit Coram. Tom. 3 art. 358. 
 
 2 Code de Comm. Liv. 1, tit. 8, art. 160; Locr6, Esprit du Code de 
 Comm. Tom. 1, Liv. 1, tit. 8,§ 1, art. X60, p. 499 to 502; Pardessus, 
 Droit Comm. Tom. 2, art. 358, 359. 
 
 3 Bayley on Bills, ch. 7, § 1, p. 248 {5tii edit, 1830) ; Id. ch. 7, § 2, 
 p. 271,373; Chitty on Bills, ch. 9, p. 403, 410, 411 (8th edit. 1833.) 
 The fourth of July is, it seems, now deemed a holiday in New York. Ran- 
 som V. Mack, 2 Hill, N. Y. R. 587 ; Sheldon v. Benham, 4 Hill, N. Y. 
 R. 139, 132 ; Post, § 308, § 327. 
 
280 BILLS OF EXCHANGE. [CH. VIH. 
 
 sideration of the Time of Demand of Payment of Bills 
 of Exchange. 
 
 § 234. Delay in making the presentment for accept- 
 ance at a proper time may, under certain circumstan- 
 ces, be excused by illness, or by war being declared 
 between the country where the Bill is drawn or nego- 
 tiated, and the country where it is to be accepted, or 
 by the political state of either country rendering it im- 
 practicable, or by any other reasonable cause or acci- 
 dent, not attributable to the misconduct or negligence 
 of the Holder.' Indeed, the same rules generally apply, 
 in such cases, to excuse the delay as will excuse delay 
 in not presenting Bills for payment at the proper time, 
 or in not giving due notice of the dishonor to the other 
 parties;^ and therefore, the particular consideration 
 thereof may well be deferred, until those topics come 
 under our notice. It may, however, be here added, that 
 Pothier and Pardessus, both admit the competency of 
 the excuse for delay in presenting Bills for acceptance, 
 where it has been occasioned by inevitable accident, or 
 by other overwhelming cause of obstruction, upon the 
 general maxim, so fully recognized in the Roman Law, 
 and the modern Law of continental Europe ; Impossir 
 hilium nulla dbligatio est? 
 
 § 235. In the next place, as to the place where pre- 
 
 1 Chitty on Bills, ch. 7, p. 305 (8th edit. 1833) and note (J); Id. ch. 9, 
 p. 389, 423, 424 ; Id. ch. 10, p. 485, and note (/) ; Id. Part 2, ch. 2, p. 
 590 ; Hilton v. Shepherd, 6 East, R. 16; Patience b. Townley, 2 Smith, 
 R. 223 ; Post, § 308, 327. 
 
 2 Ibid. ; Tunno v. Lague, 2 Johns. Cas. 1 ; Schofield v. Bayard, 3 
 Wend. R. 488 ; Martin v. Ingersoll, 8 Pick. R. 1 ; Hopkirk v. Page, 2 
 Brook. E. 20. 
 
 3 Pothier de Change, n. 144 ; Pardessus, Droit Comm. Tom. 2, art. 
 426 ; Dig. Lib. 50, tit. 17, 1. 185. 
 
CH. vni.] PRESENTMENT OP. 281 
 
 sentment of Bills for acceptance is to be made. And 
 here, the general rule is, that presentment of the Bill 
 must be made at the place of the domicil of the Drawee, 
 without any regard to its being drawn payable generally, 
 or payable at a particular place specified ; because it is 
 presumed that the parties intend that the acceptance 
 shall be at the place of domicil, whatever may be the 
 place of payment.^ If the Bill is addressed to a party, 
 as living in one place, where he has never lived, or if 
 he has removed to another place, the Holder should 
 present it at the new or true domicil of the Drawee, if 
 he can, by diligent inquiries, ascertain where it is.® If 
 he cannot, upon such inquiries, ascertain his domicil, or 
 if the Drawee has absconded, and cannot be found, then 
 the Holder may treat the Bill as dishonored, and pro- 
 test it according to the facts.^ If the Drawee has left 
 the country, it will be sufficient to present the Bill at 
 his place of domicil in the country, which he has left, 
 unless he has a known agent in the same place ; for, in 
 that case, the Bill should be presented to the agent.^ 
 
 1 Chitty on Bills, ch. 7, p. 305, 307 (8th edit. 1833) ; Mitchell v. Bar- 
 ing, 10 Barn. & Cressw. 4. — It is laid down in Bayley on Bills, ch. 7, 
 § 1, p. 218 (5th edit. 1830), that " The presentment is to be made, where 
 the Bill or note is payable." This, I apprehend, is a mistake ; and that 
 the true rnle is laid down by Mr. Chitty, as stated in the text. 
 
 » Ibid. ; Bayley on Bills, ch. 7, § 1, p. 218, 219 (5th edit. 1830) ; Col- 
 lins V. Butler, 2 Str. R. 1087 ; Bateman v. Joseph, 12 East, R. 433 ; Bev- 
 eridge v. Burgis, 2 Camp. R. 262 ; Browning v. Kinnear, 1 Gow, R. 81 ; 
 Anderson v. Drake, 14 Johns. R. 114 ; Freeman v. Boynton, 7 Mass. R. 
 483. 
 
 3 Ibid. ; Anon. 1 Ld. Raym. 743. 
 
 4 Chitty on Bills, ch. 7, p. 307 (8th edit. 1833) ; Bayley on Bills, ch. 7, 
 § 2, p. 259 ; Id. § 1, p. 219 (5th edit. 1830) ; Cromwell v. Hynson, 2 Esp. 
 R. 511,512. See Phillips v. Astling, 2 Taunt. R. 206 ; Macgruder «. 
 Bank of Washington, 9 Wheat. R. 598; Whittier v. Graff'am, 3 Greenl. 
 R. 82. 
 
282 BILLS OF EXCHANGE. [CH. VIIL 
 
 If the Drawee is dead, the Holder should inquire for 
 his personal representative, to whom, if he can be found, 
 the Bill should he presented, otherwise it should be pro- 
 tested.^ 
 
 § 236. When it is said, that the Bill must be pre- 
 sented for acceptance at the place of the ddmicil of the 
 Drawee, we are to understand, by this expression, the 
 town, city, village, or other municipality, within which 
 he has his residence. But, in many cases, the Holder 
 will have an election as to the place of presentment. 
 Thus, for example, if the Drawee has his home, or 
 domestic establishment, in one town, and his place of 
 business is in another town, a presentment made at 
 either place will be good.^ So, if the Drawee has his 
 dwelling-house, or home, in one part of the same town,- 
 and his place of business in another part, a present- 
 ment may be made at either, at the option of the Hold- 
 er.^ But, in all cases, the presentment must be made 
 withih reasonable hours of the day. If made at the 
 place of business of the Drawee, it will not be good, 
 unless made within the usual hours of business, or at 
 farthest, while some person is there, who has authority 
 to receive and answer the presentment.* If made at 
 the dwelling-house of the Drawee, it may be at any 
 
 1 Chitty on Bills, ch. 7, p. 307 (8th edit. 1833) ; Molloy, B. 2, ch. 10, 
 § 34; Bayley on Bills, ch. 7, § 1, p. 219 (5th edit. 1830) ; Pothier de 
 Change, n. 146 ; Marias on Bills, p. 32 (edit. 1794.) 
 
 2 See Chitty on BiUs, ch. 7, p. 305 (8th edit. 1833) ; I have not found 
 • any case directly in point, although it docs not occur to me, that there is 
 
 any doubt of the principle stated in the text. 
 
 3 Chitty on Bills, ch. 7, p. 305 (8th edit. 1833.) 
 
 i Ibid. ; Bayiey on Bills, ch. 7, § 1, p. 224, S25 (5th edit. 1830) ; El- 
 ford D.'Teed, 1 M. & Selw-. 28 ; Garnett v. Woodcock, 6 M. & Selw. 44 ; 
 Morgan v. Davison, 1 Stark. R, 114; Willcins v. Jadis, 2 Barn. & Adolp. 
 188 ; Shed v. Brett, 1 Pick. R. 413. 
 
CH. VIII.] PRESENTMENT OF. 283 
 
 seasonable hour, -when the family are up, whether it be 
 in the morning, or in the evening.' A presentment at 
 an unseasonable time will be deemed a mere nullity, if 
 not duly answered. 
 
 § 237. The same doctrine is applicable to the case 
 of a Bill so drawn, as to be payable by a third person 
 in case of need {au lesoin) If the original Drawee 
 should refuse to accept the Bill, it should be presented 
 to the Drawee au hesdn, precisely in the same way, and 
 in the same place, and after the same inquiries, as if he 
 were the original Drawee.^ The proper proceedings to 
 be had, in case the Drawee cannot be found, or is dead, 
 or declines accepting it, will hereafter come under our 
 consideration. It is only necessary here, to add, that, 
 in every case of a presentment for acceptance, the 
 Drawee is entitled, if he requires it, to have twenty-four 
 hours to consider, whether he will accept the Bill, or 
 not ; and it is usual, in such cases, for the Holder to 
 leave the Bill with him during that period.^ 
 
 § 238. Let us, in the next place, proceed to the con- 
 sideration of the Acceptance of Bills of Exchange. We 
 have already seen, that it is the duty of the Drawee, 
 upon whom a Bill is regularly drawn, and who has funds 
 appropriated for the purpose in his hands, or who has 
 authorized the Draft, to accept and pay the Bill accord- 
 ing to its tenor.* An acceptance is an assent and agree- 
 
 1 Ibid. 
 
 2 See Ante, § 65, S19, 229 ; Pothier de Change, n. 137. 
 
 3 Chitty on Bills, ch. 7, p. 306, 307, 311 (8th edit. 1833) ; Com. Dig. 
 Merchant, F. 6 ; Marius on Bills, p. 15, 16; Bellasis v. Hester, 1 Ld. 
 Raym. 281 ; Ingram v. Foster, 2 Smith, R. 242 ; Code de Comm. art. 
 125 ; Pardessus, Droit Comm. Tom. 2, art. 361 ; 2 Bell, Comm. B. 3, ch. 
 2, p. 409 (5th edit.) 
 
 * Ante, ^ 113, 117 ; Chitty on Bills, ch. 7, p. 308, 309 (8th edit. 1833.) 
 Upon this subject, Mr. Chitty has remarked; " The Drawee of a Bill, 
 
284 BILLS OF EXCHANGE. [CH. VIU. 
 
 ment to comply with the request and order contained 
 in the Bill j or, in other words, it is an assent and agree- 
 ment to pay the Bill, according to the tenor of the 
 acceptance, when due.' It may be general, or it may 
 be conditional or qualified. It may be verbal, or it may 
 be. written. It may be express, or it may be implied. 
 It may be before the Bill is drawn, or after it is drawn.^ 
 
 unless he has, for adequate consideration, expressly or impliedly engaged 
 to accept it, is not, although he be indebted to the Drawer in the full 
 amount, or although adequate funds have been remitted to him for the ex- 
 press purpose, legally bound to accept, nor is he liable to any action for 
 the consequences of his refusal ; though, according to mercantile usage, 
 such refusal would be deemed very improper. In this respect, the situa- 
 tion of an ordinary debtor, or agent, differs from that of a banker, vyho is 
 liable to an action if he should refuse, having sufficient money in hand to 
 honor the check of his customer ; and, in case of refusal the Holder 
 (though the Drawer may withdraw the funds, or sue the Drawee for the 
 debt) has not, in this country, any remedy at law against the Drawee, or 
 the funds in his hands. However, in commercial transactions, frequently 
 from prior intercourse and dealings between the parties, an engagement to 
 accept may be inferred ; and it should seem, that, when funds have been 
 reniitted to a Drawee for the express purpose of providing for a Bill drawn 
 upon him, and he receives and retains the same, without objection or re- 
 turning the amount, an engagement to accept may be implied. If the 
 Drawee has expressly or impliedly promised the intended Drawer to ac- 
 cept a Bill, to be drawn on him for a valuable consideration, and afterwards 
 should refuse to perform such contract, then the Drawer (but not any other 
 party) may certainly sue him, and recover re-exchange and other damages 
 occasioned by the dishonor of the Bill ; and, where the Drawee has money 
 in hand, very slight evidence, as previous commercial transactions, will 
 support the presumption of a contract to accept ; and a promise to give 
 notice to a party, when he might draw a Bill, amounts to an undertaking 
 to accept the Bill, when drawn in pursuance thereof." Ibid. 
 
 1 Chitty, on Bills, ch. 7, p. 307, 308 (8th edit. 1833) ; Bayley on Bills, 
 ch. 6, § 1, p. 172 (5th edit. 1830) ; Patdessus, Droit Comm. Tom. 2, art. 
 362 to 361. 
 
 2 Where a person writes his name as Acceptor on a blank which is to 
 be afterwards filled up, his act imports an absolute acceptance ; and if the 
 acceptance is afterwards added to it by the Holder, payable at a particular 
 place (as, at the Bank of England), that is a change of the acceptance. 
 
CH. Vlll.] ACCEPTANCE OF. 285 
 
 § 239. An acceptance is general when it imports an 
 absolute acceptance, precisely in conformity to the 
 tenor of the Bill itself' It is conditional or qualified, 
 
 and does not bind the Acceptor as a general acceptance. Crotty v. Hodges, 
 4 Mann. & Gr. 561. 
 
 1 Bayley on Bills, ch. 1, § 8, p. 29, 30 ; Id. (5th edit. 1830) ; Id. ch. 
 6, § 1, p. 199, 200. — It was for a long time, in England, a vexed ques- 
 tion, Whether, when a Bill is drawn upon a person generally, if it is ac- 
 cepted payable at a particular house, or a particular place, it is a qualified 
 acceptance, so as to discharge the other parties to the Bill, unless due 
 protest and notice be given thereof to the other parties. In the case of 
 Rowe V. Young (2 Brod. & Bing. 165, 2 Bligh, E. 391,) it was finally 
 decided in the House of Lords, that it was a qualified acceptance. It was 
 also decided in the same case, that in every such case it was necessary 
 to make a demand of payment at such house or place before the Acceptor 
 would be in default. In America, some diversities of opinion have existed 
 upon this latter point. But, in the Supreme Court of the United States, 
 it has been held, that no such demand as to time and place is necessary to 
 be made or proved by the Holder ; although it may absolve the Acceptor 
 from all damages and interest, if the Bill upon presentment there would 
 have been paid; and, if the funds were there, and had since been lost by 
 the failure of the house without any default of the Acceptor, it would con- 
 stitute a good defence to the action. It seems at the same time to have 
 been admitted, that to charge the Drawer or Indorsers of the Bill, a de- 
 mand at the place at the maturity of the Bill is indispensable. Wallace v. 
 M'Connell, 13 Peters, R. 136. In the opinion of the Court, delivered 
 upon this occasion, the principal English and American authorities are 
 collected and commented on. In England, since the decision in Rowe v. 
 Young (2 Brod. & Bing. 165, 2 Bligh, R. 391,) the Statute of 1 and 2 
 Geo. 4, ch. 78, has provided, that such an acceptance shall not be deemed 
 a qualified acceptance, but a general acceptance, unless the words of the 
 acceptance make the Bill payable at that house or place only, or not else- 
 where. Still, however, the case itself is highly instinctive ; and the 
 opinionsof the Judges (vehich were opposed to each other on many points) 
 contain very masterly discussions of all the principles involved in the de- 
 cision. Mr. Chitty has given the following summary. " Much discussion, 
 in modern times, arose upon the effect of an acceptance payable at a parti- 
 cular place, and before the recent Act, the following points were settled 
 in the House of Lords in the case of Rowe v. Young ; it was decided, 1st. 
 That, if a Bill were accepted, payable at the house of P. and W., it was 
 a qualified acceptance, restricting the place of payment, and the Holder 
 was bound to present the Bill at the house for payment in order to charge 
 
286 BILLS OP EXCHANGE. [CH. VIII. 
 
 . when it contains any qualification, limitation, or con- 
 dition different from what is expressed on the face of 
 the Bill, or from what the law implies upon a general 
 acceptance.^ It is conditional, for example, when the 
 
 the Acceptor ; and that, if he brought an action against the Acceptor, he 
 must in his declaration aver, and on the trial prove, that he made su«h 
 presentment ; and, for virant of such averment, the declaration was held 
 bad on demurrer. 2dly. That an Acceptor might qualify his acceptance 
 was clearly established by cases including almost every species of qualifi- 
 cation ; and that, if the qualification as to place could not be introduced by 
 the Acceptor, it must be on account of some circumstance which belongs 
 to place, and does not belong to time or mode of payment or any other 
 species of qualification whatever. 3dly. That, when a Bill is drawn 
 generally, considering that it is an address to the person who is to accept 
 it generally, it is the duty of the Acceptor, who intends to give a special 
 acceptance, to accept in such terms, that the nature of his contract may 
 be seen in the terms he has used, that the acceptance may clearly appear 
 to be qualified or special, which he insists is not general. 4thly. That, 
 when the Acceptor uno flatu writes the words, ' Accepted payable at such 
 a house,' the word ' accepted ' is not to be taken to express the whole of 
 the Acceptor's contract, but the latter words are also to be taken as part 
 of it, and are to be construed distinctly as a direction or expansion of en- 
 gagement. 5thly. That, if an Acceptor promise to pay at his banker's in 
 London, and the Holder calls upon him in Northumberland, the payment 
 is not the same. He presumes that the demand is to be made at the 
 banker's in London, and the funds are deposited there. But, if the Ac- 
 ceptor is unexpectedly to meet the demands in a distant place, the cost of 
 the exchange, and remittance backwards and forwards, must be added. 
 6thly. That, if the law be, that, although a bill is drawn generally, it may 
 be accepted specially, it is the effect of the law to impose a duty upon the 
 Holder of giving notice to the Drawer arid previous Indorsers, if he intend 
 to keep alive their liability. 7thly. That it is not true that an Acceptor 
 must be antecedently the debtor, and that all the cases of qualified ac- 
 ceptances show the contrary ; and that a man may accept to pay out of 
 the produce of a cargo consigned to him, when that cargo shall arrive in 
 England ; and that, in the case of a consignee, his acceptance is almost 
 universally qualified. Sthly. That money paid at Torpoint and in Lon- 
 don are different things ; and, if an Acceptor of a Bill is liable to be called 
 upon at both places, his liability is rendered more inconvenient." Chitty 
 on Bills, ch. 7, p. 321, 322 (8th edit. 1833) ; Id. ch. 9, p. '391, 392. 
 
 1 Bayley on Bills, ch. 6, § 1, p. 175 (5th edit. 1830) ; Chitty on Bills, 
 ch. 7, p. 331 (8th edit. 1833.) 
 
CH. VIII.] ACCEPTANCE OF. 287 
 
 Drawee accepts a Bill " to pay, when goods conveyed 
 to him are sold ; " ^ or " when in cash for the cargo of 
 the ship A. ; " ^ or " to accept when a navy bill is 
 paid ; " ^ or " to pay, as remitted from thence, at 
 usance."* And the condition may be implied from 
 circumstances, as well as expressed.^ It is qualified 
 when the Drawee absolutely accepts the Bill, but 
 
 1 Ibid. ; Smith v. Abbott, 2 Str. R. 1152 ; Heinecc. de Camb. cap. 2, 
 § 19 ; 3 Kent, Comm. Lect. 44, p. 83, 84 (4th edit.) 
 
 s Ibid. ; Julian v. Scholbrooke, 2 Wils. R. 9. 
 
 3 Ibid. ; Pierson v. Dunlop, Cowp. R. 571. 
 
 * Banbury v. Lissett, 2 Strange, R. 1211. i 
 
 5 Sproat «. Matthews, 1 Term R. 182. — What words will amount to 
 a conditional acceptance, or not, is sometimes a matter of considerable 
 nicety. Mr. Justice Bayley has the following remarks, which may serve 
 to illustrate the subject. " If a man purpose making a conditional accept- 
 ance only, and commit that acceptance to writing, he should be careful to 
 express the conditions therein ; for it may at least be doubted, whether' 
 parol evidence of such conditions would be admissible ; if it were, the 
 onus of proving them would be upon the Acceptor, and the proof would 
 be of no avail, if the Holder or any person under whom he claims, took 
 the Bill without notice of such conditions, and gave a valuable considera- 
 tion for it. A conditional acceptance becomes absolute as soon as its con- 
 ditions are performed. Thus, an answer by the Drawee, that he could 
 not accept until a navy bill should be paid, was thought to operate as an 
 absolute acceptance upon the payment of the navy bill. So, an answer, 
 that the Bill would not be accepted till certain goods, against which it 
 was drawn, arrived, was held virtually an acceptance, when they did arrive 
 and were received. But if the Drawee says he cannot accept without 
 further directions from I. S.,and I. S. afterwards desire him to accept and 
 draw upon A. B. for the amount, the mere drawing upon A. B. will not 
 make this an acceptance, although the actual payment of the Bill upon 
 him may." Bayley on Bills, ch. 6, § I, p. 197 to 199 (5th edit. 1830.) 
 The cases referred to by Mr. Justice Bayley, are Pierson v. Dunlop, 
 Cowp. R. 571, Milne v. Prest, 4 Camp. R. 393, S. C. Holt, N. P. R. 
 181, and Smith v. Nissen, 1 Term R. 269 ; to which may be added Sproat 
 V. Matthews, 1 Term R. 182, and Wilkinson v. Lutwidge, 1 Strange, R. 
 648 ; Molloy de Jur. Marit. B. 2, ch. 10, § 20 ; Smith v. Nissen, 1 Term 
 R. 269. If a Bill is accepted by the Drawee thus, " A., administrator," 
 the addition of the word Administrator, does not make it conditional. 
 Tassey v. Church, 4 Watts & Serg. R. 346. 
 
288 BILLS OF EXCHANGE. [CH. VIII. 
 
 makes it payable at a different time or place, or for a 
 different firm, or in a different mode from that which is 
 in the tenor of the Bill.' 
 
 § 240. In all cases, the Holder is entitled to have an 
 absolute, unconditional, and unqualified acceptance of 
 the Bill, as drawn ; and he is not bound to take any 
 other.^ Mr. Justice Bayley has more fully stated the 
 obligation and duty of the Drawee, in the following 
 language. " Though any acceptance, varying from the 
 tenor, will bind the person making it, the Holder of a 
 Bill is entitled, from the undertaking of the Drawer 
 and Indorsers, to expect an absolute acceptance by the 
 Drawee, (or, if there be several not connected in part- 
 nership, by each,) for the payment of the full sum of 
 money mentioned therein according to its tenor ; spe- 
 cifying (if none be mentioned for the purpose) a place 
 for its payment, and expressing, if the Bill be payable 
 within a limited time after sight, the time of its pre- 
 sentment for acceptance ; and he may reject any other." ^ 
 Still, however, the Holder may, at his peril and risk, 
 take a conditional or qualified acceptance ; and, if he 
 does, the Acceptor will, (as has been just intimated,) if 
 
 1 Chitty on Bills, ch. 7, p. 331, 332 (8th edit. 1833) ; Bayley on Bills, 
 ch. 6, ^ 1, p. 175, 176, 199, 200 (5th edit. 1830) ; Wegersloffe v. Keene, 
 1 Str. R. 214 ; Walker v. Attwood, 11 Mod. R. 190 ; Paton v. Winter, 
 
 1 Taunt. R. 420 ; Callaghan v. Aylett, 3 Taunt. R. 397 ; Rowe v. Young, 
 
 2 Brod. & Bing. 165 ; Petit v. Benson, Comb. R. 452 ; MoUoy, B. 2, 
 ch. 10, § 20, 21 ; Beawes, Lex. Merc, by Chitty, Vol. 1, pi. 218, p. 594 
 (edit. 1813) ; Marius on Bills, p. 21. 
 
 s Bayley on Bills, ch. 6, § 1, p. 175, and note (g) (5th edit. 1830) ; Id. 
 p. 201, 202 ; Id. ch. 7, § 2, p. 252, 263 ; Marius on Bills, p. 21 ; Smith 
 V. Abbott, 2 Str. R. 1152 ; Julian v. Scholbrooke, 2 Wils. R. 9; Pierson 
 V. Dunlop, Cowp. R. 571 ; Boehm v. Garcias, 1 Camp. R. 425 ; Chitty on 
 Bills, ch.7, p. 315 (8th edit. 1833); Id. p. 330 to 331. 
 
 3 Bayley on Bills, ch. 6, § 1, p. 201, 202 (5th edit. 1830.) 
 
CH. VIII.] ACCEPTANCE OF, 289 
 
 the condition is complied with, or the qualification is 
 admitted, be bound thereby.' If the Holder means to 
 assent to a conditional offer of acceptance, he must do 
 so at the time of the offer ; for, if he then declines it, 
 it v?ill be a waiver of all right to hold the Drawee to 
 the offer.2 And, if the Holder should take an accept- 
 ance, varying, in any respect, from the tenor of the Bill, 
 whether conditional or qualified, or otherwise, in such a 
 case, he must give notice thereof to the antecedent par- 
 ties ; and, if he does not, they will not be bound by it, 
 but will be absolved from all responsibility upon the 
 Bill.' Indeed, it should seem, that notice would not, 
 of itself, be sufficient, without a protest of the Bill for 
 the non-acceptance, according to the tenor of the Billj* 
 nor unless, after notice, such parties adopted or acqui- 
 esced in the conditional or qualified acceptance ; for it 
 may materially change their whole relations to, and 
 responsibilities on, the Bill ; and each of them has a 
 right to say, JFon in Jicec fosdera veni? And here it may 
 
 1 Chitty on Bills, ch. 7, p. 332, 333 (8th edit. 1833) ; Bayley on Bills, 
 ch. 6, ^ 1, p. 175, 176, 195 to 198, 201 (5tli edit. 1830); Pierson v. Dun- 
 lop, Cowp. R. 571 ; Milne v. Prest, 4 Camp. R. 393; Smith v. Nissen, 
 1 Term R. 269; Read ». Willtinson, 2 Wash. Cir. R. 514; Campbell 
 1). Pettengill, 7 Greenl. R. 126 ; Parker v. Gordon, 7 East, R. 385 ; 
 Chilly on Bills, ch. 7, p. 315, 316 {8th edit. 1833.) 
 
 2 Bayley on Bills, ch. 6, § 1, p. 202 (5th edit. 1830) ; Id. ch. 7, § 2, p. 
 253, 254 ; Sproat «. Matthews, 1 Term R. 182 ; Bentinck v. Dorrien, 6 
 East, R. 199 ; Chitty on Bills, ch. 7, p. 330, 331 (8th edit. 1833.) 
 
 8 Bayley on Bills, ch. 7, § 2, p. 253, 254 (5th edit. 1830) ; Id. ch. 6, § 1, 
 p. 196,; Sproat v. Matthews, 1 Term R. 182 ; Chitty on Bills, ch. 8, p. 
 360 (8th edit. 1833) ; 3 Kent, Comm. Lect. 44, p. 85, 86 (4th edit.) 
 
 4 Marius on Bills, p.21 ; Beawes, Lex Merc, by Chitty, Vol. 1, pi. 221, 
 p. 594, 595 (edit. 1813) ; Chitty on Bills, ch. 7, p. 307 (8th edit. 1833) ; 
 MoUoy, B. 2, ch, 10, { 28 ; Baton v. Winter, 1 Taunt. R. 419, 422. 
 
 « Chitty on Bills, ch. 7, p. 307, 329, 330 (8th edit. 1833) ; Id. p. 360 ; 
 Bayley on Bills, ch. 7, ^ 2, p. 253, 254 (5th edit, 1830.) —I dp not know, 
 
 B. OF EX. 25 
 
290 BILLS OF EXCHANGE. [CH. Till. 
 
 be added, that, if any conditions are annexed to an ac- 
 ceptance, they should all appear upon the face of the 
 acceptance, if it is written ; for^ at all events, whatever 
 may be the case as to the then Holder, it is clear, that, 
 as to any subsequent Holder, hond fide, for value, with- 
 out notice, any verbal conditions would not be binding, 
 or qualify his rights." ^ 
 
 § 241. The French Law is in exact accordance with 
 ours, as to the right of the Holder to require an uncon- 
 ditional and absolute acceptance. It declares, that the 
 acceptance ought to be pure, simple, and unconditional, 
 and in conformity to the tenor of the Bill ; that the 
 Holder has & right to refuse any other acceptance ; and 
 that the Drawee has no right to insert any terms, which 
 in any respect vary his general obligations, as to the 
 time, place, or mode of payment.^ The Code of Com- 
 
 that any exact authority exists upon this last point ; but it seems to me 
 to be a necessary result of general principles ; and seems to be so held in 
 Chiity and Bay ley on Bills, uU supra. It is said, in Bayley on Bills, 
 ch. 7, § 2, p. S54 (5th edit. 1830), that " A neglect to give notice, where 
 there is a conditional acceptance, is done away by the completion of those 
 conditions, before the Bill becomes payable ; and a neglect, where there is 
 an acceptance as to part and a refusal as to the residue only, discharges 
 the person entitled to notice as to the residue only." No authority is 
 cited for this position ; and it seems to me open to much observation. But 
 see Pothier de Change, n. 48. See also Chiity on Bills, ch. 8, p. 361 
 (8th edit. 1833.) 
 
 1 Pardessus, Droit Coram. Tom. 2, art. 370; Bayley on Bills, ch. 6, § 1, 
 p. 197 (5th edit. 1830) ; Chitty on Bills, eh. 7, p. 332 (8th edit. 1833) ; 
 Id. p. 361 ; U. States v. Bank of Metropolis, 15 Peters, R. 377. 
 
 2 Pardessus, Droit Coram. Tom. 2 art. 370, 372, 428; Pothier de- 
 Change, n. 47 to 49 ; Ord. 1673, art. 2 ; Jousse, sur I'Ord. 1673, art. 2, 
 p. 71 to 73. — Heineccius, on the subject of conditional acceptances, says ; 
 " Probe etiam attendendum est, utrum acceptatio fiat pure, an vero addita 
 clausula vel conditione. Posteriore enim casu interponenda est protestatio^ 
 et tunc conditio ista pro nbn adjeota habelur. Immo si prsesentans damnum 
 aliquod inde sentiat, regressus illi patet adversus trassantem. — Nee per- 
 
CH. VIII.] ACCEPTANCE OF. 291 
 
 merce goes further, and declares, that the acceptance 
 cannot be conditional ; but it may be limited in regard 
 to the sum accepted.' In this case, the Holder is bound 
 to have the Bill protested for the deficiency.® And this 
 seems, in substance, to conform to the Ordinance of 
 1673, on the same point.^ But there does not seem 
 any just objection, either in our law, or in the French 
 Law, against the Drawee's introducing into his accept- 
 ance any reservation of his rights against the Drawer 
 provided it does not, in any manner, affect the rights 
 of the Holder, and still leaves the acceptance, as to 
 him, absolute and unconditional.'* Thus, for example, 
 if the Drawee, having no funds, should accept to pay 
 the Bill, reserving Jhis right of reimbursement against 
 the Drawer, it would not seem to be objectionable ; but 
 it would be otherwise, if he should reserve the like 
 right against the Holder, or should reserve the right to 
 apply the proceeds to the discharge of a debt due to 
 him from the Holder ; as, if his acceptance should be, 
 " Accepts pour payer a moi mime." ^ 
 
 § 242. In the next place, an acceptance may, unless 
 
 missum est trassato, loco totius summae, partis solutionem in se recipere ; 
 nee prsssentans in eo promisso adqulescere debet, sed statim interponere 
 protestationetn, quamvis summam oblatam otnnino accipere possit. Si ta- 
 men particularem solutionem promissam ratam habeat prsesentans, et in ea 
 prolnissione adquiescat, neo protestationem interponat ; valida omnino habe- 
 tur ilia partioularis acceptatio. Qua in re inter leges cambialea tantum non 
 omnes convenire." Heinecc. de Camb. cap. 4, ^ 27, 29 ; Id. cap. 2, 
 4 19. 
 
 1 Code de Comm. art. 124. 
 
 2 Ibid. 
 
 3 Jousse, sur I'Ord. 1673, tit. 5, art. 2, p. 71 to 73 ; Locr6, Esprit de 
 Comm. Tom. 1, Lib. 1, tit. 8, § 1, art. 124, p. 411, 412. 
 
 ■4 Pardessus, Droit Comm. Tom. 2, art. 370, 372 ; Pothier de Change, 
 n. 47 to 49. 
 5 Pardessus, Droit Comm. Tom. 2, art. 372 ; Chitty on Bills, ch. 7, p. 
 
292 BILLS OF EXCHANGE. [CH. VHI. 
 
 otherwise qualified or restrained, (as by the local law of 
 the place of acceptance,) be either verbal, or in writing.' 
 By the French Law, every acceptance is required to be 
 in writing.® By the English Law, a verbal acceptance 
 is good in cases of foreign Bills ; but an acceptance of 
 inland Bills is required to be in writing on the Bill 
 itself.^ It is not essential, however, although usual, in 
 either country, that the acceptance, when in writing, 
 should be on the Bill itself; but it may be on another 
 paper, or contained in a letter signed by the party.* 
 
 315 (8th edit. 1833.) — Fardessns seems to hint, that it might possibly be 
 true, if the Bill be payable at sight, and there be a present debt due to the 
 Drawee from the Holder, that the acceptance, with such a clause, might be 
 good ; because by the French Law (Code Civ. art. 1290, 1291 ; Pardessus, 
 Droit. Comm. Tom. 2, art, 230), the right of compensation or set-off exists, 
 in such a case, by mere operation of law. But he does not affirm it ; and 
 it seems to me doubtflil, upon principle, whether the Holder is bound to 
 receive such an acceptance, as the object is, to have the very sum paid to 
 him, and appropriated according to his own choice ; whereas, the option, 
 by such an acceptance, is given to the Drawee. Fothier, however, posi- 
 tively affirms, that such an acceptance is good', and binds the Holder. 
 Pothier de Change, n. 47. 
 
 1 Bayley on Bills, ch. 6, § 1, p. 174 (5th edit. 1830) ; Chitty on Bills, 
 ch. 7, p. 316, 317 (8th edit. 1833) ; Lumley t>. Palmer, 2 Str. R. 1000 ; 
 Julian V. Scholbroke, 2 Wils. R. 9; Powell v. Monnier, 1 Atlt. 612; 
 Filans V. Van Mierop, 3 Burr. R. 1674 ; 3 Kent, Comm. Lect. 44, p. 83, 
 84 (4th edit.) ; Grant v. Hunt, 1 Manning, Granger & Scott, 44. 
 
 2 Code de Comm. art. 122 ; Pardessus, Droit Comm. Tom. 2, art. 365 ; 
 Ord. 1673, tit. 5, art. 2 ; Pothier de Change, n. 43 ; Locr6, Esprit du 
 Code de Comm. Tom. 1, Liv. 1, tit. 8, § 1, art. 122, p. 406. 
 
 3 Bayley on Bills, ch. 6, § 1, p. 174, and note (7) (5th edit. 1830) ; 
 Chitty on Bills, ch. 7, p. 316, 317 (8th edit. 1833) ; and cases there cited ; 
 Caneppa v. Larcio, 2 Knapp, R. 273 ; Mahoney v. Astlin, 2 Barn. & 
 Adolph. K. 478 ; Hoyt v. Lynch, 2 Sandford, Superior Ct. N. Y. R. 328. 
 The Statute of 1 and 2 Geo. 4, ch. 78, § 2, requires every acceptance 
 of an inland Bill to be in writing. 
 
 4 Bayley on Bills, ch. 7, § 1, p. 174, 187, 188 (5th edit. 1830) ; Chitty 
 on Bills, ch. 7, p. 316 (8th edit. 1833) ; Clark v. Cock, 4 East, R. 71 ; Ex 
 parte Dyer, 6 Ves. 9 ; Crutchly v. Mann, 5 Taunt. 529 ; Powell v. Mon- 
 
CH. Vm.J ACCEPTANCE OF, 293 
 
 But it seems, that the Holder has a right in all cases, 
 to insist upon an acceptance in writing on the Bill 
 itself, in order to avoid mistakes, and to prevent the 
 difficulties which may arise from mere parol proof 
 thereof And, if the Bill is payable at or after sight, 
 the acceptance in writing on the Bill ought to con- 
 tain the date thereof; ^ although, if- it does not, the 
 acceptance will be good, and the time may be proved 
 aliunde? 
 
 § 243. In the next place, an acceptance, whether it 
 be in writing or verbal, may be by express words, or 
 by reasonable implication. Any written words, clearly 
 denoting a present intention to accept or honor a Bill, 
 will be deemed an acceptance ; although, certainly, the 
 appropriate mode is, to express in positive terms, as for 
 example, "January 1, 1842. Accepted to pay ac- 
 cording to tenor of the Bill," or, " I accept to pay this 
 Bill," or, simply, " Accepted." * But any other words 
 will suffice if expressive of the same intent, or admitting 
 of no other reasonable and just interpretation. Thus, 
 for example, if the Drawee writes on the Bill, with or 
 without his signature, " I will pay this Bill," " I honor 
 this Bill," or simply, "Honored," or "Presented," it 
 
 nier, 1 Atk. 611; Wynne v. Raikes, 5 East, R. 514; Pardessus, Droit 
 Comm. Tom. 2, art. 367 ; Grant v. Hunt, 1 Manning, Granger & Scott, 
 44. 
 
 » Chitty on Bills, ch. 7, p. 315 (8th edit. 1833.) 
 
 2 See Bayley on Bills, ch. 6, \ 1, p. 181, 182 (5th edit. 1830) ; Par- 
 dessus, Droit Comm. Tom. 2, art. 368 ; Code de Comm. art. 123 ; Chitty 
 on Bills, ch. 7, p. 320, 321 (Slh edit. 1833.) 
 
 3 Ibid. 
 
 * Chitty on Bills, oh. 7, p. 320, 321, 323,324 (8th edit. 1833) ; Bayley 
 on Bills, ch. 6, ^ 1, p. 183, 183 (5th edit. 1830) ; Kyd on Bills, ch. 5, p. 
 68 to 72 (3d edit.) 
 25 • 
 
294 BILLS OP EXCHANGE. [CH. VIII. 
 
 will amount to an acceptance.* Nay, words far more 
 indirect, and even acts, will, in many cases, be deemed 
 an acceptance. Thus, if the Drawee should write on a 
 Bill " seen," or the date of the month and year, or his 
 own signature in blank, or a direction to a third person 
 to pay the Bill, such circumstances would, if not other- 
 wise explained, be deemed an acceptance of the Bill." 
 So, if he should write his name across the Bill on its 
 face.' 
 
 § 244. In like manner, words written on a separate 
 paper or letter will amount to an acceptance, especially 
 where they are written after notice that the Bill has 
 been drawn. Thus, a writing, containing a promise to 
 accept an existing Bill, or that " it shaiU meet with due 
 honor," or, that the Drawee " will accept or certainly 
 pay it," will amount to an acceptance.* And it will 
 make no difference, whether the Bill had then arrived at 
 maturity, or not ; or whether the Holder knew of the 
 letter, or not.' But, if the import of the language be 
 
 1 Ibid. 
 
 B Ibid. ; Anon. Combeib. R. 401 ; Powell v. Monnier, I Atk. 611 ; 
 Moore v. Whitby, 1 Buller, N. Prius, 270 ; Chitty on Bills, ch. 7, p. 313 
 (8th edit. 1833) ; CoUis v. Emmett, 1 H. Black. 313; Billings v. Devaux, 
 3 Mann. & Giang. 565. — Where a person writes, his name on a blank 
 piece of paper, for the purpose of binding himself as Acceptor upon a. 
 Bill to be drawn thereon, he will, after the Bill is drawn, be deemed, 
 to all intents and purposes, the Acceptor, in the same way, as if the 
 Bill had been filled up, when he accepted it. CoUis v. Emmett, 1 H. 
 Black. 313. 
 
 3 Spear v. Pratt, 2 Hill, N. Y. R. 582. 
 
 4 Bayley on Bills, ch. 6, ^ 1, p. 187, 188 (5th edit. 1830) ; Chitty on 
 Bills, ch. 7, p. 317, 318 (8th edit. 1833) ; Claik v. Cock, 4 East, R. 57 ; 
 Fairlie v. Herring, 3 Bing. R. 625 ; Pierson v. Dunlop, Cowp. R. 571 ; 
 Wynne v. Kaikes, 5 East, R. 514 ; 3 Kent, Coram. Lect.44, p. 84 (4th 
 edit.) ; Billings v, Devaux, 3 Mann. & Grang. 565 ; Grant v. Hunt, 1 
 Manning, Granger & Scott, 44. 
 
 5 Ibid. 
 
CH. VIII.] ACCEPTANCE OF. 295 
 
 equivocal, as, if it merely state, " Your Bill shall have 
 attention," there it will not be held to be an acceptance.^ 
 
 § 245. The French Law seems coincident with ours, 
 upon the subject of such implied acceptances. Thus, 
 it is held, that the words written on the Bill, "AccepU" 
 " Je ferai honneur," " Jb paierai" " J'acquitterai" will 
 amount to an acceptance of the Bill. And Pardessus 
 is of opinion, that even the word " Vu" written on the 
 Bill, ought to be considered as equivalent to the word 
 " AccepU" when no other sense can be fairly attributed 
 to the word, according to the usage of the place, where 
 it is written.^ Pothier speaks with far more hesitation ; 
 and inclines to hold, that the word is too equivocal, at 
 least, unless fortified by other attendant circumstances.' 
 
 § 246. In respect to verbal acceptances, our law is, 
 perhaps, still more comprehensive and liberal, in crea- 
 ting implied acceptances. They may be inferred from 
 circumstances. Thus, if the Drawee say to the Holder, 
 or his agent, " Leave the Bill, and I will accept it," it 
 will amount to an acceptance.* So, saying, " Send the 
 Bill to my counting-house, and I will give directions 
 for its being accepted," if the Bill be sent.® So, saying, 
 " Leave your Bill, and call for it to-morrow, and I will 
 accept it," or, " it shall be accepted," will amount to an 
 
 1 Chitty on Bills, ch. 7, p. 319 (8th edit. 1833) ; Bayley on Bills, 
 ch. 6, § 1, p. 188 (5th edit. 1830) ; Rees v. Warwick, 3 Barn. & Aid. 
 113. 
 
 2 Pardessus, Droit Comm. Tom. 2, art. 366 ; Chitty on Bills, ch. 7, p. 
 320 (8th edit. 1833) ; Pothier de Change, n. 43. See Jousse, sur L'Ord. 
 1673, art. 2, p. 71 to 73 ; Locr^, Esprit du Code de Comm. Tom. 1, Liv. 
 
 1, tit. 8, ^ 1, art. 132, p. 407. 
 
 * Pothier de Change, n. 45. 
 
 * Bayley on Bills, ch. 6, § 1, p. 189, 190 (5th edit. 1830) ; Molloy, B. 
 
 2, ch. 10, § 20 ; Marius on Bills, p. 16, 17 ; Chitty on Bills, ch. 7, p. 326, 
 327 (8th edit. 1833) ; 3 Kent, Comm. Lect. 44, p. 84, 85 (4th edit.) 
 
 5 Bayley on Bills, ch. 6, § 1, p. 190 (5th edit. 1830) ; Chitty on Bills, 
 oh. 7, p. 327 to 329 (8th edit. 1833) ; Anderson t;. Hicks, 3 Camp. R. 179. 
 
296 BILLS OP EXCHANGE. [CH. VIII. 
 
 acceptance.^ So, keeping a Bill, which is sent to the 
 Drawee for acceptance, a considerable length of time, 
 without returning any answer, may, under circum- 
 stances, be treated as an acceptance ; especially, if, 
 when sent, the Drawee is informed, that his so 
 keeping it, without returning any answer, will be 
 deemed an acceptance.® But, as such conduct is 
 equivocal, unless circumstances of a stringent cha- 
 racter, such as those above stated, occur, the mere 
 keeping of the Bill will not be held to amount to an 
 acceptance.^ Upon the Continent of Europe, generally, 
 the retention of a Bill for a long time, unexplained, is 
 ordinarily deemed an acceptance.* But in France, 
 
 • MoUoy, B. 2, ch. 10, § 20. — Qiuere, if goods are consigned to a fac- 
 tor upon the express condition that he will accept certain Bills drawn on 
 him on account thereof, whether the receipt of the goods without any 
 qualification is not an acceptance ? See Allen ». Williams, 13 Pick. R. 
 297. An acceptance of oiie Bill, drawn by a parly, is no proof of ac- 
 ceptance of another subsequent, where the same party overdraws. Par- 
 sons V. Armor, 3 Peters, R. 413. 
 
 2 Bayley on Bills, ch. 6, § I, p. 191 to 194 (5th edit. 1830) ; Harvey v. 
 Martin, cited ibid., and 1 Camp. R. 425, note; Chitty on Bills, ch. 7, p. 
 324 (8ih edit. 1833) ; Id. 325; Jeune v. Ward, 1 Barn. & Aid. 653, 
 656. 
 
 3 Ibid. ; Mason «. Barff, 2 Barn. & Aid. 26 ; Chitty on Bills, ch. 7, p. 
 326 to 329 (8th edit. 1833.) 
 
 * Scaccia (de Comm. et^Camb. fol. 383, § 336) says; " Sobdeclara 
 banc declarationem in secundo ejus membro de tertio mode acceptandi 
 litteras cambii per earum receptionem cum taciturnitate ; ut possit pro- 
 cedere in liiteris propriis cambii ; cum recipiens litleras cum taciturnitate 
 'prsesumalnr confessus, seu approbasse omnia eontenla in eis." And for 
 this he cites many authorities. Jousse (Comm. sur I'Ord. 1673, art. 2, p. 
 73) held the same doctrine. Heineccius says; " Quaeritur, an acceptatio 
 eliam tacite fieri possit, quin et facta esse praesumatur ? Hoe merito ad- 
 firmandum eo casu, si quis litteras cambiales sibi ad acceptandum oblatas 
 aliquamdiu penes se retineat, nee quidquam adversus illas moneat. Qui 
 enim hoc modo tacet, is consentire in acceplatiori^ m videtur. Vid. Mar- 
 quard. de Jure Meroator. lib, 3, cap. 9, num. 60, et Stryck. in Diss, de 
 Cambial. Litterar. Acceptat. cap, 3, ^ 21." Heinecc. de Camb. cap. 4, 
 §28. 
 
CH. VIII.] ACCEPTANCE OF. 297 
 
 where a written acceptance is required, it follows, of 
 course, that there can be no tacit acceptance resulting 
 from the Drawee's receiving and detaining the Bill.* 
 
 § 247. On the other hand no language used to a third 
 person, who is not a party to a Bill, or his agent for 
 the purpose, although it might otherwise import a verbal 
 acceptance thereof, will be obligatory as such ; for, to 
 such verbal acceptance, there must be an assent on the 
 part of the Holder ; since, perhaps, in no case is he 
 bound to take a verbal acceptance, but may always 
 insist upon a written acceptance. Thus, if the Drawee 
 should say to such third person, "I must accept and 
 pay the Bill," or, " I shall have to accept or pay it," 
 that would not be an acceptance.^ 
 
 § 248. Whether the destruction of a Bill by the 
 Drawee, without any other circumstances explaining 
 the fact, will amount to an acceptance of the Bill, has 
 been a matter of a good deal of forensic discussion, and 
 upon which learned Judges have differed in opinion.^ 
 In odium spoUcdoris, it might not be inequitable to hold 
 this doctrine ; but, unless other circumstances lead to 
 the supposition that the Bill had been in fact accepted, 
 and was afterwards destroyed, there is some difficulty 
 in maintaining the doctrine upon general principles.* 
 The appropriate remedy seems to be of another cha- 
 
 1 Pothier de Change, n. 46 ; Code de Comm. art. 125. 
 
 ^ Martin v. Bacon, 2 South Car. R. 133. See Anderson v. Heath, 4 
 M. & Selw. 303 ; Peck v. Cochran, 7 Pick. R. 34 ; Mendizabal v. Ma- 
 chado, 6 Carr. & Payne, 319, 3 Moore & Scott, 841. 
 
 3 Jeune v. Ward, 1 Barn. & Aid. 653 ; Bayley on Bills, ch. 6, ^ 1, p. 
 192, 193 (5th edit. 1830.) 
 
 * Ibid. ; Chilty on Bills, ch. 7, p. 325 (8th edit. 1833.) But see Jousse, 
 Comm. sur L'Ord. 1673,. art. 2, p. 73. 
 
298 BILLS OF EXCHANGE. [CH. VIII, 
 
 racter, as, for example, trover, for the destruction of the 
 BiU.i 
 
 § 249. In the next place, as to the acceptance of a 
 non-existing Bill, or a Bill before it is actually drawn. 
 As between the Drawer and the Drawee, a promise, or 
 agreement, to accept a Bill, which should be afterwards 
 drawn, has never been deemed an acceptance.^ But, as 
 between the Drawee and a third person, who has taken 
 the Bill upon the faith of the promise to accept it, the 
 doctrine was, for a long time, maintained in England, 
 that it amounted to an acceptance of the Bill. It ad- 
 mits of no small question, whether this rule now pre- 
 vails in England in respect to such a Holder and the 
 Drawee.^ But the rule, as formerly held, always in- 
 cluded the qualification, that the paper containing the 
 promise, should describe the Bill to be drawn, in terms 
 not to be mistaken, so as to identify and distinguish it 
 from aU others ; that the Bill should be drawn within a 
 
 1 Ibid. ; Chitty on Bills, ch. 7, p. 325 (8th edit. 1833.) Bat see Jousse, 
 Coram, sur L'Ord. 1673, art. 2, p. 73. 
 
 2 Chitty on Bills, ch. 7, p. 311 to 313 (8th edit. 1833) ; Bayley on Bills, 
 ch. 6, ^ 1, p. 172, 174, and note; Id. p. 186; Pillans v. Van Mierop, 3 
 Burr. R. 1663 ; Pierson v. Dunlop, Cowp. R. 573 ; Mason v. Hunt, Doug. 
 K. 296. 
 
 3 Bayley on Bills, ch. 6, § 1, p. 186, 187 (5th edit. 1830) ; Chitty on 
 Bills, ch. 7, p. 311, 312 (8th edit. 1833) ; Johnson v. CoUings, 1 East, 
 R. 98; Wildes v. Savage, 1 Story, Rep. 22; EX parte Bolton, 3 Mont. 
 & Ayrt. 367. In the Bank of Ireland v. Archer, Easter Term Exchequer, 
 1843, it was decided, that a promise to accept a non-existing Bill did not 
 amount to an acceptance. See the Jurist (English) May 6, 1843, p. 379 ; 
 S. C. 11 Mees. & Welsh. 383. But see Ulster County Bank v. McFarlan, 
 5 Hill, N. Y. R. 432; Russell v. Wiggin, 2 Story, R. 213. In the 
 French Law, a promise, even in writing, to accept a non-existing Bill, 
 never has the effect of an acceptance. The most which can arise is, that 
 if the Bill, when drawn, is not accepted, the Drawer may, under certain 
 circumstances, have an action for interest and damages. Pardessus, Droit 
 Coram. Tom. 2, art. 362, 363, 367. . 
 
CH. viil] acceptance of. 299 
 
 reasonable time after the paper was written ; and it 
 should be received, by the person taking it, upon the 
 faith of the promised acceptance ; and, if either of these 
 circumstances should fail, the promise would not amount 
 to an acceptance. Under these qualifications, the rule 
 seems to be firmly established in America upon the foot- 
 ing of the old authorities.' But the rule is applicable only 
 to the cases of Bills payable on demand, or at a fixed 
 time after date, and not to Bills payable at or after sight ; 
 for it is obvious, that, to constitute an acceptance in the 
 latter cases, a presentment is indispensable since the 
 time, that the Bill is to run, cannot otherwise be ascer- 
 tained.^ 
 
 § 250. An acceptance may not only be made by the 
 Acceptor's writing his name on a blank paper, so as to 
 be filled up afterwards, which is binding as an accept- 
 ance,3 and also by promise to accept a non-existing Bill 
 (as has been already suggested), under other circum- 
 stances ; * but it may be made after a Bill, drawn pay- 
 able after a certain date, has become payable, and the 
 time for payment has passed. In such a case the Bill 
 
 1 Coolidge V. Payson, 2 Wheat. R. 66 ; S. C. 2 Gallis. R. 283 ; Good- 
 rich V. Gordon, 15 Johns. R. 6 ; Parker v. Greele, 2 Wend. R. 345 ; S. C. 
 5 Wend. R. 414 ; McEvers v. Mason, 10 Johns. R. 207 ; 3 Kent, Comm. 
 Leot. 44, p. 84, 85 (4th edit.) ; Wilson v. Clements, 3 Mass. R. 1 ; Storer 
 V. Logan, 9 Mass. R. 55 ; Boyce v. Edwards, 4 Peters, R. Ill ; Schim- 
 melpenniek v. Bayard, 1 Peters, R. 264; Wildes v. Savage, 1 Story, R. 
 22 ; Williams v. Winans, 2 Greenl. R. 339 ; Carnegie v. Morrison, 2 Mete. 
 R. 381, 406; Ogden v. Gillingham, 1 Baldwin, R. 45; Worcester Bank 
 V. Wells, 8 Mete. R. 107 ; Read v. Marsh, 5 B. Monroe, R. 10 ; Cassel 
 V. Dows, Blatchford, R. 335. 
 
 2 Wildes V. Savage, 1 Story, R. 22. See Code de Comm. art. 123. 
 
 3 Collis V. Emmett, 1 H. Black. 313. See 3 Kent, Comm. Lect. 44, p. 
 85,^86 (4th edit.) 
 
 4 Ante, \ 243. 
 
300 BILLS OP EXCHANGE. [CH. VIU. 
 
 will be payable on demand.^ Even if a person at first 
 refuse to accept, he may afterwards accept the Bill, 
 and bind himself as Acceptor.*' But, in such a case, 
 if the Holder would bind the other parties, the Bill 
 must have been duly protested for non-acceptance.' A 
 Bill, drawn in the lifetime of the Drawer, may be ac- 
 cepted by the Drawee after the death of the Drawer, 
 although he has knowledge of the fact ; for it is not a 
 revocation of the Bill in the possession of a bond fide 
 Holder for value.* 
 
 § 251. In the next place, as to the form or mode of 
 acceptances in particular cases. In general we have 
 seen, that the acceptance made by any written words, 
 showing a clear intent to accept, will be sufficient.^ 
 If the Bill be payable at or after sight, the date of the 
 acceptance should also be regularly written on the same 
 
 1 Chitty on Bills, ch. 7, p. 313 (8th edit. 1833) ; Bayley on Bills, oh. 6, 
 ^ 1, p. 181 (5th edit. 1830) ; Jackson «. Pigot, 1 Ld. Raym. 364, Salk. 
 137, 12 Mod. R. 212, Carth. R. 450 ; Mitford v. Walcot, 1 Ld. Raym. 574, 
 Salk. 129, 12 Mod. R. 410, Com. R. 76. 
 
 2 Wynne v. Raikes, 5 East, R. 521. 
 
 3 Chitty on Bills, ch. 7, p. 313, 314 (8th edit. 1833.) 
 
 4 Ibid. ch. 7, p. 309, 310 ; Cutts v. Perkins, 12 Mass. R. 206. 
 
 s Ante, \ 243, 344. Heineccius, as to the form of acceptances, uses 
 the following language : " Exactor vel prsesentans litteras cambiales ad se 
 missas mature preesentat trassato, rogatque, ut istas velit honorare. Id si 
 hie facere detrectet, protestatione opus est, de qua paullo post dicemus. 
 Sin trassatus promittit, se solutuium, acceptatio formula hac litteris sub- 
 jecta fieri solet : Ich acceptire und verspreche contente Bezahlung. Berlin 
 
 den Benjamin Semler. Aliquando institor pro domino acceptat 
 
 tamquam mandatarius, idque fieri solet his similibusque verbis : Im Namen 
 seines Patrons N. N. und in dessen Vollmacht verspricht contente Bezah- 
 lung N. N. Berlin den Ceterum plerisque hodie locis prohibits 
 
 sunt acceptationes, quae fiunt per signa, e. gr. accept. ; vel formulis, Ich 
 habe es gesehen ; ich acceptire, um in der Zeit zu antworten. Vid. Sa- 
 vary, in Negotiat. perfect, part 1, cap. 21, et Stryckius in Diss, de Cambial. 
 Litterar. Acceptat. cap. 3, § 20 sequ." Heinecc. de Camb. cap. 4, $ 26; 
 Savary, Le Parfait N6gooiant, Tom. 1, Pt. 3, ch. 10, p. 839. 
 
 j 
 
CH. VIII.] ACCEPTANCE OF. 301 
 
 paper.* Where the Bill is drawn on a partnership, it 
 should be accepted in the partnership name.^ Where 
 it is drawn on two or more persons, who are not part- 
 ners, all of them should sign the acceptance ; for an 
 acceptance by one will not bind the others ; and the 
 Holder is entitled to the acceptance of all.' Where 
 the Bill is accepted by an agent, he should accept it in 
 the name of his- principal, and not in his own name.* 
 Where a Bill is drawn in sets, the Drawee should take 
 care not to accept more than one part of the set ; for^ 
 if he does, he may incur responsibility to different 
 Holders upon each of the accepted parts.^ 
 
 § 252. The effect of an acceptance, when once made, 
 has been already stated. It is an engagement to pay 
 the Bill according to the tenor of the acceptance.® 
 
 ' Ante, § 243, 244. 
 
 2 Ante, § 78 ; Chitty on Bills, ch. 7, p. 310, 321 (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 2, !j 6, p. 53, 54 (5th edit. 1830) ; Mason v. Rumsey, 1 
 Camp. R. 384. 
 
 3 Chitty on Bills, ch. 7, p. 310, 321 (8th edit. 1833) ; Id. ch. 2, p. 67 ; 
 Bayley on Bills, ch. 2, § 6, p. 52 (5th edit. 1830) ; MoUoy, B. 2, ch. 10, 
 ^ 19; Marius on Bills, p. 16; Buller, Nisi Prius, 279; Pardessus, Droit 
 Comm. Tom. 2, art. 367. [But see Jenkins v. Morris, 16 Mees. & Welsh. 
 877. In this case a bill was drawn on " E. M. and others, trustees of 
 Clarence Temperance Hall, Liverpool," and accepted thus ; — " Accepted, 
 E. M." It appearinar that he had authority from his associates to accept 
 the bill on their behalf, it was held, that E. M. intended to accept, not 
 individually, but for himself and four others.] 
 
 * Chitty on Bills, ch. 7, p. 321 (8th edit. 1833) ; Id. ch. 2, p. 37 to 39.. 
 
 5 Chitty on Bills, ch. 5, p. 176 (8th edit. 1833) ; Id. ch. 7, p. 314.— 
 Heineccius, on this subject, says; "Qui plures ejus generis tesseras colly- 
 histicas habet, primam statim potest prsesentare ad acceptandum, dum reli- 
 quse per alia loca girentur. Acceptantis enim xque, ac tiassantis, non 
 interest, si vel maxima reliquse per cessionem in alienas manus perveniant, 
 quia non nisi ex una solvit, ex reliquis vero turn demum solntio exigi 
 potest, si ilia ex priotibus nondum sit praestita." Heinecc. de Camb. cap. 
 2, § 18. 
 
 6 Ante, § 113 ; Pardessus, Droit Comm. Tom. 2, art. 376, 377 ; 3 Kent, 
 Comm. Lect. 44, p. 85 (4th edit.) ; Pothier de Change, n. 44. 
 
 B. OF £X. 26 
 
302 BILLS OF EXCHANGE. [CH. VIII. 
 
 When an acceptance is once made, if the Bill has been 
 delivered to the Holder, the trapsaction is complete, 
 and the acceptance is irrevocable. Before such deli- 
 very, however, it is, in general, revocable ; and, although 
 written, it may be cancelled by the Acceptor.' We 
 say, in general; because it may be otherwise where 
 the Holder has in the intermediate time, with the 
 knowledge of the Acceptor, passed it to another person 
 for value, who should take it. upon the faith of the 
 acceptance with the consent of the Acceptor. But, 
 although an acceptance, when thus made and deli- 
 vered, is irrevocable, it may be waived by the parties 
 by an agreement or consent, expressed, or implied ; for 
 it is entirely competent for the Holder and the Ac- 
 ceptor to make what arrangements they please after 
 the acceptance of the Bill.^ But, in all cases, the other 
 parties to the Bill will be discharged from their respon- 
 sibility unless the waiver has been consented to by 
 
 1 Cpx V. Troy, 5 Barn. & Aid. 474 ; 3 Kent, Comm. Lect. 44, p. 85 
 (4th edit.) ; Pardessus, Droit Comm. Tom. 2, art. 377 ; Pothierde Change, 
 n. 44 ; 1 Emerig. des Assur. ch. 2, ^ 4, p. 45. — Before the decision of 
 this case, the earlier authorities heid, that an acceptance once written, if 
 not by mistalie, was irrevocable, at least without the assent of the Holder. 
 Bayley on Bills, ch. 6, ^ I, p. 204 to 207 (5lh edit. rt30) ; Thornton v. 
 Dick, 4 Esp. R. 270 ; Trimmer v. Oddie, cited 6 East, R. 200 ; Bentinck 
 V. Dorrien, 6 East, R. 199. Heinneccius, on tiie subject of the irrevoca- 
 bility of acceptances, says : " Vidimus hactenus, protestationem hanc fieri 
 tantum debere denegata acceptalione : ea vero facta acceptans abscissa 
 tenetiir ad prsestandam solutionem. Quod adeo yerum est, ut acceptans 
 recedere, voluntatemque mutare nequeat, si vel maxime trassans inierim 
 foro cesserit, Strylt. Diss, de Cambial. Litterar. Aoceptat. cap. 4, § 1, vel 
 si in acceptatione erraverit." Heinecc. de Camb. cap. 4, § 38. See id. 
 § 39 ; S'avary, Le Parfait N6gociant, Tom. 1, Pt. 1, ch. 10, p. 840, 
 max. 3. 
 
 2 Bayley on Bills, oh. 7, § 1, p 208 to 212 (5th edit. 1830) ; Black v. 
 Peele, 1 Doug. R. 236, 237, 248, 249 ; Mason v. Hunt, 1 Doug. R. 297 ; 
 Farquhar v. Southey, 1 Mood. & Malk. 14. 
 
CH. VIII.] ACCEPTANCE OF. 303 
 
 them. Cases of express waiver may readily be sug- 
 gested ; as, where the Holder agrees to consider an 
 acceptance at an end;' or, he informs the Acceptor, 
 that he has settled the Bill with the Drawer, and he 
 need give himself no further trouble.^ The receipt, by 
 the Holder, of the very consideration, which, between 
 hiniself and the Acceptot, constituted the ground of the 
 acceptance. Will also operate as an implied waiver of 
 the acceptance.^ So, an agreement to enlarge the time 
 for payment of the Bill is an implied waiver of the 
 right to require payment, except at the enlarged time.* 
 But, generally, nothing but an actual payment or dis- 
 charge will exonerate the' Acceptor;* and length of 
 time, at least if short of ih.e statute of limitations, will 
 be no discharge. And, in general, as to the rights of 
 the Holder, it will' make lio dilBference in any of these 
 respects, whether the Acceptor be an Acceptor . for 
 valu'6, or an accommodation Acceptor.® 
 
 § 253. Indeed, it niay be laid down as a general 
 rule, that a bond fide Holder for value is entitled to the 
 same rights and remedies against all abcommodation 
 Acceptor, as h6 is against an Acceptor for value, al- 
 though he knows that it is an accommodation accept- 
 
 i Walpole «. Pulteney, cited in Dingwall v. Dunster, 1 Dong. R. 248, 
 349. 
 3 Black «. Peele, cited 1 Doug. E. 236, 237, 248,249. 
 
 3 IMason «. Hunt, 1 Doug. R. 384, 297. 
 
 4 Ellis V. Galirido, cited' 1 Doug. R. 350, note. 
 
 5 Farquhar v. Southey, 1 Mood. & Malk. 14 ; Bayley on Bills, ch. 6, 
 \ 1, p. 210, 211 (5th edit. 1830) ; Adams «. Gregg, 2 Stark, R. 531 ; 
 Dingwall V. Dunster, 1 Doug. R. 235, 247. 
 
 6 Bayley on Bills, ch. 6, § 1, p. 212 to 214 (5th edit. 1830) ; Raggett 
 V. Axmore, 4 Taunt. R. 730; Fientum v. Pocock, 5 Taunt. R. 192; 
 Kerrison v. Cooke, 3 Camp. R, 362 ; Anderson v. Cleveland, 13 East, 
 430, note. 
 
304 BILLS 0¥ EXCHANGE. [CH. VIU. 
 
 ance.i Other circumstances, however, may intervene 
 to modify or change his rights ; as, for example, if ^le 
 knows that the acceptance has been for a particular 
 purpose, and that that purpose has been accomplished, 
 he cannot retain or apply the Bill to any other pur- 
 pose ; and the acceptance is discharged.^ So, where a 
 Bill is accepted for the mere accommodation of the 
 Drawer, or other Holder, it is obvious that such person 
 can have no claim upon the Acceptor under the ac- 
 ceptance ; for, as between them, no value exists or has 
 passed.* 
 
 § 254. There cannot be a series of successive Accept- 
 ors upon the same Bill. It must be accepted by the 
 original Drawee, or by the Drawee au lesoin, or by a 
 third person for honor, or, where the Bill states no 
 Drawee, by a person in that character. But, whenever 
 accepted in either way, the party so accepting, and he 
 only, is liable as Acceptor.* If any other person subse- 
 quently accepts the Bill for the purpose of guarantying 
 its credit in the usual form of an acceptance there, if 
 there is a sufficient consideration, he may be bound 
 thereby as a Guarantor; but he is not liable as an Ac- 
 
 1 Chitty on Bills, ch. 3, p. 82 ; Id. ch. 7, p. 334 to 336 (8th edit. 1833) ; 
 Smith c. Knox, 3 Esp. R. 46 ; Fentum v. Pooock, 5 Taunt. R. 192 ; 
 3 Kent, Coram. Leot. 44, p. 86 (4th edit.) ; Bank of Ireland u. Beresford, 
 
 6 Dow, R. 233 ; Townsley v. Sumrall, 2 Peters, R. 173, 182. — Pardes- 
 sus says, that a Drawee, who accepts without having value, or funds, is 
 said to accept a decouvert. Pardessus, Droit Comm. Tom. 2, art. 380. 
 
 2 Ibid. ; Cartwright v. Williams, 2 Stark. R. 340 ; Fletcher v. Heath, 
 
 7 Barn. & Cressw. 517. 
 
 8 Ibid. ; Chitty on Bills, ch. 3, p. 82 (8th edit. 1833) ; Sparrow v. 
 
 Chisman, 9 Barn. & Cressw. 241. 
 * Chitty on Bills, oh. 7, p. 311 (8th edit. 1833) ; Jackson v. Hudson, 
 Camp. R. 447 ; Bayley on Bills, ch. 6,^ l,p. 177, 178 (5th edit. 1830). 
 
 See Moles v. Bird, 11 Mass. R. 436; Davis v. Clarke, 6 Adolph. & Ellis, 
 
 N. S. 16. 
 
CH. VIII.] ACCEPTANCE OF. 305 
 
 ceptor.' [The mercantile rule is, that an acceptance 
 can be niade only by the party addressed, or for his 
 honor.^] 
 
 § 255. Where the original Drawee, and the Drawee 
 au hesoin, if any, refuse to accept the Bill, it is com- 
 petent for any third person (as we have already seen^) 
 to accept the Bill for the honor of any one or more, or 
 all of the antecedent parties on the Bill, whether 
 Drawers, or Indorsers ; and, in that case, it enures to 
 the benefit of all the parties subsequent to the person, 
 for whose honor it is accepted.* But this is at the 
 election of the Holder, who is in no case bound to take 
 an acceptance supra protest for honor, and may take it, 
 or refuse it at his pleasure.' There are two cases (as 
 
 ' Ibid. ; Hoare v. Cazenove, 16 East, R. 391 ; Williams v. Germaine, 
 7 Barn. & Cressw. 468 ; Ante, § 122. 
 
 2 Davis V. Clarke, 6 Adolph. & Ellis, N. S. 16.' 
 
 3 Ante, § 121 to 124 ; Chitty on Bills, ch. 2, p. 30 (8th edit. 1833) ; 
 Id. ch. 8, § 2, 3, p. 374 to 376. 
 
 4 Bayley on Bills, ch. 6, § 1, p. 176, 177 (5th edit. 1830.) See Pothier 
 de Change, u. 50, 113, 114 ; 3 Kent, Coram. Lect. 44, p. 87, 88 (4th 
 edit.) ; Ante, ^ 121 to 124. 
 
 5 Chitty on Bills, ch. 8, p. 376 (8th edit. 1833) ; Mitford or Mutford v. 
 Walcot, 12 Mod. R. 410; S. C. 1 Ld. Raym. 575 — Heineccius takes 
 notice of a similar usage on the continent of Europe. He says ; "Ali- 
 quando cambiis accedunt litterae commendatitis, quae mercatoribns vocan- 
 tur, eine Addresse, vel eine Notiz, et nihil aliud sunt, quam litterte, qni- 
 biis tertius paucioribus verbis logatur, vit, si forte is, cui injuncta est solu- 
 tib, acceptare cambium recuset, ipse praestet solutionem honorariam. Hse 
 litterae separatse schedulae inscribi, et aeu cambialibuslitterisadnectisolent. 
 Negante ergo acceptationem'eo, cui ilia injuncta est, exactor vel prsesen- 
 tans, previa protestation^, litteras cambiales una cum commendatitiis offert 
 tertio, cui commendatus est, eumque rogat, ut in honorem literaium sol- 
 vere velit. Quum vero commendatio alterum numquam obstringat : con- 
 seqnens est, ut et commendatitiae hx litterae non obligent tertium ad solu- 
 tionem praestandam. Quin ne declarare quidem voluntatem suam tenetur 
 ante diem solutionis. Vid. Phoonsen. in Stil. camb. Amstelod. cap. 24, 
 $4. Denique observandum, denegata solutione vel acceptatione, protes- 
 
 26* 
 
306 BILLS OP EXCHANGE. [CH. VIII. 
 
 we have also seen') in which an acceptance for honor 
 may be made ; the first (which is the most usual case) 
 is, where the Drawee refuses to accept the Bill ; the 
 second is, where, after acceptance, and before the 
 maturity of the Bill, the Acceptor absconds, or becomes 
 a bankrupt, or insolvent.® In the former case the 
 Holder is bound to protest the Bill for non-acceptance, 
 and give notice thereof if he means to bind the Drawer 
 or prior Indorsers ; and the protest is called a protest 
 for non-acceptance. In the other case, he may protest 
 the Bill at his pleasure, but he is not bound to do so ; 
 for, if he neglects to make this protest, it will not affect 
 his remedies against the prior parties, either Drawers 
 or Indorsers.^ This protest is called a protest for better 
 security.* 
 
 tationem fieri debeie sumptibus trassantis, vid. O. C. Hambarg. ait. 28 ; 
 idque etiam necessariam videri doctoiibus plerisqae, quamvis dissentiat 
 Franckius." Heinecc. de Camb. cap. 3, § 31, 33. 
 1 Ante, § 121 to 124. Post, § 258. 
 
 3 Chitty on Bills, ch. 8, § 2, p. 374 to 376 (8th edit. 1833) ; Bayley on 
 Bills, ch. 6, § 1, p. 176, 177 (5th edit. 1830.) 
 
 3 Ibid. ; Ex parte Wackerbath, 5 Ves. 574. See Beawes, Lex Merc^ 
 by Chitty, Vol. 1, p. 24, pi. 26 to 30, p. 566, 567 (edit. 1813.) 
 
 * Ibid. Mr. Chitty, upon this subject, says : " The custom of merchants' 
 is stated to be, that, if the Drawee of a Bill of Exchange abscond before 
 the day when the Bill is due, the Holder may protest it in order to have 
 better security for the payment, and should give notice to the Drawer and 
 Indorsers of the absconding of the Drawee ; and, if the Acceptor of a 
 foreign Bill become bankrupt before it is due, it seems that the Holder 
 may also in such case protest for better security ; but the Acceptor is 
 not, on account of the bankruptcy of the Drawer, compellable to give this 
 security. The neglect to make this protest will not affect the Holder's 
 remedy against the Drawer and Indorsers ; and its principal use appears to 
 be, that, by giving notice to the Drawers and Indorsers of the situation of 
 the Acceptor, by which it is become improbable that payment will be 
 made, they are enabled by other means to provide for the payment of the 
 Bill when due, and thereby prevent the loss of reexchange, &c. occasioned 
 by the return of the Bill. It may be recollected, that, though the Drawer 
 
CH. VIII.] ACCEPTANCE OF. 307 
 
 § 256. Such an acceptance for the honor of a party, 
 or of parties, is allowable, however, only when the Bill 
 has been refused acceptance by the Drawee, and has 
 been protested therefor, or has been protested for better 
 security, and not before ; ' and hence it is called an ac- 
 ceptance supra protest, in our law ; ® in France it is 
 called an .acceptance par intervention.^ The reason 
 seems to be, that the Drawer and Indorsers have a right 
 to say, that the Bill was not primarily drawn on the 
 Acceptor for honor ; and the only proper proof of the 
 refusal of the original Drawee is by a protest, that 
 being the known instrument, by the custom of mer- 
 chants, to establish the fact.* Nor is this alone suffi- 
 cient ; for the Acceptor for honor must also state, in his 
 acceptance, for whose honor he accepts, as his rights 
 against the antecedent parties may be essentially af- 
 fected thereby; for, if the Acceptor for honor shall 
 
 or Indorsers refuse to give better security, the Holder must, nevertheless 
 wait till the Bill be due before he can sue either of those parties." Chitty 
 on Bills, ch. g, § 2, p. 374. See, also, Marins on Bills, p. 21, 27, 28 • 
 "eawes. Lex Merc, by Chitty, Vol. 1, pi. 24 to 26, 29, 30 (edit. 1813) ; 
 ■yd on Bills, p. 139 (3d edit.) ; Anon. 1 Ld. Raym. 743 ; Com. Dio-. 
 'Merchant, F. 8. 
 
 1 Chitty on Bills, ch. 8, ^ 3, p. 375, 397 (8th edit. 1833) ; Marius on 
 Bills, p. 21, 22 ; Com. Dig. Merchant, F. 8 ; Hoare v. Cazenove, 16 East, 
 R. 391, 396, 397; Bayley on Bills, ch. 6, ^ 1, p. 180 (5th edit. 1830) ; 3' 
 Kent, Comm. Lect. 44, p. 87, 88 (4th edit.); Beawes, Lex Hereby 
 Chitty, Vol. 1, p. 38, 568 (edit. 1813); Brunetti v. Lewin, Lutw. R. 896; 
 Pardessus, Droit Comm. Tom. 2, art. 383 ; Pothier de Change, n. 114 • 
 Heinecc. de Gamb. cap. 6, ^ 9. 
 
 2'lbid.; Ante, § 121 to 124. 
 
 3 Chitty on Bills, ch. 8, ^ 3, p. 375 (8th edit. 1833) ; Code de Comm. 
 art. 126 ; Pardessus, Droit Comm. Tom. 2, art. 383 ; 3 Kent, Comm. Lect. 
 44, p. 87 (4th edit.) ; Savary, Le Parfait N6gociant, Tom. 1, Pt. 3, Liv. 1, 
 ch. 9, p. 835 to 839. : 
 
 * Marius on Bills, p. 21, 22. See Pardessus, Droit Comm. Tom. 3, 
 art. 383. 
 
308 BILLS OF EXCHANGE. [CH. VIII. 
 
 afterwards pay the Bill, he will be entitled to recourse 
 for repayment 'to the person, for whose honor he made 
 the acceptance, and to all other parties, who are liable 
 to that person.^ Heilce, if he accepts for the honor of 
 the Drawer only, he will, in general, have no right of 
 recourse against the Indorsers ; and if for the honor of 
 an Indorser, he will have no right of recourse against 
 any subsequent Indorser ; unless, indeed, such person, 
 for whose honor he accepts the Bill, might have such 
 right of recourse against either j as, for example, if he 
 were an accommodation Drawer or Indorser,® 
 
 § 257. The like doctrine (as to a protest, and naming 
 the party, for whose honor the Bill is accepted) seems 
 to prevail in the Law of France,' and, generally, on the 
 Continent of Europe. Heineccius says ; Cceterum com- 
 mune id habent viraque cambia, quod aliquando a tertio, qui 
 in camhio non est nominedus, solvantur. Quiim enim scepe- 
 numero contingcct, ut is, ad quern cmnhium dirigUur, accepta- 
 tionem deneget, tertius vero, trassantis amicus, illud sponie et 
 ultro acceptet : Hcec ace6ptatip vacatur in honorem littera- 
 rum. Eaque nmi aliter fieri potest, quam {1) interposita a 
 prcEsentate protestatione, et (2) expresso ejus nomine, cujus 
 in honorem aceeptatio facta sit.* But in France, by the 
 old law, the rights of the Acceptor for honor do not 
 
 1 Ante, § 121 to 124, 255 ; Bayley on Bills, ch. 6, ^ 1, p. 176 to 178 
 (5th edit. 1830) ; Chitty on Bijls, ch. 8, p. 382 (8th edit. 1833) ; Pothier 
 de Change, n. 113; Ex parte Wackerbath, 5 Ves. 574; Beawes, Lex 
 Merc, by Chitty, Vol. 1, pi. 47, 49, p. 569 (edit. 1813) ; Forbes on Bills, 
 p. 149, cited in Chitty on Bills, ch.8, ^ 3, p. 377, note (/) ; 3 Kent, Comm. 
 Lect. 44, p. 87 (4th edit.) ; Konig v. Bayard, 1 Peters, R. 250. 
 
 2 Ibid. ; Ante, ^ 123, 124. 
 
 3 Pothier de Change, n. 112 to 114; Code de Comm. art, 126 to 128 ; 
 Pardessus, Droit Coram. Tom. 3, art. 383, 405. 
 
 * Heinecc. de Camb. cap. 2, ^ 16 ; Id. cap. 6, ^ 9. 
 
CH. VIII.] ACCEPTANCE OF, 309 
 
 seem to have been as limited as iu our law ; at least, 
 Pothier informs us, that such an Acceptor, upon pay- 
 ment, not only has a right of recourse to the person, 
 for whose honor he accepted ; but he is also subrogated, 
 under the Ordinance of 1673, to all the rights of the 
 Holder of the Bill, at the time he pays it, against all 
 other persons who are liable to him thereon.^ The 
 modern French Law, however, seems to contain the 
 same limitations as ours, and confines the remedy of the 
 Acceptor iov^ honor to the parties, for whom he accepts, 
 and those who are liable to him.^ 
 
 § 258. Where a bill is accepted supra protest, for the 
 honor of a particular party, it would seem, by our law, 
 that, if the Holder takes the acceptance, he is not at 
 liberty to sue that party before the maturity of the 
 Bill, and its dishonor by such Acceptor. But there 
 seems no reason, why he may not, having given due 
 notice, sue the other parties to the Bill, or, at least, the 
 other prior parties to the Bill, who could have no re- 
 course against the person, for whose honor the Bill is 
 accepted. And, if the acceptance supra protest is 
 generally for the honor of the Bill, or of all the par- 
 ties upon the Bill, it would seem, that, in such case, the 
 Holder would not be at liberty to sue any of the par- 
 ties before the maturity and dishonor thereof; for that 
 would defeat the , whole object of the Acceptor supra 
 protest.^ But, according to the French Law, the Holder 
 of the Bill retains all his rights against the Drawer and 
 the Indorsers, on account of the non-acceptance by the 
 
 1 Pothier de Change, n. 114 ; Jousse, sur I'Ord, 1673, tit. 5, art. 3, p. 
 75,76 (edit. 1802.) 
 
 2 Cude de Comm. art. 159 ; Locr6, Esprit du Code de Comm. Tom. 1, 
 tit. 8, art. 159, p. 497, 498 ; Pardessus, Droit Comm. Tom. 3, art. 407. 
 
 3 Chitty on Bills, ch. 8, § 3, p. 375, 378 (8th edit. 1833.) 
 
310 BILLS OF EXCHANGE. [CH. VIII. 
 
 person, on whom the Bill was drawn, notwithstanding 
 any acceptance supra protest} Hence, the Holder has 
 a right to require from the Drawer and In'dorsers, either 
 reimbursement of the amount, or security for the due 
 payment thereof.^ 
 
 ^ 259. We have said, that an acceptance for honor, 
 or supra protest, may be made by any third person. 
 But, by our law, it may also be made by the Drawee ; 
 if he does not choofee to accept the Bill, drawn gene- 
 rally, on account of the person, in whose favor, or on 
 whose account, he is advised it is drawn, he may ac- 
 cept it for the honor of the Drawer, or of the Indorsers, 
 or of all or of any of them.^ The old French Law, in 
 like manner, allows the Drawee to refuse acceptance of 
 the Bill generally, and yet to accept it for the honor of 
 any of the other parties, except the Drawer.* But the 
 modern Commercial Code of France limits the right of 
 acceptance for honor, or siXpra protest, to some third 
 person, not a party to the Bill.^ Whenever, in any 
 case, a person accepts for honor, or supra pf-otest, it is 
 his duty, by the French Law, immediately to notify the 
 fact to the person, for whose honor he accepts it.^ The 
 like rule seems to prevail in our law.'' 
 
 1 Code de Comm. art. 128: 
 
 2 Patdessus, Droit Comm. Tom. 2, art. 382, 387; Chitty on Bills, ch. 8, 
 § 3, p. 375, 376 (8th edit. 1833.) 
 
 3 Chitty on Bills, ch. 8, § 3, p. 375 (8th edit. 1833); Beawes, Lex 
 Merc, by Chitty, Vol. 1, pi. 83, 34, p. 568 (edit. 1813) ; Bayley on Bills, 
 ch. 6, § 1, p. 176, 177 (5th edit. 1830.) 
 
 * Pothier de Change, n. 112. 
 
 5 Code de Comm. art. 126 ; Fardessus, Droit Comm. Tom. 2, art. 384 ; 
 Commercial Code, art. 387 j Chitty on Bills, ch. 8, § 3, p. 375, note (8ih 
 edit. 1833.) 
 
 6 Code de Comm. art. 127 ; Pardessus, Droit Comm. Tom. 2, art. 386. 
 T Chitty on Bills, eh. 8, § 3, p. 875 {8th edit. 1833) ; Beawes, Lex' 
 
 Merc, by Chitty, Vol. 2, pi. 83, 34, p. 368 (edit. 1813.) 
 
GH. Vin.] ACCEPTANCE OF. 311 
 
 § 260. We have already seea,' that, after one ac- 
 ceptjince, completely made and perfected by the 
 Drawee, no second person can intervene, and, by a 
 subsequent acceptance, charge himself as Acceptor, al- 
 though he may as Guarantor. But the like rule does 
 not apply in cases of an acceptance supra protest, or for 
 honor, to the same extent ; for, although there cannot 
 be more than one acceptance for the h,onor of any one 
 party to the Bill, yet there may be a succession of ac- 
 ceptances for the honor of different parties. Thus, for 
 example, one person may accept the Bill for the honor 
 of the Drawer, another for the honor of the first Indor- 
 ser, and another for the honor of the second Indorser, 
 and so on.® 
 
 1 Ante, ^ 122, 254. 
 
 2 Chitty on Bills, ch. 8, § 3, p. 376 (8th edit. 1833) ; Beawes, Lex 
 Merc, by Chitty, Vol. 1, pi. 42, p. 569 (edit. 1833) ; 2 Camp. R. 448, note. 
 The method of accepting swpra protest is said, by Mr. Chitty, to be as 
 follows. " The Acceptor must personally appear before a notary public 
 with witnesses, and declare, that he accepts such protested Bill in honor 
 of the Drawer or a particular named Indorser, or generally for honor, and 
 that he will satisfy the same at the appointed time ; and then he must 
 subscribe the Bill with his own hand, thus ; ' Accepted, supra protest, in 
 honor of J. B.' ; or, as is more usual, ' Accepts, S. P., ;' and sometimes it 
 
 is, ' Accepted under protest, for honor of Messrs. , and will be paid 
 
 for their account, if regularly protested and refused when due.' A general 
 acceptance supra protest is considered as made for the honor of the 
 Drawer, unless otherwise expressed. Such acceptance, however, may be 
 so worded, that, though it be intended for the honor of the Drawer, yet it 
 may equally bind the Indorser ; but, in this case, notice of such acceptance 
 must be sent to the latter. If there be several ofiFers of acceptance for 
 honor, that which is most extensive should, it is said, be preferred. The 
 Holder, as well as the Acceptor supra ptolest, should always take care to 
 have the Bill protested for non-acceptance before the acceptance for honor 
 is made, as otherwise, it is said, the Drawer might allege, that he did not 
 draw on the person making the acceptance ; and the Acceptor supra protest 
 might not be able to recover from the Drawer the money he might pay." 
 Chitty on Bills, ch. 8, § 3, p. 377, 378 (8th edit. 1833.) See also Code 
 de Comm. art. 136; Pardesslis, Droit Comm. Tom. 2, art. 385. 
 
312 BILLS OF EXCHANGE. [CH. VIIL 
 
 § 261. The obligations, resulting from a general ac- 
 ceptance, have been already considered in another 
 place.^ They are, on the part of the Acceptor, to pay 
 the Bill, upon presentment, at its maturity, or at any 
 time afterwards, according to its tenor, to the Holder. 
 The obligations of an acceptance for honor, or mpra 
 protest, are not (as has been already stated ®) exactly 
 coincident with the former; for, whereas the obli- 
 gations of a general acceptance are absolute, those 
 of an acceptance for honor, or supra protest, are 
 conditional; to wit, that the Acceptor will pay the 
 Bill, if duly presented to the original Drawee for 
 payment, at the time of its maturity, and he refuses 
 payment, and due protest is made thereof, and 
 due notice is given to him of the dishonor.^ All 
 these acts must be punctually done, or the Acceptor 
 will be discharged.* Pothier affirms the like doctrine 
 as the law of France ; * and Heineccius states it, with- 
 out any distinction between cases, where the Bill is to 
 be protested for non-acceptance, and cases where it is 
 protested for non-payment.® 
 
 § 262. There is another collateral consideration re- 
 sulting from an acceptance, which ought to be men- 
 tioned in this place. It is, that the acceptance, whether 
 general, or fot honor, or supra protest, after sight of the 
 
 1 Ante, § 113. 
 
 2 Ante, ^ 123. 
 
 3 Ante, \ 123; Chitty on Bills, ch. 8, § 3, p. 378 to 381 (8th edit. 
 1833) ; Bayley on Bills, ch. 6, § 1, p. 178, 179 (5th edit. 1830) ; Hoare 
 V. Cazenove, 16 East, R. 391 ; Williams v. Germaine, 7 Barn. & Cressw. 
 468. 
 
 4 Ibid. 
 
 5 Pothier de Change, n. 113. 
 
 6 Heinecc. de Camb. cap. 6, ^ 9; Ante, § 257. 
 
OH. Vm.] ACCEPTANCE OF. 313 
 
 Bill, admits the genuineness of the signature of the 
 Drawer ; and consequently, in favor of a bond fide. 
 Holder for value -without notice ; if the signature of the 
 Drawer turns out to he a forgery, the acceptance will, 
 nevertheless, be binding, and entitle such Holder to re- 
 cover thereon according to its tenor.' Biit there is no 
 such implied admission, on the part of the Acceptor, of 
 the genuineness of the signature of the Payee, or of 
 any other Indorser ; ^ and consequently, the Holder, in 
 order to recover against the Acceptor upon the Bill, 
 must establish, by proofs, the genuineness of their sig- 
 natures, in order to make title thereto, although he 
 need not prove the genuineness of that of the Drawer. 
 And this is equally true even in case the Bill is, or 
 purports to be, drawn by the Drawer, payable to his 
 own order, and purports to be indorsed by him ; for 
 
 1 Ante, \ 113 ; Bayley on Bills, ch. 8, p. 318, 319 (5th edit. 1830) ; 
 Id. ch. 11, p. 463, 463, 479 ; Chitty on Bills, ch. 7, p. 336, 337 (8th edit. 
 1833) ; Id. ch. 8, p. 376 ; Id. Pt. 2, ch. 5, p. 628 ; Wilkinson v. Lut- 
 widge, 1 Str. R. 648 ; Cooper v. Le Blanc, 2 Str. 1051 ; Leach v. Bu- 
 chanan, 4 Esp. R. 226 ; Price v. Neale, 3 Burr. 1354 ; Smith v. Chester, 
 1 Term R. 655; Bass v. Olive, 4 M. & Selw. 15; Smith y. Mercer, 6 
 Taunt. R. 76; Wilkinson v. Johnson, 3 Barn. & Cresaw. 428 ; Free v. 
 Hawkins, Holt, N. P. Rep. 550 ; Canal Bank v. Bank of Albany, 1 Hill, 
 N. Y. Rep. 287 ; Bank of United States v. Bank of Georgia, 10 Wheat. 
 R. 333 ; S. P. Canal Bank v. Albany Bank, 1 Hill, N. Y. R. 287; Sann- 
 derson v. CoUman, 4 Scott, R. 638. 
 
 2 Chitty on Bills, Pt. 2, ch. 5, p. 628, 629, 635 (8th edit. 1833.) Bay- 
 ley on Bills, ch. 11, p. 464, 465, 479, 480, 483 (5th edit. 1830) ; Hem- 
 mings V. Robinson, Barnes's Notes, 436 (3d edit.) ; Gray v. Palmer, 1 
 Esp. R. 125 ; MTerson v. Thoytes, Peake, R. 20 ; Bosanquet v. Ander- 
 son, 6 Esp. R. 43 ; Robinson v. Yarrow, 7 Taunt. R. 455 ; Smith v. 
 Chester, 1 Term. R. 654 ; Canal Bank v. Bank of Albany, 1 Hill, N. Y. 
 Rep. 287 ; Ante, ^ 113, 225 ; Beeman v. Duck, 11 Mees. & Welsh. 251, 
 255 ; Coggill v. American Exchange Bank, 1 Comstock, R, 113 ; Goddard 
 ■u. Merchant's Bank, 2 Sandford, Superior Ct. N. Y. R. 247 ; Merchant's 
 Bank v. M'Intyre ; 1 Ibid. 431. 
 
 B. OF EX. 27 
 
314 BILLS OF EXCSHANGE. [CH. VIIL 
 
 still the genuineness of the indorsement must be proved 
 against the Acceptor ; unless, indeed, at the time of 
 his acceptance, he knew the indorsement to be a forgery, 
 and intended that the Bill should be put in circulation 
 by a forged indorsement.' In like manner, an accept- 
 ance admits the ability of the party to draw, and if 
 drawn by an agent, in the name of his principal, it also 
 admits that he has full authority to draw the Bill. 
 But it does not admit the authority of the agent to in- 
 dorse the same Bill, even though it is made payable to 
 the order of his principal, and is indorsed by the same 
 agent in the name of the principal.^ 
 
 § 263. The reason of this distinction between the 
 case of a Drawer and that of an Indorser, as to the 
 genuineness of their signatures, is not very apparent, 
 since it applies equally to an Indorser, whether the Bill 
 has been accepted before or after his indorsement.^ 
 The reason, however, usually assigned is, that when 
 the Bill is presented for acceptance, the Acceptor only 
 looks to the handwriting of the Drawer, with which he 
 is presumed to be acquainted, and he affirms its genu- 
 ineness, by giving credit to the Bill by his acceptance, 
 in favor of the legal holder thereof. But the Acceptor 
 cannot be presumed to have any such knowledge of the 
 handwriting of the Indorsers, and therefore ought not 
 to be presumed to admit it.* It is true that, in one 
 
 1 Beeman v. Duck, 11 Mees. & Welsh. 251, 255. 
 
 2 Chitty on Bills, Pt. 2, ch. 5, p. 629, 630 (8th edit. 1833) ; Robinson 
 V. Yarrow, 7 Taunt. R. 455 ; AUport v. Meek, 4 Carr. & Payne, R. 267 ; 
 Bayley on Bills, ch, 8, p. 318, 319; Id. oh. 11, p. 463, 464 (5lh edit. 
 1830) ; Id. ch. 2, p. 45 ; Taylor v. Croker, 4 Esp. R. 187 ; Hallifax v. 
 Lyle, 3 Welshy, Hurlstone & Gordon, 446. 
 
 3 Bayley oh Bills, ch. 11, p. 464, 465 (5th edit. 1830) ; Smith v. Ches- 
 ter, 1 Term R. 654. 
 
 i See Price v. Neale, 3 Burr, R. 1354; Smith v. Chester, 1 Term R. 
 
CH. vm.] ACCEPTANCE OF. 315 
 
 sense, every Indorser is treated as a new Drawer to 
 the Bill ; but that is not so as to the Acceptor hut only 
 as to the subsequent Indorsees under the Indorser ; for 
 the Acceptor is ordinarily a perfect stranger to the 
 Indorsers, and upon payment of the Bill has no right 
 of recourse against any of them, at least if he is not an 
 accommodation Acceptor on their account, and at their 
 request. - 
 
 § 264. The same doctrine is laid down by Pothier, as 
 to the. acceptance of the Bill being an admission of the 
 genuineness of the signature of the Drawer, which 
 binds him to the payment thereof in favor of a bond fide 
 Holder for value without notice ; although the Accep- 
 tor cannot recover over the amount from the Drawer, 
 since he has never authorized the payment;^ a doc- 
 trine of common justice, equally supported by our law 
 as well as the foreign law.^ The same doctrine is 
 affirmed by Scaccia,* and by Pardessus.'* [But this 
 rule is not to be extended to the case of a fraudulent 
 alteration in the body of the Bill.^J 
 
 § 265. Having stated the general obligations and 
 effects of an acceptance, let us in the next place con- 
 sider how the right of the Holder to enforce the same 
 may be waived, or discharged, or extinguished. And 
 this may be(l) by mere operation of law; or (2) by 
 the express or implied waiver or agreement of the 
 parties ; or (3) by payment of the Bill ; or (4) by a 
 
 655 ; Robinson «. Yarrow, 7 Taunt. R. 455 ; Canal Bank v. Bank of Al- 
 bany, 1 Hill, N. Y. E. 287. 
 
 1 Pothier de Change, ii. 103. 
 
 2 Ibid. ; Bayley on Bills, ch. 8, p. 318 to 320 (5th edit. 1830.) 
 
 3 Scaccia de Coram. ^ 3, Gloss. 5, Quest. 15, pi. 393 to 396, p. 390. 
 ■* Pardessus, Droit Coram. Tom. 2, art. 378, 449 to 451. 
 
 5 Bank of Commerce v. Union Bank, 3 Comstock, 230. 
 
316 BILLS OP EXCHANGE. [CH. VIIL 
 
 release. First, in regard to a discharge by mere ope- 
 ration of law. This takes place whenever the Acceptor 
 is duly discharged therefrom by virtue of the laws of 
 the country where the acceptance is made. Thus, for 
 example, if the Acceptor should become a bankrupt, 
 and should be discharged from his acceptance under 
 the laws of the country, or should be discharged by the 
 statute of limitations of that country.' So, where, by 
 the laws of the country where the acceptance is made, 
 if the Drawer fails and the Acceptor has not sufficient 
 effects of the Drawer in his hands at the time of the 
 acceptance, he is discharged therefrom, that discharge 
 will be held valid and of equal obligation everywhere.^ 
 § 266. Secondly. In respect to a discharge by the 
 waiver or agreement of the parties. The general rule 
 of our law is, that a simple contract (that is, a contract 
 not under seal) may, previously to a breach thereof, be 
 discharged by mere parol, or by a waiver of the rights 
 accruing under it.'' But after it is broken it can only 
 be discharged by payment, or by a release, (that is, a 
 discharge under seal,) or by taking some collateral 
 thing in satisfaction, or by merger by operation of law, 
 as by a judgment, or taking a higher security.'' But, 
 in cases of Bills of Exchange and other negotiable 
 instruments, the rule does not prevail to the same 
 
 1 Ante, § 161 to 163. 
 
 2 Chitty on Bills, ch. 7, p. 339 (8th edit. 1833) ; Burrows v. Jemimo, 
 2 Str. R. 733 ; S. C. 2 Eq. Abridg. 524 ; Select Cases in Chan. 144 ; 
 Story on Conflict of Laws, § 333 ; Ante, ^ 158, 164. 
 
 3 Chitty on Bills, ch. 7, p. 339 to 342 (8th edit. 1833) ; Milward «. 
 Ingram, 2 Mod. R. 43, 44 ; Com. Dig. Action on the Case, Assumpsit, G. 
 
 4 Ibid.; Edwards v. Weeks, 2 Mod. R. 259; Langden v. Stokes, Cro. 
 Car. 483 ; Heathcote v. Crookshanks, 2 Term R. 24 ; Eearslake v. Mor- 
 gan, 5 Term R. 514 ; Com. Dig. Action on the Case, Assumpsit, G. 
 
CH. VIII.] ACCEPTANCE OF. 317 
 
 extent ; but, for the convenience of commerce, it is 
 greatly relaxed and modified. A discharge may be 
 by any agreement between the parties, founded upon a 
 sufficient consideration, and collateral to the payment 
 of the money ; and it may be express, or it may be 
 implied from circumstances. i In the latter case, a 
 clear intention to discharge, or a clear renunciation of 
 all claim against the Acceptor, must be established ; 
 for mere delay or omission to demand payment from 
 him, not coupled with any other circumstances or con- 
 sideration, will not be sufficient.^ But, where the re- 
 nunciation is clear, and the intention to discharge 
 unquestionable, there, if there be a sufficient consider- 
 ation, or an act done on the part of the Acceptor, 
 which might not otherwise have been done, which 
 affects his interests, the Acceptor will be discharged.^ 
 Thus, where the Holder, knowing that the Acceptor 
 was an accommodation Acceptor, and possessing goods 
 of the Drawer, from the produce of which he expected 
 payment, told the Acceptor and his creditors, that he 
 should look to the Drawer, and not come upon the 
 Acceptor ; and, in consequence, the Acceptor assigned 
 his property for the benefit of his creditors ; it was 
 held, that if by the facts, an unconditional renunciation 
 was established, it was a discharge of the Acceptor, 
 although the goods in the possession of the Holder, 
 
 1 Chitty on Bills, ch. 7, p. 339 to 341 (8th edit. 1833); Id. ch. 9, 
 p. 446 to 448 ; Bayley on Bills, ch. 6, § 1, p. 208 to 213 (5th edit. 1830) ; 
 Ellis Galindo, 1 Doug. R. 250, note ; Dingwall v. Dunster, 1 Doug. R. 
 247 ; Anderson v. Cleveland, 13 East, K. 430, note ; Hosmer v. Steele, 
 4 Welsby, Hurlstone & Gordon, R. 1. 
 
 2 Ibid. ; Farquhari). Southey, 1 Mood. & Malk. 14; S. C. 2 Carr. & 
 Payne, 497 ; Adams v. Gregg, 2 Stark. R. 531. 
 
 3 Ibid. 
 
 27* 
 
318 BILLS OF EXCHANGE. [CH. VHI. 
 
 proved to be of little value, and the Drawer was insol- 
 vent ; but, if a conditional renunciation only, namely, 
 if the Holder were otherwise satisfied, then it was not.' 
 § 267. For the most part, cases of waiver depend up- 
 on similar considerations, and result from express or 
 implied agreements.® But they are not necessarily of 
 this character. On the contrary, wherever the conduct 
 of the Holder towards the Acceptor operates as a fraud 
 upon him, or misleads him to his injury, or lulls him 
 into a false security, as to his rights or remedies against 
 the Drawer, or against any other party who would be 
 responsible to him upon payment of the Bill ; there, it 
 should seem, that the common principles of a Court of 
 Equity are applied to the case, ez cequo et lono, and 
 the Acceptor will be deemed exonerated, by such con- 
 duct, from all responsibility. Thus, for example, if 
 the Holder, knowing that the Acceptor, being an ac- 
 commodation Acceptor, had taken security for the 
 amount of the Bill, or, having funds in his hands, should 
 falsely state to him that the Bill was paid, or other- 
 wise discharged, and thereby the Acceptor should be 
 induced to give up his security or funds, the proceed- 
 ing would be treated, in Equity, as a fraud upon the 
 Acceptor, and a waiver of the rights of the Holder 
 against him, if he should afterwards attempt to enforce 
 the acceptance. So, where the Holder had positively 
 agreed to consider the acceptance at an end, and had 
 entered in his own Bill-book, "Mr. P.'s (the Acceptor) 
 
 1 Whalley v. Tricker, 1 Camp. R. 35 ; Parker v. Leigh, 2 Starkie, 
 329. ' 
 
 2 Bayley on Bills, ch. 6, § 1, p. 208 to 213 (5th edit. 1830) ; Chitty on 
 Bills, oh. 7, p. 333, 334, 339, to 344 (8th edit. 1833) ; Id. oh. 9, p. 446 
 to 449 ; Hosmer w. Seele, 4 Welsby, Hurlstone & Gordon, R. 1-. 
 
CH. VUI.J ACCEPTANCE OF. 319 
 
 acceptance annulled," and he lay by, and made no de- 
 mand on the Acceptor for three years ; it was held, 
 that the acceptance was waived and discharged.^ So, 
 where the Holder arrested the Acceptor, and, finding 
 that the acceptance was an accommodation one for the 
 Drawer, his attorney took security from the Drawer, 
 and sent a message to the Acceptor, that he had set- 
 tled with the Drawer, and he need not trouble himself 
 any further ; and the Drawer having afterward become 
 bankrupt the Holder sought to recover from the Ac- 
 ceptor ; it was held, that the acceptance was waived 
 and discharged.* 
 
 § 268. But, inasmuch as the Acceptor is, as to the 
 Holder, to be deemed the primary debtor, and the other 
 parties to the Bill, as only secondarily liable, it seems 
 clear, that merely taking security from the other par- 
 ties, or giving them further time to pay the Bill, will 
 not discharge the Acceptor, whether he be an accommo- 
 dation Acceptor, or an Acceptor for value.^ 
 
 § 269. In respect to a discharge by payment, or by 
 
 « Walpole V. Pulteney, 1 Doug. R. 248, 249 ; Bayley on Bills, ch. 6, 
 ^ 1, p. 208, note (80) (5th edit. 1830.) 
 
 2 Black «. Peele, cited 1 Doug. R. 248, 249 ; Bayley on Bills, ch. 6, 
 ^ 1, p. 208, note (81) (5th edit. 1830) ; Chilty on Bills, ch. 7, p. 333, 334, 
 339 to 341 (8th edit. 1833.) 
 
 3 Bayley on Bills, ch. 6, (j 1, p. 212 to 214 (5th edit. 1830) ; Id. ch. 9, 
 p. 338 to 345; Chitty on Bills, ch. 7, p. 333, 334, 339 to 341, 344, 345 
 (8th edit. 1833) ; Id. ch. 9, p. ,446, 447 ; Id. p. 452, 458 ; Raggett v. Ax- 
 tnoie, 4 Taunt. R. 730 ; Fentum v. Pocook, 5 Taunt. R. 192; Kerrison 
 V. Cooke, 3 Camp. R. 362 ; Ellis v. Galindo, 1 Doug. R. 247, note ; Mal- 
 let V. Thompson, 6 Esp. R. 178 ; Walwyn v. St. Quintin, 1 Bos. & Pull. 
 652 ; Bank of Ireland v. Beresford, 6 Dow, R. 233 ; Price v. Edwards, 
 10 Barn. & Cressw. 584 ; Harrison v. Courtauld, 3 Bain. & Adolph. 36 ; 
 
 . Nichols «. Norris, 3 Barn. & Adolph. 41, note — Laxton v. Peat (3 Camp. 
 185) is to the contrary ; but, as Lord Tenterden said, in Yallop v. Ebers, 
 (1 B. & Adolph. 703), it has been long overruled. 
 
320 BILLS OF EXCHANGE. [CH. VIII. 
 
 satisfaction, or by a release ; it is plain, that a payment, 
 or satisfaction by the Acceptor to a Bill discharges it 
 as to all the other parties ; for the Holder cannot be 
 entitled to a double compensation.^ And it must, in 
 such a case, be wholly immaterial, whether the accept- 
 ance be an a6commodation acceptance, or one for value ; 
 for, in each case, so far as the Bill is concerned, the Ac- 
 ceptor is the party primarily liable, and all the others 
 stand only as collaterally liable for the payment.^ Pay- 
 ment, also, by any one of several joint Acceptors, or by 
 any one partner of the acceptance of a jfipm, will dis- 
 charge all the Acceptors." Payment by any of the other 
 parties to the Bill does not discharge the Acceptor, 
 unless it is so intended by the parties ; but it merely 
 operates to transfer to the party, so paying, the right 
 to recover the amount from the Acceptor, unless the 
 latter be an accommodation Acceptor for such party.* 
 The same principles apply generally, to cases of release. 
 A release of the Acceptor, by the Holder, extinguishes 
 all right of recovery upon the Bill, not only against the 
 Acceptor, but against all the antecedent parties.^ So, 
 a release of one of the Acceptors releases all the rest ; 
 
 1 See Code de Comm. art. 156. 
 
 2 Wallace a. M'Connell, 13 Peters, R. 615. 
 
 3 Bayley on Bills, ch. 9, p. 345 to 348 (5th edit. 1830.) 
 
 * Jones V. Broadhurst, 9 Manning, Granger & Scott, 173. See also, 
 Bacon V. Searles, 1 H. Black. 89 ; Beck v. Robley, Ibid, note ; Purssord 
 V. Peek, 9 M. & W. 196 ; Johnson v. Kennion, 2 Wilson, 262 ; Collow 
 V. Lawrence, 3 M. & S. 95 ; Pierson v. Dunlop, 4 Bingham, 390 ; Wal- 
 wyn V. St. Quintin, 9 Mees. & Welsby, 96; Reynolds v. Blackburn, 7 
 Adolph. & Ellis, 161 ; Sard v. Rhodes, iMees. & W. 153, 196 ; Hem- 
 ming V. Biook, Carr. & Marsh. 57 ; Pownal v. Ferrand, 6 Barn. & C. 
 439. 
 
 5 Chitty on Bills, ch. 7, p. 346 (8th edit. 1833) ; Id. ch. 9, p. 449 ; Co. 
 Litt. 332; Stirling v. Forester, 3 Bligh, K. 575, 590. .See Solly v, 
 Forbes, 2 Brod. & Bing. R. 88. 
 
CH. VIII.] ACCEPTANCE OP. 321r 
 
 for it amounts to an extinguishment of the debt crea- 
 ted by the acceptance.-' 
 
 § 270. Pothier has put the case of the Holder's re- 
 leasing the whole or a part of the amount of the Bill of 
 Exchange to the Drawer, and says, that, in such a case, 
 it will release the Acceptor, to the like amount, from 
 any payment of the Bill, where he is an Acceptor with- 
 out funds of the Drawer in his hands. He seems to 
 deduce this conclusion from the presumed intention of 
 the Drawer, who would otherwise be responsible to the 
 Acceptor for the full amount of the Bill.^ He insists, 
 also, that the same rule will apply, where the Acceptor 
 has funds in his hands ; because he says, the acceptance 
 is but a security for the due payment of the amount by 
 the Drawer at the place of payment ; and the obliga- 
 tion of the Drawer is the principal, and that of the Ac- 
 ceptor is merely accessorial. And, when the principal 
 obligation is extinguished, the accessorial obligation 
 is necessarily also extinguished.^ Our law would pro- 
 bably treat both cases in the same way, where the 
 parties positively intended that it should have that 
 operation, but not otherwise; not for the reason last 
 assigned by Pothier, but because the transaction 
 would amount to an agreement to treat it, pro tanto 
 as a payment in discharge of the Acceptor.* Pothier 
 also holds, that a release by the Holder to the Drawer 
 will discharge all the Indorsers ; * and the like rule 
 seems applicable to a release of any Indorser, as to the 
 
 1 Ibid. ; Post, ^ 431. 
 
 2 Pothier de Change, n. 180. 
 
 3 Pothier de Change, n. 181 ; Pothier des Oblig. n. 377, 617. — Our law 
 treats the Acceptor as the primary debtor. See Ante, § 268, 269. 
 
 4 See Chitty on Bills, ch. 9, p. 451 to 453 (8th edit. 1833) ; Ante, 
 § 268, 269. 
 
 6 Pothier de Change, n. 182. 
 
322 BILLS OP EXCHANGE. [CH. VIIL 
 
 subsequent ladorsers. Our law holds the like doctrine 
 in a more general form ; and that is, that any release 
 bj the Holder to any party, whether Drawer or Indor- 
 ser, will .discharge every other party from payment of 
 the Bill, to whom the Releasee would be liable, if he, 
 the party to whom the Releasee would be so liable, 
 should be compelled to pay it. But it will not discharge 
 any other party, to whom the Releasee would not be 
 so liable ; as, for example, a prior Indorser to the Re- 
 leasee.-' The reason is, that thereby a circuity of action 
 is avoided, and due effect is given to the release ; for 
 the Holder can never be permitted to insist, that his 
 release shall not operate as a discharge of the debt in 
 favor of the Releasee ; and yet such would be the 
 effect, if he might be compelled to pay it to another 
 party, to whom the Holder should have recourse, and 
 whom he, the Releasee, was yet bound to indemnify. 
 
 § 271. It remains only to remark, under this head, 
 that the Acceptor is not discharged by any omission of 
 the Holder to present the Bill for payment to him at 
 maturity ; nor (as we have seen) merely by the Holder's 
 giving time to, or releasing any of, the antecedent par- 
 ties to the Bill.^ 
 
 1 Bayley on Bills, ch. 9, p. 338 to 345 (5th edit. 1830) ; Carstairs v. 
 RoUeston, 5 Taunt. R. 551 ; Smith v. Knox, 3 Esp. R. 46 ; English v. 
 Darley, 2 Bos. & Pull. 62. 
 
 2 Ante, § 268, 269 ; V^allace v. M'Connell, 13 Peters, R. 186. 
 
CH. IX.] NON-ACCEPTANCE OF. 323 
 
 CHAPTER IX. 
 
 NON-ACCEPTANCE — PEOCEEDINGS ON. 
 
 § 272. The order of our subject next leads to the 
 consideration of the duties of the Holder upon Non- 
 acceptance of the Bill according to its tenor, to entitle 
 him to recover against any of the antecedent parties, 
 from or through whom he has derived title. In respect 
 to these duties, there is no difference, whether the re- 
 fusal to accept he absolute, or qualified, or conditional.^ 
 In each case, if the Holder would bind the prior parties, 
 he must act in the same manner, and perform substan- 
 tially the same functions.® In this respect, the Law of 
 
 1 Chitty on Bills, ch. 8,4 1, p. 354 (8lh edit. 1833) ; Id. p. 363^64 ; 
 Bayley on Bills, ch. 7, § 2, p. 252 to 254 (5th edit. 1830). — It is said, in 
 Bayley on Bills (ch. 7, § 2, p. 254, 5th edit. 1830,) that " A neglect to 
 give notice, where there is a conditional acceptance, is done away by 
 the completion of those conditions before the Bill becomes payable ; 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." For this no authority is cited. But Mr. Chitty adopts the doctrine 
 from 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 dis- 
 honor, and qualified or conditional acceptance, in order to bind them. 
 This is the doctrine asserted by Pothier (De Change, n. 47, 48.) Ante, 
 § 240, 241. If the Holder takes a conditional acceptance, he cannot resort 
 to the Drawer, except upon failure of the Acceptor to pay according to the 
 conditional acceptance. Campbell v. Pettingill, 7 Greenl, R. 126. 
 
 2 Ante, § 227, 240. 
 
324 BILLS or EXCHANGE. [CH. IX. 
 
 France seems entirely coincident with ours.' If there 
 is an acceptance of a foreign Bill supra protest, or for 
 honor, this does not vary the duties of the Holder ; and 
 he must give notice thereof to all the parties, whom he 
 means to hold responsible to him, the same as in other 
 cases.* In this respect the case differs from a protest 
 for better security, after acceptance, where notice there- 
 of to the other parties is optional on the part of the 
 Holder.'' 
 
 § 273. Immediately, then, upon the dishonor of a 
 foreign Bill by the refusal of the Drawee to accept it, 
 it is, in general, the indispensable duty of the Holder 
 to have the Bill duly protested, and notice thereof 
 given to the antecedent parties, to whom he looks for 
 reimbursement or indemnity.^ If he neglects so to do, 
 the antecedent parties are discharged, and he himself 
 must submit to the loss.® There is no difference in 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 370, 371, 428 ; Code de Comm. 
 art. 124 ; Ante, ^ 241. 
 
 2 Ante, ^ 237, 255, 256 ; Chitty on Bills, ch. 8, § 1, p. 354, 360, 361 ; 
 Id. § 2, p. 374 to 376 (8th edit. 1833) ; Bayley on Bills, ch. 7, § 2, p. 253 
 (5th edit. 1830) ; Marius on Bills, p. 21 ; Beawes, Lex Merc, by Chitty, 
 Vol. 1, pi. 221, p. 595 (edit. 1813) ; Code de Comm. art. 128. 
 
 3 Chitty on Bills, ch. 8, p. 361 to 365, 374 (8lh edit. 1833) ; Beawes, 
 Lex Mere, by Chitty, Vol. 1, pi. 24, 25, p. 567 (edit. 1813.) 
 
 4 2 Black. Comm. p. 469, 470; Chitty on Bills,.ch. 8, ^ I, p. 354, 355 
 (8th edit. 1833) ; Bayley on Bills, ch. 7, ^ 2, p. 258 to 265, (5lh edit.) ; 
 Rogers v. Stephens, 2 Term R. 713 ; Gale v. Walsh, 5 Term R. 239 ; 
 Brough V. Perkins, 2 Ld. Raym. 993, 6 Mod. R. 80, 1 Salk. 131 ; Union 
 Bank u. Hyde, 6 Wheat. R. 572 ; Com. Dig. Merchant, F. 8 ; 3 Kent, 
 Comm. Lect. 44, p. 93 to 95 (4th edit.); 2 Black. Comm. 469, 470; 1 
 Bell, Comm. B. 3, ch. 2, p. 408 (5th edit.) ; Poihier de Change, n. 133, 
 134, 136, 138, 148, 166. 
 
 5 Ibid. The same rule prevails generally, although perhaps, not uni- 
 versally, in America. Upon this subject, Mr. Chancellor Kent says; 
 " The English Law, requiring protest, and notice of non-acceptance of 
 foreign Bills, has been adopted and followed, as the true rule of mercantile 
 
CH. IX.] NON-ACCEPTANCE OF. 325 
 
 this respect, whether the Bill he payable at a certain 
 time after date, or after sight ; for, although the former 
 class of Bills are not required to be presented, except 
 at the maturity of the Bill, yet, if such a Bill be actu- 
 ally presented for acceptance and dishonored, the ante- 
 cedent parties have a right to a protest and notice" 
 thereof 
 
 § 274. Heineccius lays down the like general rule 
 in unequivocal terms. Speaking upon the subject of 
 the liability of the Drawer and the Indorsers of a Bill, 
 he says, that it attaches, whether there be a dishonor 
 by a noB-acceptance, or by a non-payment of the Bill ; 
 but, in each case, there is a necessity of protesting the 
 Bill for the dishonor, and, if it is neglected, the whole 
 obligation is extinguished. Deinde ipse trassans olliga- 
 
 law, in tlie States of Massachusetts, Connecticut, New York, Maryland, 
 Virginia, North Carolina, and South Carolina. But the Supreme Court 
 of the United States, in Brown v. Barry, and in Clarlie v. Russel, held, 
 that, in an action on a protest for non-payment on a foreign Bill, protest for 
 non-acceptance, or a notice of the non-acceptance, need not be shown, 
 inasmuch as they were not required by the custom of merchants in this 
 country; and those decisions have been followed in Pennsylvania; pro- 
 test for non-payment is sufficient. It becomes^ therefore, a little difficult 
 to know what is the true rule of the Law Merchant in the United States, 
 on this point, after such contradictory decisions. The Scotch law is the 
 same as the English ; and it appears to me, that the English rule is the 
 better doctrine, and the most consistent with commercial policy." 3 Kent, 
 Coram. Lect. 44, p. 95. See Id. p. 94, note (J) (4th edit.) The deci- 
 sions of the Supreme Court of the United States in Brown v. Barry 
 (3 Dallas, R. 365,) and Clarke v. Russel (3 Dallas, R. 415 ; S. C. cited 
 6 Serg. & Rawle, R. 358,) if they would now be held law by that Court, 
 would be so held, only upon the ground of the local law of Pennsylvania, 
 as to Bills drawn or payable there. 
 
 1 Ante, ^ 228 ; Chilty on Bills, oh. 7, p. 299, 300 (8th edit. 1833) ; Id. 
 p. 354; O'Keefe v. Dunn, 6 Taunt. R. 305; S. C. 5 Maule & Selw. 
 282 ; United States v. Barker, 4 Wash. Cir. R. 464 ; Bank of V7ashington 
 t). Triplett, 1 Peters, R. 25. 
 
 B. OF EX. 28 
 
326 BILLS OP EXCHANGE. [CH. IX, 
 
 tur turn remittenti, turn prcesentanti, vel ejy,s indossatario, 
 ad restituendam pechniam, prcestandamque indemnitatem, si 
 cambium vel acceptatum non sit, vel non solutum ; quamvis 
 idroque casu interposita protestatione opus sit, ohligaiio ista 
 omnino exspirat} The French Law requires similar 
 proceedings and protests, where there is a presentment 
 of the Bill, and a dishonor by non-acceptance or non- 
 payment.^ 
 
 § 275. Certain exceptions, however, have been ad- 
 mitted by our law to the general rule, which are entire- 
 ly consistent with the reason, on which it is founded. 
 One is, where the Drawer or Indorser has agreed or 
 requested, that, in case of dishonor, it should be return- 
 ed without protest, in order to save expenses.' Ano- 
 ther, by our law, is (as we shall more fully see here- 
 after), where the Drawee had no funds in his hands 
 belonging to the Drawer at the time of drawing the 
 Bill, and he had no right to draw the Bill.'' But, in all 
 such cases of exception, the effect is strictly limited to 
 the parties, who have made such an agreement, or who 
 stand in the peculiar predicament pointed out by the 
 nature of the exception, and it does not extend to other 
 parti^s to the Bill.^ 
 
 § 276. A protest is, properly speaking, a solemn 
 
 1 Heinecc. de Camb. cap. 6, ^ 4 ; Ante, ^ 114 to 116. 
 
 2 Pardessus, Tom. 2, art. 381, 418, 424, 42^ ; Code de Comm. art. 173 
 to 175. — The French Law does not seem to require any protest for non- 
 acceptance, or notice thereof, where the Bill is not by law required to be 
 presented for acceptance. Fardessus, Droit Comm. Tom. 2, art. 381, 424 ; 
 Chilty on Bills, ch. 8, p. 355 (8th edit. 1833) ; Post, § 277, note (2) ; 
 Savary, Le Parfait Negooiant, Tom. 1, Part 3, ch. 7, p. 828, 829. 
 
 3 Chitty on Bills, ch. 5, p. 188 ; Id. ch. 10, p. 490 (8th edit. 1833.) 
 
 4 Id. ch. 8, p. 356 to 359, 362 ; Id. ch. 10, p. 467 to 469, 490. See 
 Pardessus, Droit Comm. Tom. 2, art. 381, 425. 
 
 s Pardessus, Droit Comm. Tom. 2, art. 425. 
 
CH. IX.] NON-ACCEPTANCE OF. 327 
 
 declaration on behalf of the Holder, against any loss 
 to be sustained by the non-acceptance, or by the non- 
 payment, of the Bill, as the case may be ; ' [though in 
 a popular sense it includes all the steps, after the dis- 
 honor of negotiable paper, necessary to charge a party 
 to it.^] It is highly important, even if it be not abso- 
 lutely essential, in all cases, that a copy of the Bill 
 should be prefixed to all protests, with the indorsements 
 thereon, verbatim, whenever practicable, and that the 
 reasons given by the Drawee for non-acceptance, or 
 non-payment, should also be stated in the protest.^ 
 The protest is required to be made out and drawn up 
 by a notary public, if there be one in or near the place, 
 where the Bill is payable, or the acceptance is to be 
 made.* If there be no such notary, then it is sufficient, 
 if the protest be made out, and drawn up by a respect- 
 able inhabitant of the place, in the presence of two 
 witnesses. It should be made out, and drawn up, in 
 the form required by the law or usage of the place, 
 where it is made.* .So essential is the production of a 
 
 1 Bayley on Bills, ch. 7, § 2, p. 258, 259 (5lh edit. 1830) ; Chitty on 
 Bills, ch. 8, p. 362, 363 (8th edit. 1833) ; Id. ch. 10, p. 489 to 494 ; Po- 
 thier de Change, n. 134, 135; Cora. Dig. Merchant, 'F. 10; Leftly u. 
 Mills, 4 Term R. 170, 175 ; Starkie on Evid. Vol. 2, p. 162 (2d edit.) ; 
 Rogers v. Stephens, 2 Term R. 713 ; 3 Kent, Comm. Lect. 44, p. 93, 94 
 (4th edit.) 
 
 2 Coddington v. Davis, 1 Comstock, E. 1S6 ; S. C. 3 Denio, R. 16. 
 
 3 Chitty on Bills, ch. 8, p. 362, 363 (8th edit. 1833); Id. ch. 10, p. 
 509 ; Pothier de Chang^e, n. 135, 145, 148 ; Pardessus, Droit Comm. art. 
 419 ; Code de Comm. 174. 
 
 4 Ibid. The duties of a notary cannot be performed by his clerk or by a 
 third person. The Onondaga County Bank v. Bates, 3 Hill, N. Y. R. 53. 
 See Carter v. Union Bank, .7 Humphrey, R. 548. 
 
 5 Chitty on Bills, ch. 8, p. 362, 363 (8th edit. 1833) ; Id. ch. 10, p. 490 
 to 496, and notes ; Pothier de Change, n. 155 ; Carter v. Union Bank, 
 7 Humphrey, R. 548. — The manner and circumstances, under which the 
 
328 BILLS or EXCHANGE. [CH. IX. 
 
 protest for non-acceptance, that it cannot be supplied 
 by mere proof of noting the Bill for non-acceptance, 
 and a subsequent protest for non-payment.-' 
 
 protest is to be made, are thus described by Mr. Kyd. " If the person to 
 whom the Bill is addressed, on presenlment, will not accept it, the Holder 
 is to carry it to a person vested with a public character, who is to go to 
 the Drawee and demand acceptance in the same manner as before ; and 
 if he then refuse, the officer is there to make a minute on the Bill itself, 
 consisting of his initials, the month, the day, and the year, with his 
 charges for minuting. He must afterwards draw up a solemn declara- 
 tion, that the Bill has been presented for acceptance, which was refused, 
 and that, the Holder intentls to recover all damages, which he, or the 
 deliverer of the money to the Drawer, or any other, may sustain on 
 account of the non-acceptance ; the minute is, in common language, termed 
 the noting of the Bill ; the solemn declaration, the protest ; and the person, 
 whose office it is to do these acts, a public notary ; and to his protestation 
 all foreign courts give credit. In making a protest, therefore, there are 
 three things to be done ; the noting, demanding, and drawing up the pro- 
 test. But the noting is unknown in the law, as distinguished from the 
 protest ; it is merely a preliminary step, and has grown into practice only 
 in modern times. The party, making the demand, must have authority to 
 receive the money ; and, in case that be refused, the drawing up of the 
 protest is mere matter of form, the demand being the material part. The 
 demand of payment of a foreign Bill must be made by the notary public 
 himself, and not by his clerk." Kyd on Bills, ch. 7, p. 136, 137 (3d Lon- 
 don edit.) See also Chitty on Bills, ch. 8, p. 362, 363 (8lh edit. 1833) ; 
 Id. ch. 10, p. 490 to 496, and notes, 508, 509. The common form of the 
 protest now in use in England, in cases of non-payment, and the same 
 applies, mutatis mutandis, in cases of non-acceptance, is as follows : " On 
 this day, the first of September, in the year of our Lord one thousand 
 eight hundred and thirty-one, at the request of A. B., Bearer of the original 
 Bill of Exchange, whereof a true copy is on the other side written, I. Y. 
 Z., of London, notary public, by royal authority duly admitted and sworn, 
 did exhibit the said Bill, [ffcre the presentment is stated, and to wliom 
 made, and the reason, if assigned, for non-payment.] Wherefore I, the 
 said notary, at the request aforesaid, have protested, and by these presents 
 do solemnly protest, as well against the Drawer, Acceptor, and Indorsers 
 of the said Bill of Exchange, as against all others, whom it may concern, 
 
 1 Chitty on Bills, ch. 8, p. 362 (8th edit. 1833) ; Id. ch. 10, p. 489, 
 490 ; Bayley on Bills, ch. 7, ^ 2, p. 266, 367 (5th edit. 1830) ; Chaters v. 
 Bell, 4 Esp. R. 48 ; Rogers v. Stephens, 2 Term R. 713. 
 
CH, IX.] NON-ACCEPTANCE OF. 329 
 
 § 277. The making or drawing up of such protests 
 seems required by the universal custom of merchants 
 in all countries, in all cases of foreign Bills of Ex- 
 change. Scaccia, Heineccius, and Pothier, constantly 
 refer to such protests as in universal use.' The reason, 
 
 for exchange, reexchange, and all costs, charges, damages, and interest, 
 suffered and to be suffered, for want of payment of the said original Bill. 
 Thus done and protested in London aforesaid, in the presence of E. F. 
 [The expenses of noting, and protest, are then subscribed.]" Chitty on 
 Bills, ch. 10, p. 497 (8th edit. 1833.) Substantially the same form is in 
 use in America. In France, the Code of Commerce contains the following 
 provisions on the subject of protests. " Art. 173. The protest for non- 
 acceptance, or non-payment, is made by two notaries, or by one notary and 
 two witnesses, or by a bailiff and two witnesses. The protest must be 
 made, at the domicil of the person, on whom the Bill was drawn, or at his 
 last known place of residence ; at the domicil of the person mentioned in 
 the Bill of Exchange, who is to pay it in case of need ; at the domicil of 
 the Acceptor supra protest. The whole is a single instrument of writing. 
 In case of false indication of domicil, the protest is preceded by a certificate 
 of perquisition or inquiry. — Art. 174. The protest contains, the literal 
 copy of the Bill of Exchange, the acceptance, indorsements, and directions 
 therein mentioned ; the demand of payment of the Bill of Exchange. It 
 declares, the presence or absence of the person, who ought to pay it; 
 the motives of refusing payment, and the inability or refusal to sign." 
 Code of Commerce, p. 143, translated by Rodman. See also Pothier de 
 Change, n. 135, 136; Jousse, sur I'Ord. 1673, tit. 5, art. 8 to 10, p. 97 
 to 100 ; Chiity on Bills, ch. 10, p. 491, 492 (8th edit. 1833) ; Carter v. 
 Burley, 9 New Hamp. Rep. 554. 
 
 1 Scaccia de Coram. § 6, gloss. 1, n. 97 to 99, p. 439, 440 ; Heinecc. de 
 Camb. cap. 4, § 30 to 35 ; Pothier de Change, n. 133 to 135. — Mr. Chitty 
 says (Chitty on Bills, ch. 8, p. 355, 8th edit. 1833) : " The law in France 
 is different, for there a protest for non-acceptance is only requisite when a 
 presentment for acceptance was essential, as in case of Bills payable after 
 sight ; and in other cases, although there has been a refusal to accept, the 
 Holder may or not, at his election, protest and give notice." For this he 
 cites 1 Pardessus de Change, 404. The same doctrine will be found 
 stated in Pardessus, Droit Comm. Tom. 2, Set. 381 ; Ante, ^ 274, note (3) ; 
 Savary, Le Parfait N6gociant, Tom. 1, Part 3, ch. 7, p. 828, 829. The 
 form of Protest used in England will be found in Chitty on Bills. The 
 form used in Scotland will be found in Thomson on Bills of Exchange, 2d 
 edit. 1836, Appendix No. 2, p. 786, 787. The form used in France will 
 be found in Dictionnaire de Notoriat, edit. 1833, a Paris, art. Protest, p. 
 887. 
 
330 BILLS OF EXCHANGE. [CH. IX. 
 
 why the instrument is required to be made by a notary 
 public, is, that this officer is one of great public dis- 
 tinction and consequence in the Civil Law Countries, 
 before whom, and in whose books, instruments of the 
 most solemn nature are usually executed ; and certified 
 copies of those instruments are generally deemed of 
 such high authority as to be ordinarily admissible as 
 evidence in courts of justice in those countries.-' 
 Hence, we may readily perceive, why protests of Bills 
 of Exchange should have been, from the earliest period, 
 made by notaries; and why their certified protests, 
 under their hands and seals of office, are universally 
 admitted in all countries, even in those governed by 
 the Common Law, as veritable documents, which prove 
 themselves, and are therefore admitted, in all Courts of 
 Justice, as primd facie evidence of the facts contained 
 therein.^ 
 
 • Story on Conflict of Laws, § 630, 631, 635 c. See Brown v. Thorn- 
 ton, 6 Barn. & Adolph. 185 ; Per BuUer, J., in Leftly v. Mills, 4 Term R. 
 175 ; Chitty on Bills, ch. 10, p. 489, 490 (8lh edit. 1833.) 
 
 2 Bay ley on Bills, ch. U, p. 487 (5th edit. 1830) ; Chitty on Bills, ch. 
 8, p. 361, 362 ; Id. ch. 10, p. 643 (8th edit. 1833) ; Anon. 12 Mod. 345 ; 
 3 Kent, Comm. Lect. 44, p. 93, and note (i) ; Halleday v. McDougal, 
 20 Wend. R. 85 ; Townsley *«. Sumrall, 2 Peters, R. 170 ; Nicholls v. 
 W^ebb, 8 Wheat. R. 333 ; De Wolfs. Murray, 2 Sandford, Superior Ct. 
 N. Y. K. 166. See Wilkinson on the Law of Shipping, p. 86, edit. 
 1843, as to Notaries in England. — It seems, that, although the protest of 
 a Bill in a foreign country, which is drawn in England, but payable abroad, 
 will, of itself, be admissible in evidence in England ; yet, if the Bill he 
 drawn in a foreign country, payable in England, and be protested in Eng- 
 land, the latter will not be admissible in proof in a suit in England, but 
 must be proved in the same manner as if it were an inland Bill. This was 
 so ruled by Lord Ellenborough, in Chesmer v. Noyes, 4 Camp. R. 129, 
 130. No authority was produced for the doctrine ; and it seems to me 
 open to some question upon principle. The true question does not seem 
 to be so much, where it is protested, but, whether the Bill be a foreign 
 Bill, or an inland Bill. 
 
CH. IX.J NON-ACCEPTANCE OF. 331 
 
 § 278. The time of drawing up the protest, as well 
 as the form thereof, is to be regulated by the law of 
 the place where the protest is made.' This varies in 
 different countries. In England and America the pro- 
 test is noted on the very day of the dishonor, although 
 it is not, or may not be, ordinarily, drawn out in form 
 on that day.^ A mere noting of the Bill, without an 
 actual protest for non-acceptance, will not suffice.^ In 
 France the protest cannot properly be made until the 
 day after the Bill has been dishonored.^ 
 
 § 279. We have already seen that the death, or 
 bankruptcy, or insolvency, or absconding of the Drawee, 
 constitutes no sufficient reason for the Holder not to 
 present the Bill at the proper place and time for ac- 
 ceptance ; but that he is bound so to make presentment, 
 and to make due protest, and give due notice of the 
 dishonor of the Bill, according to the facts.* Nay, if 
 he has lost or misplaced the Bill of Exchange, he 
 should still apply for acceptance thereof, and, upon re- 
 fusal, protest the Bill.^ 
 
 1 Ante, § 138, 276 ; Chitty on Bills, oh. 5, p. 193 ; Id. ch. 10, p. 506 
 (8th edit. 1833) ; Pothier de Change, ... 155. 
 
 2 Chitty on Bills, ch. 10, p. 506, 509 (8th edit. 1833) ; Ante, § 276, 
 note ; Post, ^ 283 ; Bayley on Bills, ch. 7, ^ 2, p. 266, 267 (5ih edit. 
 1830) ; Chaters v. Bell, 4 Esp. R. 48. 
 
 3 See Orr v. Maginnis, 7 East, R. 358, 359 ; Smith v. Roach, 7 B. 
 Munroe, R. 17. v 
 
 * Ibid.'; Pardessus, Droit Comm. Tom. 2, art. 183, 420 ; Code de Comm. 
 art. 162; Post, § 283. 
 
 5 Ante, ^ 230 ; Chitty on Bills, ch. 8, p. 360, 361 (8th edit. 1833) ; 
 Bayley on Bills, ch. 7, § 1, p. 218, 219 (5th edit. 1830) ; Pothier de 
 Change, n. 146, 147 ; Code de Comm. art. 163. 
 
 6 Pothier de Change, n. 145. See Chitty on Bills, ch. 6, p. 288, 289 
 (8th edit. 1833) ; Id. 297, 389. See Pardessus, Droit Comm. Tom. 2, 
 art. 408 to 410. — Pothier seems to lay down the doctrine generally, as 
 applicable equally to cases of the presentment for acceptance as well as to 
 
332 BILLS OP EXCHANGE. [CH. IX. 
 
 § 280. But although, ia general, a protest on the 
 part of the Holder is essential, upon the dishonor of a 
 Bill of Exchange, to found a right of action against the 
 Drawer, or any prior Indorser ; yet, there are circum- 
 stances which may excuse or justify the want of suob 
 protest. Thus, for example, if the protest is prevented 
 from being made in due season, or made at all, by an. 
 inevitable accident or casualty, or by superior force, 
 that will excuse or justify the omission or want.^ So, 
 if the Bill be drawn by the Drawer without funds, or 
 without having any right to draw, the want of a pro- 
 test, like the want of notice to the Drawer, will not 
 prejudice the Holder ; but he will be entitled to recover 
 against the Drawer, upon the ground that he has not, 
 
 cases for payment. Mr. Chitty applies it only to cases of payment, and 
 says : " It is incumbent also on the party who has thus lost the Bill, even 
 though it has been destroyed, to make application, at the time it is due, 
 for payment, and to give notice to all the parties of the refusal of the 
 Drawee to pay the same ; for, otherwise, he will lose his remedy against 
 the Drawer and Indorsers. It is said by Marius, that the Holder of a Bill, 
 ■which has been lost, should, in the presence of a notary and two witnesses, 
 acquaint the Acceptor with the loss, and signify to him, that, at his peril, 
 he pay to none but himself or his order ; and the same writer says, that 
 no person should refuse to pay a Bill, which he has accepted, to the loser, 
 on the ground of its having been lost, if he have sufficient security and 
 indemnification offered to him ; and that, if he do, he will be liable to 
 make good all loss, reexchange, and charges. The Drawee, however, 
 has always a right to insist on the production of the Bill before he pays 
 it, and may legally defend an action,' if it be not produced, it being part of 
 his contract to pay only on presentment of the Bill. If the loser and 
 Holder contest the right, the Acceptor' nriiist require indemnity, or file a 
 bill of interpleader, or apply to the Court under the recent Act, 1 & 2 
 Wm. IV., ch. 58, § 1." Chitty on Bills, itbi supra; Dehors v. Harriott, 
 
 1 Show. R. 163. 
 
 ' Chitty on Bills, ch. 8, p. 360^ 366 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, § 3, p. 294, 295 (5th edit. 1830) ; Pothier de Change, n. 144 ; Par- 
 dessus. Droit Comm. Tom. 2, art. 426, 434, 435 ; Rogers v. Stephens, 
 
 2 Term R. 713 ; Orr v. Maginnis, 7 East, R. 359 ; Ante, ^ S34 ; Post, 
 ^ 280, ^ 308, ^ 309. 
 
CH. IX.] NON-ACCEPTANCE OF. 333 
 
 and could not, sustain any loss or injury thereby.^ 
 This also seems to be the doctrine of the French Law, 
 as it is expounded by Pothier and other jurists.* So, 
 a promise to pay the Bill after a full knowledge of the 
 fact, that no protest has been made, will be a waiver of 
 the objection by the party, and he will be held bound 
 in the same way, and to the same extent, as if there 
 had been a regular protest.^ 
 
 § 281. Hitherto we have been speaking of protests 
 of foreign Bills of Exchange. In respect to inland 
 Bills, a protest is not in general necessary, unless it is 
 prescribed by the local municipal law, either for the 
 purposes of founding the right or enlarging the remedy. 
 In England and America a protest is not, generally, 
 necessary to found a right of recovery against the other 
 parties to an inland Bill ; but in certain cases, in Eng- 
 land, it may, by statute, entitle the Holder to a cumu- 
 lative remedy.* 
 
 1 Chitty on Bills, ch. 8, p. 356, 357, 362 (8th edit. 1833) ; Legge v. 
 Thorpe, 13 East, R. 171 ; Orr v. Maginnis, 7 East, R. 359. 
 
 2 Pothier de Change, n. 156 to 158. 
 
 3 Chitty on Bills, ch. 10, p. 535, 537 (8th edit. 1833); Pattersons. 
 Beecher, 6 Moore, R. 319 ; Gibbon v. Coggan, 2 Camp. R. 188 ; Green- 
 way V. Hindley, 4 Camp. R. 52 ; Bayley on Bills, ch. 11, p. 474 to 476 
 (5th edit. 1830) ; Campbell v. Webster, 2 Manning, Granger, & Scott, 
 258. 
 
 * Chitty on Bills, ch. 8, p. 361, 364,365 (8th edit. 1833) ; Id. p. 499 to 
 501 ; Bayley on Bills, ch. 7, § 2, p. 260 to 266 (5th edit. 1830) ; Brough 
 V. Parkings, 2 Ld. Raym. 992, 6 iMod. R. 80, I Salk. R. 131 fWindle v. 
 Andrews, 2 Barn. & Aid. 696; Lumley w. Palmer, 2 Str. R. 1000; 3 
 Kent, Comm. Lect. 44, p. 93, 94. — Upon this subject, Mr. Chancelloi 
 Kent says : " On inland Bills, no protest was required by the Cjommon 
 Law, and it was only made necessary in England, in certain cases, by the 
 statutes of 9tli and lOlh Wra. III., and 3d and 4th Anne; and yet, not- 
 withstanding the language of those statutes, it has long been the settled 
 rule and practice not to consider the protest of an inland Bill as necessary 
 or material. Nor is a protest of an inland Bill generally deemed necessary 
 
334 BILLS OF EXCHANGE. [CH. IX. 
 
 § 282. The place of the protest for non-acceptance 
 should be the place, where the Bill is to be presented 
 for acceptance.' But, upon a Bill drawn upon the 
 
 in this country, though the practice is, to have Bills, drawn in one State 
 on persons in another, protested by a notary, and the Act of the State of, 
 Kentucky of 1798, ch. 57, seemed to require it. Tt is also necessary in 
 Virginia ; and the omission to give notice of the protest of an inland Bill 
 causes the loss of interest and damages." 3 Kent, Comm. Lect. 44, p. 
 93, 94 (4th edit.) See also Rice v. Hogan, 8 Dana, R. 135 ; Wilcock v. 
 Riddle, 5 Call. R. 358. Mr. Chitty remarks; "At Common Law, no 
 inland Bill could be protested for non-acceptance; but by the statute 3 & 
 4 Anne, ch. 9, § 4, a protest was given 'in case of refusal to accept, in 
 writing, any inland Bill amounting to the sum of five pounds, expressed to 
 be given for value received, and payable at days, weeks, or months after 
 date, in the same manner as in the case of foreign Bills of Exchange, and 
 for which protest there shall be paid two shillings and no more.' It has 
 been supposed, that this protest must be made in order to entitle the 
 Holder to demand of the Drawer or Indorsers costs, damages, and interest ; 
 but, in practice, the plaintiff recovers interest against the Drawer or In- 
 dorser of an inland Bill, on proof of due notice, without proving i» pro- 
 test; and it has recently been decided, that a protest is not essential to the 
 recovery of interest. If the Bill be of the above description, and under 
 the amount of £20, the Holder is certainly entitled to the above accumu- 
 lative remedy, though no protest were made. This protest is directed to 
 be made by such persons as are appointed by 9 & 10 Wm. HI., ch 17, 
 § 1, to protest inland Bills for non-payment, namely, by a notary public ; 
 and, in default of him, by any other substantial person of the city, town, 
 or place, in the presence of two or more credible witnesses. Within four- 
 teen days of the making of this protest, the same must be sent, or other 
 notice thereof must be given to, or left in writing at, the usual place of 
 abode of the party from whom the Bill was received. Thfe protest for 
 non-acceptance, in the case of an inland Bill, is by no means necessary, 
 and the want of it does not alTect the Holder's right to the principal sum, 
 as it would in the case of a foreign Bill ; and it is in practice seldom 
 made. An inland Bill is, in general, only noted for non-acceptance, which 
 noting, as already observed, is of no avail ; and if not paid when due, it is 
 then noted, and sometimes, though not very often, protested for non- 
 payment; and a protest for non-acceptance, made in this country, must be 
 proved by the notary, who made it, and it will not, as in the case of a 
 protest made abroad, prove itself." Chitty on Bills, ch. 8, p. 364, 365 (8th 
 edit. 1833.) 
 
 1 Chitty on Bills, ch. 8, p. 363 (8th edit. 1833) ; Mitchell v. Baring, 
 10 Barn. & Cressw. 1, 4 ; Marius on Bills, p. 26. 
 
CH IX.] NON-ACCEPTANCE OF. 335 
 
 Drawees in one place, payable in another, a question 
 has been made, Whether, in case of an acceptance, 
 and refusal of payment afterwards, the protest should 
 be made at the place of acceptance, or at the place of 
 payment? The latter would seem to be the proper 
 
 placo-' 
 
 § 283. As to the time of making the protest, it 
 should seem, that it is governed by the law of the 
 place where the dishonor takes place ; and, by our law, 
 it should ordinarily be made, or, at least, noted, on 
 the same day, on which the non-acceptance or refusal 
 has taken place.® But it may be presumed, by analogy 
 
 1 Chitty on Bills, ch. 8, p. 363 (8th edit. 1833,) note (a) ; Mitchell t>. 
 Baring, 10 Barn. & Ctessw. 1, 11 ; Pardessus, Droit Coram. Tom. 2, art. 
 421. But see Matius on Bills, p. 126. — By the recent statute of 2 and 3 
 William IV., ch. 98, it is provided ; " Whereas, doubts having arisen as 
 to the place in which it is requisite to protest for non-payment. Bills of 
 Exchange, which, on the presentment for acceptance to the Drawee or 
 Drawees, shall not have been accepted, such Bills of Exchange being made 
 payable at a place other than the place mentioned therein to be the resi- 
 dence of the Drawee or Drawees thereof, and it is expedient to remove 
 such doubts ; be it therefore enacted, that, from and after the passine of 
 this Act, all Bills of Exchange, wherein the Drawer or Drawers thereof 
 shall have expressed that such Bills of Exchange are to be payable in 
 any place olher than the place by him or them therein mentioned to be the 
 residence of the Drawee or Drawees thereof, and which shall not, on the 
 presentment for acceptance thereof, be accepted, shall or may be, without 
 further presentment to the Drawee or Drawees, protested for non-payment 
 in the place in which such Bills of Exchange shall have been, by the 
 Drawer or Drawers, expressed to be payable, unless the amount owing 
 upon such Bills of Exchange shall have been paid to the Holder or Holders 
 thereof, on the day on which such Bills of Exchange would have become 
 payable, had the same been duly accepted." This statute appears to have 
 been passed in consequence of the decision in Mitchell v. Baring, 10 Barn. 
 & Cress w. 1. 
 
 2 Per BuUer, J., in Leftly ». Mills, 4 Term. R. 170, 174 ; Ante, (j 278; 
 S. P. Bank of Rochester v. Gray, 2 Hill, 227 ; Chitty on Bills, ch. 10, p. 
 506 to 509 (8th edit. 1833) ; Id. ch. 5, p. 193 ; Bayley on Bills, ch. 7, \ 2, 
 p. 266, 267 (5th edit. 1830.)— His language was : "With regard to 
 
336 BILLS OF EXCHANGE. [oH. IX. 
 
 to the cases of an omission to give notice of the dis- 
 honor, that, -where the making of the protest by the 
 Holder, or his agent, or by the notary, is prevented by 
 inevitable casualty or accident, or by superior force, or 
 by a public calamity, or by a public prohibition, in 
 such cases, if the protest is made as soon afterwards, as 
 it reasonably can be, that will be suificient.^ In 
 France, a Bill cannot be protested until the day after 
 the refusal to accept, or to make payment, as the case 
 may be." And, by the like analogy to the cases of a 
 
 foreign Bills of Exchange, all the books agree, that the protest must be 
 made on the last day of grace. Now, that supposesadefault in payment; 
 for a protest cannot exist unless default be made. But, if the party has 
 till the last moment of the day to pay the Bill, the protest cannot be made 
 on that day. Therefore, the usage on Bills of Exchange is established ; 
 they are payable any time on the last day of grace on demand, provided 
 that demand be made within reasonable hours. A demand at a very early 
 hour of the day, at two or three o'clock in the morning, would be at an 
 unreasonable hour; but, on the other hand, to say, that the demand should 
 be postponed till midnight, would be to establish a rule attended with mis- 
 chievous consequences. If this case were to be governed by any analogy 
 to the demand of rent, payment of a Bill of Exchange could not be de- 
 manded till sunset ; and, if so, the situation of bankers would be extremely 
 hazardous ; for then they would be obliged to send out their clerks at night 
 with Bdls to a very considerable amount, all of which must be presented 
 within a.short space of time, though to houses in different parts of the 
 town." Leftly v. Mills, 4 Term. R. 174, 175. 
 
 1 Chitty on Bills, oh. 8, p. 360, 365 (8lh edit. 1833) ; Id. ch. 8, p. 422, 
 485, and note; Id. ch. 10, p. 524 ; Pothierde Change, n. 144; Pardessus, 
 Droit Comm. Tom. 2, art. 426. — Whether, by our law, an omission to 
 make a presentment for acceptance or for payment, en the day required, 
 will be excused by the like inevitable casually or accident, or by superior 
 force, may admit of more doubt. See Chitty on Bills, ch. 8, p. 360 (8th 
 edit. 1833) ; Id. ch. 9, p. 384, 385, 389, 422 ; Id. ch. 10, p. 485, and note. 
 But in the foreign law, there can be no doubt, that it would be an excuse. 
 Pothier de Change, n. 144. See Patience v. Townley, 3 Smith, K. 223, 
 234-; Pardessus, Droit Comm. Tom. 2, art. 426. 
 
 S Ante, ^ 278; Chitty on Bills, ch. 5, p. 193 {8th edit. 1833) ; Id. ch. 8, 
 p. 365 ; Id. ch. 10, p. 506 ; Pardessus, Droit Comm. Tom 2, art. 183, 420. 
 See Hopkirk v. Page, 3 Brock. R. 20.— ■ By the statute of 9 and 10 Will. 
 
CH. IX.] NON-ACCEPTANCE OF. 337 
 
 demand of payment of a Bill, no presentment for ac- 
 ceptance, or protest for non-acceptance, or notice 
 thereof, is required to be made on a Sunday, or on any 
 holyday, or upon any day, which, by the religious ordi- 
 nances or customs of the sect or country, to which the 
 Drawee belongs, is set apart for religious observances, 
 and is not allowed to be devoted to secular purposes ; 
 and, consequently, no protest need be made on that 
 day.^ This seems, also, to be the law of France, and of 
 Continental Europe generally.^ 
 
 § 284. In the next place, not only must a protest 
 for non-acceptance be duly made, but notice of the 
 dishonor should be, as soon as it reasonably can be, 
 given to all the antecedent parties, whom the Holder 
 means to hold chargeable with the dishonor. We 
 have already seen, 3 that notice is, by our law, required 
 to be given upon all Bills, which have been dishonored 
 upon presentment for acceptance, whether they Avere 
 necessary to be so presented or not ; and, therefore, 
 the doctrine hereafter stated will equally apply to all 
 cases, in which notice is required by law.* The rea- 
 
 IIL, ch. 17, no inland Bill can be protested until the expiration of the 
 days of grace, and, of course, neither can the protest be made, or notice 
 thereof given, until the day after the Bill falls due. If such a protest is 
 made, although unnecessarily so, the same, with notice thereof, is, by 
 section 2d of the same Act, to be forwarded within fourteen days after it 
 is made, to the proper parties. Chitty on Bills, ch. 10, p. 511 (8th edit. 
 1833.) 
 
 1 Chitty on Bills, ch. 8, p. 367, 368 (8lh edit. 1833) ; Id. ch. 10, p. 507, 
 511, 519, 520; Lindo v. Unsworth, 2 Camp. R. 602 ; Pothier de Change, 
 n. 140 ; Heinecc. de Camb. cap. 4, 1} 37, 41 ; Howard v. Ives, 1 Hill, N. 
 Y. R. 263, 265. 
 
 ^ Pardessus, Droit Coram. Tom. 2, art. 420 ; Code de Comm. art. 162 ; 
 Heinecc. de Camb. cap. 4, ^ 37, 41. 
 
 3 Ante, § 228 ; Bank of Washington v. Triplett, 1 Peters, R. 35. 
 
 4 Ante, § 228. 
 
 B. OF EX. ■ 29 
 
338 BILLS OF EXCHANGE. [CH. IX. 
 
 son, why the law, ia general, requires the Holder to 
 give due notice of non-acceptance by the Drawee, is, 
 that the Drawer may forthwith withdraw from the pos- 
 session of the Drawee such effects as he may already 
 have, or may stop those which he is in course of re- 
 ceiving ; and that the Drawer and Indorsers may re- 
 spectively take the necessary measures to obtain pay- 
 ment from, the parties respectively liable to them. 
 And, if notice be not given, it is a presumption of 
 law, that the Drawer and Indorsers are prejudiced by 
 the omission ; and it is on this principle, that notice of 
 non-acceptance and non-payment is required.' This 
 subject of notice will necessarily embrace the consider- 
 ation of the time, the place, the mode, and the form 
 of giving notice, and the persons, by whom, and to 
 whom, it should be given. 
 
 § 285. As to the time of giving notice. It is im- 
 possible to lay dowii any absolute rule, in regard to 
 foreign Bills, upon this subject, since it is obvious, that 
 the circumstances of different cases must necessarily, 
 in this respect, affect the rights and duties of the 
 Holder. All that can properly be said is, that the 
 notice must be given within a reasonable time after 
 the dishonor and protest of the Bill, and due diligence 
 be exercised for this purpose.^ This reasonable time 
 is sometimes positively fixed by the law of particulaT 
 
 1 Chitty on Bills, ch. 8, p. 356 (8th edit. 1833) ; Whitfield v. Savage, 
 2 Bos. & Pull. 280 ; Orr v. Maginnis, 7 East, R. 362 ; Claridge v. Dal- 
 ton, 4 Maule & Selw. 226 ; Cory v. Scott, 3 Barn. & Adolph. 621. The 
 French law seems to be different. Ante, § 228 ; Pardessus, Droit Comm. 
 Tom. 2, art. 381 ; Chitty on Bills, ch. 8, p. 355 (8th edit. 1833.) 
 
 2 Chitty on Bills, ch. 8, p. 366, 367 (8th edit. 1833) ; Id. ch. 10, p. 509 
 to 512 ; Darbishire v. Parker, 6 East, R. 3, 8, 9 ; Haynes v. Birks, 3 
 Boss. & Pull. 599. 
 
CH. IX.] NON-ACCEPTANCE OP. 3^9 
 
 countries ; and ihen, as to the parties governed by 
 that law, it must be strictly followed.' Thus, although 
 the protest must be made according to the law of the 
 place of acceptance, yet the notice to the Drawer 
 must be according to the law of the place where the 
 Bill was drawn, and to the Indorsers, according to the 
 law of the place where their indorsements were re- 
 spectively made.^ 
 
 § 286. Independent of any such positive law or local 
 usage, what constitutes a reasonable time for giving no- 
 tice is a matter dependant upon the circumstances of 
 each particular case. When, as frequently occurs 
 between distant countries, the usual intercourse is car- 
 ried on by means of regular packets, sailing at particu- 
 lar periods, (as is the case between New York and Eng- 
 land, and New York and Havre,) or by means of regular 
 steam-ships, sailing at the like periods, (as is the case 
 between Boston and Liverpool,) then, and in such cases, 
 notice should be sent by the next regular packet or 
 steam-ship, that sails for the port, where the party, to 
 whom notice is to be given, resides, or to some neigh- 
 boring port, according to the usual course of transporta- 
 tion of letters of business, if a reasonable time before 
 her departure is left for writing and forwarding the 
 notice.^ On the other hand, if there are no such re- 
 
 ' Chitty on Bills, oh. 5, p. 193 (8th edit. 1833) ; Id. ch. 10, p. 490, 506 
 to 508. See Pothier de Change, n. 155 ; Ante, § 176, 177, and note 2. 
 
 2 Ibid. ; Pardessus, Droit Comra. Tom. 5, art. 1485, 1488, 1497 to 1499 ; 
 Wallace v. Agry, 4 Mason, R. 336. But see Rothschild v. Currie, 1 
 Adolph. & Ellis, New R. 43, and note. Ante, § 176, 177, and note 2. 
 Post, §296, 366, 391. 
 
 3 See Bayley on Bills, ch. 7, § 2, p. 279 (5th edit. 1830) ; Muilman v. 
 D'Eguino, 2 H. Black. 565 ; Chitty on Bills, ch. 10, p. 505, 508 (8th edit. 
 1833) ; Darbishire v. Parker, 6 East, R. 3, 7. 
 
340 BILLS OP EXCHANGE. [CH. IX. 
 
 gular packets or steam-ships, or their times of sail- 
 ing are at distant intervals, and, in the mean time, 
 other ships are about to sail for the same port, or for 
 some neighboring port, it may be proper to send the 
 notice by such ship, if, upon reasonable calculation, her 
 arrival may be presumed to be earlier than the regular 
 packets or steamships.' If^ with the ports of the coun- 
 try, where the Bills are protested, the communication 
 is irregular, or at different seasons by different routes 
 or ways of conveyance, that should be adopted, to send 
 the notice, which may reasonably be presumed to be 
 the most certain and expeditious, under all the circum- 
 stances. Thus, for example, if a Bill drawn in America 
 is protested in St. Petersburg in the winter, the usual 
 mode of communication by land, in common commercial 
 transactions, through the continental ports, to London 
 or Havre, would seem to be proper; whereas, if' the 
 protest were in the summer, the direct route by water 
 between St. Petersburg and America might be more 
 expedient and satisfactory. So, if a Bill be protested 
 in China or India, the mode of giving notice must vary 
 according to circumstances, and sometimes be direct 
 by water between that and the foreign • country, to 
 which the notice is destined ; and sometimes be indi- 
 rect and overland ; and in each case, there will be a 
 just compliance with the requisitions of the law. So, 
 if, by reason of war or other political occurrences, the 
 usual direct mode of communication be interdicted or 
 obstructed, any other suitable and reasonable mode 
 may be adopted.^ And, indeed, it would seem, that 
 
 1 See Mailman v. D'Eguino, 2 H. Black. 565 ; Darbishire v. Parker, 6 
 East, R. 3, 7 ; Bayley on Bills, ch. 7, § 2, p. 279 (5th edit. 1830.) 
 
 2 Chilty on Bills, ch. 9, p. 389 (8th edit. 1833) ; Id. ch. 9, p. 422 ; Id. 
 ch. 10, p. 485, 505, 510. 
 
CH. IX.] NON-ACCEPTANCE OF. 341 
 
 an omission to give due notice, iu consequence of an 
 accident, or casualty, or superior force, would, in all 
 cases, excuse the Holder from a strict compliance with 
 the general rule.' 
 
 § 287. Again. When the protest of a foreign Bill 
 takes place in one state or country, and notice thereof 
 is to be sent to another state or country, with which 
 ' the usual communication is by post or mail, by land, 
 as is customary among the nations of continental Eu- 
 rope, and is universal through the United States of 
 America, that mode of notice should be positively 
 adopted ; and, if omitted, might be fatal to the rights 
 of the Holder, unless under special circumstances.^ 
 
 § 288. And here the question often arises, How early, 
 after the dishonor, is the notice to be sent by post or 
 mail, when that is the proper and usual mode of giving 
 notice ? The answer is, by the next post or mail after 
 the day of the dishonor, if a reasonable time exists for 
 the purpose ; for it need not be sent by the post or 
 mail of the same day. Thus, if the post or mail leaves 
 the next day after the dishonor, the notice should be 
 sent by that post or mail, if the time of its closing or 
 departure is not at too early an hour to disable the 
 Holder from a reasonable performance of the duty.^ 
 
 ' Chitty on Bills, ch. 10, p. 485, 486, 524 (8th edit. 1833) ; Pothier de 
 Change, n. 144. See Hopkirk v. Page, 2 Brock. R. 200. 
 
 2 See Chitty on Bills, ch. 10, p. 504, 505 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, § 2, p. 278 to 281 (5th edit. 1830) ; Mnnn v. Baldwin, 6 
 Mass. R. 316 ; Lincoln and Kennebec Bank«. Hammatt, 9 Mass. R. 139; 
 Bnssard v. Levering, 6 Wheat. R. 102 ; Smith v. Hawthorne, 3 Rawle, 
 R. 355 ; Stanton v. Blossom, 14 Mass. R. 116. 
 
 3 See Darbishire v. Parker, 6 East, R. 3,8; Storken v. Collins, 9 Carr. 
 & Payne, 653 ; S. C. 7 Mees. & Welsh. 515 ; Howard v. Ives, 1 Hill, N. 
 Y. Rep. 263, 265 ; Haynes v. Birks, 3 Bos. & Pull. 599, 601 ; Eagle 
 Bank at New Haven v. Chapin, 3 Pick. E. 180 ; 3 Kent, Comm. Lect. 44, 
 
 29* 
 
342 BILLS OF EXCHANGE. [CH, IX. 
 
 So that the rule may be fairly stated in more general 
 terms to be, that the notice is, in all cases, to be sent 
 by the next practicable post or mail after the day of 
 the dishonor, having a due reference to all the circum- 
 stances of the case.^ If the dishonor and protest should 
 be on Saturday, it will be early enough to send the 
 notice by the post or mail of Monday, leaving out the 
 intermediate Sunday, which is not deemed a business ' 
 day.® 
 
 § 289. And here it may be proper to suggest another 
 circumstance, which may materially affect the consider- 
 ation of the time, within which notice should be given, 
 and that is, the fact, that the parties, to whom notice 
 is to be given, reside in or near the town or place 
 where the dishonor occurs. In such cases, it is not 
 unreasonable to require (and, accordingly, the rule is 
 so established,) that notice, whether given verbally, or 
 by a special messenger, or by the local post, (sometimes 
 called the penny-post,) should be given to the parties 
 upon the day of the dishonor, or, at farthest, upon the 
 succeeding day, early enough for it to be actually re- 
 ceived by them before the expiration of the same day.^ 
 Such cases are readily distinguishable from others, where 
 the parties reside at a distance, and the ordinary com- 
 
 p. 106, 107 (4th edit.) ; United States v. Barker's Admin'r, 4 Wash. Cir. 
 R. 464 ; S. C. 12 VV^heat. 559 ; Story, Prom. Notes, ^ 324. 
 
 1 See Post, § 289, and note ; Lennox v. Roberts, 2 Wheat. R. 373 ; 
 Carter v. Burley, 9 New Hamp. R. 556 ; Chick v. Pilsbury, 24 Maine R. 
 458. But see Robbins v. Pinckard, 5 Smedes & Marshall, R. 61. 
 
 2 Haynes u. Birks, 3 Bos. & Pull. 599, 601 ; Howard v. Ives, 1 Hill, 
 N. Y. Rep. 263 ; Wright v. Shawcross, 2 Barn. & Aid. 501, note ; Eagle 
 Bank of New Haven v. Chapin, 3 Pick. R. 180. 
 
 3 Chitty on Bills, ch. 10, p. 515, 516 (8th edit. 1833); Id. p. 540; 
 Tindal ii. Brown, 1 Term R. 167; Darbishire w. Parker, 6 East, R. 3, 
 S,9. 
 
CH. IX.] NON-ACCEPTANCE OF. 343 
 
 munication of notice is by the general post. Nor can 
 there be any inconvenience or hardship in requiring the 
 notice, in such cases, to be sent or given within the usual 
 hours of business, or, at least, within such reasonable 
 time, as may insure a delivery to the party on that very 
 day.' The time and place, when and where a demand 
 is to be made of the acceptance and payment of a Bill, 
 furnish a strong analogy to justify the enforcement of 
 the rule. In large cities, such as London and Liverpool, 
 and New York, the habits of business naturally suggest 
 a usage of this sort; and, from its convenience and cer- 
 tainty, it has been adopted as a positive rule, by the 
 Courts of Justice.*^ 
 
 1 Chitty on Bills, ch. 10, p. 583, 504 (8th edit. 1833.) 
 
 2 Ibid.; Smith w. MuUett, 2 Camp. R. 208. — Upon this subject, Mr. 
 Chitty sSys; " But there is a very tnaterial distinction in the time of giv- 
 ing or forwarding notice in cases, where the parties reside in or near to the 
 same town, and when notice may he readily given on the day after the dis- 
 honor, or notice of it, either verbally, or by special messenger, or by local 
 post, and cases, where the parties reside at a distance, and when the ordi- 
 nary mode of communication is by general post. Thus, when the parties 
 reside in the same town, the Holder, or other person to give the notice, 
 must, on the day after the dishonor, or on the day after he received the 
 notice, cause notice to be actually forwarded by the post or otherwise, to 
 his next immediate Indorser, sufficiently early in the day, that the latter 
 may actually receive the same before the expiration of that day ; and, there- 
 fore, in London, if a letter, containing such notice, be put into the post-office 
 after five o'clock in the afternoon of the second day, and, in consequence, 
 it is not received till the morning of the third day, the party, who ought to 
 have actually received the notice on the second day, will be discharged. In 
 London, the local post (usually termed the two-penny post) forward letters 
 to be delivered in the metropolis three times within the same day, namely, 
 at eight, two, and five o'clock ; and letters, put into any receiving house 
 before either of those hours, ought regularly to be delivered on the same 
 day. But, when out of the metropolis, and within ten miles, there are only 
 two deliveries in each day to and from the metropolis ; and a letter, put into 
 any proper office in London, before five o'clock in the afternoon, will be 
 delivered on the same day, at any place within such distance of ten miles ; 
 and a letter, put into a country office within that distance, before four 
 
344 BILLS OF EXCHANGE. [CH. *1X. 
 
 § 290. Again. When a foreign Bill is protested in 
 the same state or country, where any of the parties 
 live, who are to be charged therewith, the time of giv- 
 ing notice is susceptible of other modifications ; similar, 
 indeed, to those which ordinarily apply to cases of no- 
 tice of the dishonor of inland Bills and Promissory 
 Notes. In the first place, then, it is not, by our law, 
 necessary, in any case, to give notice, either by the 
 post or otherwise, on the very day on which the dis- 
 honor and protest take .place, although the Holder is 
 at liberty to do so at his option.' He is always allow- 
 ed, by law, a whole day for this purpose, and is not 
 compellable to lay aside all other business {omissis om- 
 nibus aliis negoUis), to devote himself to that particular 
 purpose. For it would be most inconvenient and un- 
 reasonable to require such strictness, as it might inter- 
 fere with other business and duties of quite as pfessitfg 
 an importance; and, therefore, it is sufficient, if he 
 sends notice by the post or otherwise the next day.^ 
 
 o'clock, ought properly to be delivered in London on the same day. The 
 Holder, or party forwarding the notice, may give it verbally, or he may 
 put a letter in the two-penny post, directed even to an Indorser, who 
 resits in the same street. If he send notice by a private hand^ it must be 
 given or left at the In4orser's residence before the expiration of the day ; if 
 to a banker, during the hours of business ; but to another'person the hour 
 is not material. If, by an irregularity in the post-offiee, a letteti put in in 
 due time, be not delivered till the third day, it should seem, that such 
 laches will not prejudice." Chitty on Bills, ch. 10, p. 515, 516 (8th edit. 
 1833.) 
 
 1 Chitty on Bills, ch. 10, p. 504, 510, 511, 513, 517 to 520 (8th edit. 
 1833) ; Bayley on Bills, ch. 7, § 2, p. 267 to 270 (5th edit. 1830) ; Bur- 
 bridge V. Manners, 3 Camp. R. 193 ; Ex parte Maline, 19 Ves. 216 ; 
 Tindal v. Brown, 1 Term R. 167, 1818 ; Bancroft v. Hall, 1 Holt,!^^. P. 
 Rep. 476; Darbishire v. Parker, 6 East, R. 3, 8, 9; Lindeflberger. «. 
 Beall, 6 Wheat. R. 104 ; S Kent Coram. Lect. 44, p. 106 to 108 (4th 
 edit.) 
 
 3 Ibid. ; Scott v. LifTord, 9 East, R. 347 ; Smith v. MuUett, 2 Camp. R. 
 
CH. IX.] NON-ACOEPTANCB OF. 345 
 
 § 291. Other modifications of the time of notice may 
 arise in cases where personal, or verbal, or even writ- 
 
 208 ; Stocken v. Collins, 9 Carr. & Payrte, 653 ; S. C. 7 Mees. & Welsh. 
 515; 3 Kent, Comm. Leet. 44, p. 106, 107 (4th edit.) — Mr. Chitty, 
 whose practical experience on this subject deserves great attention, says ; 
 " If notice of the non-payment of a foreign Bill is to be given to a person 
 in this country, the time of giving it would, it should seem, be governed 
 by the rules and practice applicable to inland Bills and notes. But if the 
 notice is to be forwarded to a Drawer or Indorser abroad, then it will be 
 safest, if it be sent by the very next regular post or ordinary conveyance. 
 It has, indeed, been said, that notic» ought to be forwarded on the very day 
 of refusal, if anypost orordinary conveyance sets out on that day ; and if 
 not, then by the next earliest ordinary conveyance. And, unquestionably, 
 if such expedition can be effected, it is advisable to send off notice by the 
 foreign post of the same day, especially, if there should be no foreign post 
 to the same place for s'ome considerable time afterwards. But, if the 
 reasoning in some of the cases on inland Bills be not inapplicable, it should 
 seem, that there is no legal necessity for a Holder, omissis omnibus aliis 
 negotiis, to devote himself in such hurry, to the causing protest to be made, 
 and forwarding notice by post of the same day, in every case;" Chitty on 
 Bills, ch. 10, p. 510 (8th edit. 1833.) He afterwards adds ; " It is settled, 
 that it is never necessary to give or forward notice of the non-payment on 
 the same day, when a Bill or note falls due, whether the instrument was 
 circulated only in London, or in the cogntry, and whether or not the 
 Drawer or Indorsers reside in the same town, where the dishonor took 
 place, and this without regard to the nearness of residence ; or, whether or 
 not the Holder might readily have given the notice, or put a letter in the 
 post on that day ; or, whether or not a post goes out from the place of 
 dishonor on the same day, or not until or after the third day. In all tttese 
 cases, it suffices to cause notice to be received on the next day, by the pre- 
 ceding Indorser,'\vhen resident in or near the same place. And, where the 
 parties do not reside in or near the place of the dishonor, it sufSces to for- 
 ward notice by the general post, that goes outon the day after the refusal, 
 or, if there be no post on that day, then on the third day, though thereby 
 the Drawer or Indorser may not, in fact receive notice till the third day, 
 or sometimes, according to the coufse of the post, not until the fourth, or 
 'even subsequent day. The reason why it has been decided, that it shall 
 in no case be necessary to give notice on the day of the dishonor or on the 
 same ^ay, when an Indorser receives notice, although the Indorser may 
 even live in* the same street as the Holder, and although the post may go 
 out on the same day, and not on the next, is, to^ prevent nice and difficult 
 inquiries, whether or not, in this or that particular case, the Holder could 
 conveniently have given notice on the same day, or whether the pressure of 
 
346 BILLS OP EXCHANGE. [CH. 
 
 IX. 
 
 \ 
 
 ten notice is to be given to a party, who is resident in 
 or near the same town, where the dishonor takes place. 
 
 other business did not prevent him from so doing, the affirmative or nega- 
 tive of which might be in the knowfledge only of the Holder himself, or 
 might become a very critical inquiry, and be very difficult and uncertain in 
 legal proof. Another reason is, that the Holder ought not to be required, 
 omissis omnibus aliis negotiis, to occupy himself immediately in forwarding 
 notice to the prior parties, when, by delaying that step till the next morn- 
 ing, he would, after the press of other business had subsided, have, in the 
 evening, or early the next morning, before his general business commences, 
 time to l&ok into his accounts with the other parties, and to consider his 
 best steps to obtain payment from them, and to ascertain their precise resi- 
 dences, and to prepare and forward, either by hand, or by such next day's 
 post, a proper notice to all the parties, against whom he means to proceed 
 to enforce payment. But the rule is now well settled, that the Holder 
 must, in order to subject all the parties to actions at his suit, give or for- 
 ward all his notices to every one of the Indorsers, and to the Drawer, 
 whose residences he can ascertain, on the day after the Bill or note was 
 dishonored ; and, if he omit to give or. forward such direct and distinct 
 notice to each, he may be deprived of all remedy against the omitted party, 
 unless some other party to the Bill has given him notice of the dishonor in 
 due time, in which case, such latter notice will enure to the benefit of any 
 Holder. Formerly, indeed, it seems, that, vphen notice was to be given by 
 the general post, it was considered, that a party ought, to forward it on the 
 same day he had received it, if there was a reasonable time, as a few 
 hours, between the receipt of the notice and the going out of the post from 
 the same place. Thus, Mr. Justice Lawrence said ; ' The general rule, as 
 collected from the cases, seems to be, with respect to persons living in the 
 same town, that the notice shall be given by the next day; and with 
 regard to such as live at different j)laces, that it should be sent by the next 
 post (that is, the post on the very day of receiving it) ; but, that, if, in any 
 particular place, the post should go out so early after the receipt of the 
 intelligence, as that it would be inconvenient to require a strict adherence to 
 such general rule, then, with respect to a case so circumstanced, it would 
 not be reasonable to require the notice to be sent till the second post.' But 
 the inquiry into circumstances, whether or not the notice might readily 
 have been forwarded by the post of the same day, having been found incon- 
 venient, the rule was afterwards settled, so as always to exclude the neces- 
 sity of forwarding notice until the day after a party has himself received 
 notice; and, therefore, Lord Tenterden, long after the above dictum of 
 Lawrence, J.,. said ; ' The time, within which notice of the dishonor of a 
 Bill must be given, I have always understood to be the departure of the 
 
CH. IX.] NON-ACCEPTANCE OF. 347 
 
 otherwise than by the general post; and these may 
 respect the hours, within which the notice should be 
 given. And here, also, the general rule is, that the no- 
 tice should be given within reasonable hours. If given 
 at the domicil or dwelling-house of the party, it should 
 be at such an hour as that the family may be up ; for, 
 if left after the usual hour of retirement, it will be too 
 
 post on the day following that in which the party receives the intelligence 
 of the dishonor.' " Chitty on Bills, ch. 10, p. 513 to 515 (8th edit. 1833.) 
 And again, Mr. Chitty says; "When the parties do not reside in the 
 same place, and the notice is to be sent by the general post, then the Holder 
 or party, to give the notice, must take care to forward notice by the post 
 of the next day after the dishonor, or after he received notice of such dis- 
 honor, whether that post sets off from the place, where he is, early or late ; 
 and, if there be no post on such next day, then he must send off notice by 
 the very next post, that occurs after that day; but he is not legally bound, 
 on account of there being no post on the day after he receives notice, to 
 forward it on the very day he receives it." Chitty on Bills, ch. 10, p. 517, 
 518. It appears to me, that the rule is not so strict as it is laid down in 
 this last passage of Mr. Chitty ; and that it would be more correct to say, 
 that the Holder is entitled to one whole day, to prepare his notice, and that, 
 therefore, it will be sufficient, if he sends it by the next post, that goes after 
 twenty-four hours from the time of the dishonor. Thus, suppose the dis- 
 honor is at four o'clock P. M. on Monday, and the post leaves on Tues- 
 day, at nine or ten o'clock, it seems to me, that the Holder need not send 
 by that post, but may safely wait, and put the notice into the post-offiee 
 early enough to go by the post on Wednesday morning, at the same hour. 
 I have seen no late case, which imports a different doctrine ; on the con- 
 trary, they appear to me to sustain it. But, as I do not know of any direct 
 authority, which positively so decides, this remark is merely propounded 
 for the consideration of the learned reader. See 3 Kent, Comm. Lect. 44, 
 p. 105, 106 (4th edit.) ; Scott v. LifFord, 9 East, E. 347 ; Geill v. Jeremy, 
 1 Mood. & Malk. 61 ; Williams v. Smith, 2 Barn. & Aid. 496 ; Williams 
 V. Shawcross, 3 Barn. & Aid. 501, note ; Darbishire v. Parker, 6 East, 
 R. 3, 8 ; Hawkes v. Salter, 4 Bing. R. 715 ; Whitwell v. Johnson, 17 
 Mass. K. 449; Mead v. Engs, 5 Cowen, R. 303 ; Bray v. Hadwen, 5 M. 
 & Selw. 68 ; Smith v. MuUett, 2 Camp. R. 208 ; Jameson v. Swinton, 3 
 Taunt. 224 ; Bayley on Bills, ch. 7, § 3, p. 269, 270 (5th edit. 1830.) 
 But see Bank of Alexandria v. Swann, 9 Peters, R. 33 ; Mead v. Engs, 5 
 Cow. R. 307 ; Howard v. Ives, 1 Hill, N. Y. Rep. 263, 265 ; Chick v. 
 Pilsbury, 24 Maine R. 458, 
 
348 BILLS OF EXCHANGE. [CH. IX. 
 
 late. If given at the place of business of the party, as 
 at his counting-house or store, it should be within the 
 usual hours of business.^ For, in all cases of this sort, 
 where the notice is to be given on a particular day, it 
 should be given at such an hour, that it may be reason- 
 ably received on the same day.~ 
 
 § 291 a. But, in the next place, it may, and often 
 does, become necessary for other parties^ besides the 
 immediate Holder, to give notice of the dishonor, to 
 other antecedent parties upon the Bill, who may be 
 liable to repay the amount to them, if they should be 
 
 > Chitty on Bills, ch. 7, p. 305 (8th edit. 1833) ; Id. ch. 10, p. 503, 
 515, 516 ; Bayley on Bills, ch. 7, § 1, p. 224 to 226 (5th edit. 1830) ; Id. 
 § 2, p. 276 ; Crosse v. Smith, 1 M. & Selw. 545; Bancroft v. Hall, 1 
 Holt, N. P. R. 476 ; Parker v. Gordon, 7 East, R. 385 ; Henry v. Lee, 
 2 Chitty, R. 124 ; Garnett v. Woodeogk, 6 Maule & Selw. 44 ; Cayuga 
 County Bank v. Hunt, 2 Hill, N. Y. R. 635 ; Allen v. Edmondson, 2 
 Welsby, Hurlstone & Gordon, 719 ; S. C. 2 Carrington & Kirwan, 547. 
 
 2 Ibid. — Mr. Chitty, on this subject, says; "As the giving notice of 
 non-payment is not a mere form or ceremony, like that of protest, it ought, 
 obviously, if practicable, to be so given as to be actually received ; and 
 though, when considering the mode of giving notice, we have seen, that it 
 is not absolutely necessary to leave a written notice,'and that it suffices to 
 make a verbal application during the usual hours of business ; yet, it is 
 recommended to leave a written notice, when an actual notice cannot be 
 personally communicated to the party himself. In some cases, where the 
 Indorser's residence is unknown, but he is known to resort, during certain 
 hours, at a certain place, as at the Royal Exchange, the Bank of England, 
 Corn Exchange, or any public office, the notice ought to be given during 
 those hours ; and to bankers, who are known to shut up their place of 
 business at a certain hour, notice ought to be given there before that hour ; 
 though, if a person be stationed there to transact business after that time, 
 notice to him would suffice. In other cases, notice, or application to give 
 notice, at any reasonable time, (not during the hours of rest,) as between 
 eight and nine in the evening, would suffice. Sending notice by a mes- 
 senger, instead of the post, although he do not arrive quite so early as the 
 post, will not prejudice, provided he deliver the notice on the same day, as 
 that on which it would have arrived by the post." Chitty on Bills, ch. 10, 
 p. 516, 517 (8th edit. 1833.) See also Id. ch. 9, p. 421, 422. 
 
CH. IX.J NON-ACCEPTANCE OF. 349 
 
 called upon to pay, and should punctually pay, the 
 Bill. Thus, if an Indorser upon the Bill should re- 
 ceive due notice of the dishonor, it may be indispen- 
 sable, in many cases, in order to entitle him to charge 
 an antecedent Indorser, that he should give him notice 
 thereof. And the question then arises, Within v^hat 
 time such notice should be sent ? The true answer is, 
 within a reasonable time ; and, in the ordinary course of 
 things, it is deemed sufficient, if sent by the next post 
 after tvrenty-four hours have elapsed since his own re- 
 ceipt of the notice of the dishonor.' For the general 
 rule is, that every successive Indorser, who receives 
 notice of the dishonor of a Bill, is entitled to, at least, 
 one full day after he has received the notice, before he 
 is required to give notice of the dishonor to any ante- 
 cedent Indorser, who is chargeable over to him upon 
 payment, of the Bill.^ In this respect he is, in gene- 
 
 1 Ante, ^ 239, 285, 288; Bayley on Bills, ch. 7, § 2, p. 267, 268 (5th 
 edit. 1830) ; Chitty on Bills, ch. 10, p. 510, 513, 520, 521 (8th edit. 1833); 
 Smith V. Mullet, 2 Camp. E. 208; Bray v. Hadvven, 5 Maule & Selw. 
 68 ; Wright v. Shawcross, 2 Barn. & Aid. 501, and note ; Lenox v. 
 Roberts, 2 V^heat. R. 373 ; Hawkes v. Salter, 4 Bing. R. 715 ; Carter v. 
 Burley, 9 New Hamp. R. 556, 
 
 2 Ibid. ; Jameson v. Swinton,2 Taunt. R. 224 ; Geill v. Jeremy, I Mood. 
 & Malk. 61. — Mr. Bayley has given the following summary, deduced 
 from the cases, which may serve as a brief exposition of the general doc- 
 trine. " To such of the parties as reside in the place, where the present- 
 ment was made, the notice must be given, at the farthest, by the expira- 
 tion of the day following the refusal ; to those, who reside elsewhere, by 
 the post of that or the next post day. Each party has a day for giving 
 notice. And he is entitled to the whole day ; at least, eight or nine 
 o'clock at night is not too late. He will be entitled to the whole day, 
 though the post, by which he is to send it, goes out within the day ; and 
 though there be no post the succeeding day for the place, to which he is to 
 send. Therefore, where the notice is to be sent by the post, it will be 
 sufficient, if it be sent by the post of the following day , or, if there be no 
 post the following day, the day after.'' Bayley on Bills, ch. 7, ^ 2, p. 
 268, 270 (5th edit. 1830) ; 3 Kent, Coram. Lect. 44, p. 107, 108 (4th 
 edit.) 
 
 B. OF EX. 30 
 
350 BILLS OF EXCHANGE. [CH. 
 
 IX. 
 
 ral, entitled to stand upon the same rights, and to per- 
 form the same duties as the original Holder.' And it 
 will make no difference, that all the parties, to whom 
 notice is successively given, reside in the same town ; 
 for each party, so receiving notice, will be entitled to a 
 fiiU day to give notice to the antecedent parties,® But 
 each party receiving notice, is limited as to the time of 
 his giving notice to the other parties to a day after he 
 receives it, notwithstanding he may have received his 
 own notice earlier than the law positively required ; as, 
 for example, if he received notice by mail, or otherwise, 
 on the day of the dishonor, and not on the day after 
 the dishonor (which would have been sufficiently early,) 
 he will be limited in giving notice to the other party to 
 one day after he so received notice on the day of the 
 dishonor.^ 
 
 § 292. The benefit of this rule is not confined to a 
 mere Holder for value. But, if the Bill has been trans- 
 mitted to an agent or banker, for the purpose of pro- 
 curing the acceptance or payment of the Bill, he will 
 be entitled to the same time, to give notice to his prin- 
 cipal or customer, and to the other parties to the Bill, 
 as if he were himself the real Holder, and his principal 
 or customer were the party next entitled to notice j and 
 the principal or customer will be entitled, after such 
 notice, to the like time, to communicate notice to the 
 antecedent parties, as if he received the notice from the 
 real Holder, and not from his banker or agent.^ In 
 
 ^ Ibid. ; Pardessus, Droit Coram. Tom. 2, art. 442 to 444. 
 
 2 Chitty on Bills, ch. 10, p. 520 to 522 (8th edit. 1833) ; Hilton v. 
 Shepherd, 6 East, R. 14, note ; Smith v. MuUett, 2 Camp. R. 208 ; Scott 
 V. Lifford, 9 East, R. 347. 
 
 3 Carter v. Burley, 9 New Hamp. R. 556. 
 
 4 Bayley on Bills, ch. 7, § 2, p. 272, 273 (5th edit. 1830) ; Chitty on 
 Bills, ch. 10, p. 521, 522 (8th edit. 1833); Haynes w. Birks, 3 Bos. & 
 
CH. IX.] NON-ACCEPTANCE OF. 351 
 
 short, in all such cases, the banker or agent is treated 
 as a distinct Holder.^ 
 
 § 293. In the next place, the general rule is affected 
 by other modifications, arising from the religious ob- 
 servances of the particular sect, to which the Holder, or 
 other party, belongs, and by the laws and ordinances, 
 and usages, and the religious festivals and fasts of the 
 particular country. Thus, if the day, on which notice of 
 the dishonor should ordinarily be given, should happen 
 to fall on Sunday, or on Christmas day, or on any other 
 holyday, or on any day set apart by public authority or 
 usage for a solemn fast or thanksgiving, or consecrated 
 to purposes not secular, or on any other day, which, ac- 
 cording to the religion of the Holder, or other party, is 
 required to be devoted to religious purposes (such as 
 Saturday, in the case of the Jews) ; ® in all such cases, 
 the party will be entitled to the same indulgence, as to 
 his giving notice, as if no such day had intervened. In 
 other words, such non-secular day is struck out of the 
 calculation of the time ; and the notice is sufficiently 
 early, if duly sent on the next succeeding secular day.^ 
 
 Pull. 599 ; Scott v. LifFord, 9 East, R. 347 ; Langdale v. Trimmer, 15 East, 
 R. 291 ; Howard v. Ives, 1 Hill, N. Y. Rep. 263 ; Coll v. Noble, 5 Mass. 
 R. 167 ; Church v. Batlow, 9 Pick. 547, 549 ; U. States Bank v. Goddard, 
 5 Mason, R. 366 ; Mead v. Engs, 5 Cowen, R. 303 ; 3 Kent, Comm. Lect. 
 44, p. 108 (4th edit.) 
 
 1 Ibid. 
 
 2 Ibid. 
 
 3 Bayley on Bills, eh. 7, § 3, p. 2.71 to 273 (5th edit. 1830) ; Chitty on 
 Bills, eh. 9, p. 403, 410, 411 (8th edit. 1833) ; Id. ch. 10, p. 506 to 514 ; 
 Id. p. 519, 520 ; Smith v. Mullett, 2 Camp. R. 208 ; Geill v. Jeremy, 1 
 Mood. & Malk. 61 ; Bray v. Hadwen, 5 M. & Selw. 68 ; Wright v. Shaw- 
 cross, 2 Barn. & Aid. 501, note; Hawkes w. Salter, 4 Bing. R. 715; 
 Haynes v. Birks, 3 Bos. & Pull. 599 ; Sobtt v. Lifford, 9 East, 347 ; 
 Williams v. Smith, 2 Barn. & Aid. 496 ; Ante, § 233 ; Lindo v. Uns- 
 worth, 2 Camp. R. 602 ; Cuyler v. Stevens, 4 Wend. R. 566 ; Eagle 
 
352 BILLS OP EXCHANGE. [CH. IX, 
 
 If, therefore, the dishonor takes place on Saturday, the 
 Holder will have until the next Monday to give notice ; 
 and notice on any part of that day will be sufficient. 
 So, if an Indorser receives notice from the Holder, on 
 Saturday, it will be sufficient for him to give the like 
 notice to any prior Indorser on the next Monday. And 
 
 Bank of New Haven v. Chapin, 3 Pick. R. 183. — Here, again, Mr. Bay- 
 ley's summary may well be quoted ; " Where a party receives notice on a 
 Sunday, he is in the same situation, as if it did not reach him till the 
 Monday ; he is not bound to pay it any attention till the Monday ; and has 
 the whole of Monday for the purpose. So, if the day, on which notice 
 ought thus to be given, be a day of public rest, as Christmas day, or Good 
 Friday, or any day appointed by proclamation for a solemn fast or thanks- 
 giving, the notice need not be given until the following day. And it has 
 been held, that, where a man is of a religion, which gives to any other 
 day of the week the sanctity of Sunday, as in the case of Jews, he is en- 
 titled lo the same indulgence as to that day. Where Christmas day, or 
 such day of faster thanksgiving, shall be on a Monday, notice of the dis- 
 honor of Bills or notes, due or payable the Saturday preceding, need not 
 be given until the Tuesday. And Good Friday, Christmas day, and any 
 day of fast or thanksgiving, shall, from 10th April, 1827, as far as regards 
 Bills and notes, be treated and considered as Sunday. But these pro- 
 visions do not apply to Scotland." Bayley on Bills, ch. 7, § 2, p. 271, 
 272 (5th edit. 1830.) Mr. Chitty says: "The Statute of 7 and 8 Geo. 
 IV., ch. 16, provides, that when a Bill or note would be payable, under 
 the Statute of 39 and 40 Geo. IH, ch. 42, or otherwise, on the day pre- 
 ceding Good Friday, or Christmas day, it shall not be necessary to give 
 notice of the dishonor thereof, until the day after such Good Friday, or 
 Christmas day; and that when Christmas day falls on a Monday, it 
 shall not be necessary to give notice of the dishonor of a Bill due on the 
 preceding Saturday, before the Tuesday following such Christmas day ; 
 and that, when Bills or notes shall fall due upon days appointed by pro- 
 clamation for solemn fasts, or days of thanksgiving, or upon the day next 
 preceding the same, the Bills shall be payable the day before such pro- 
 claimed day, and may, in case of non-payment, be noted and protested on 
 such preceding day ; and that it shall not be necessary to give notice of 
 the dishonor, until the day after such proclaimed day, and that Good 
 Friday, or Christmas day, and every such fast or thanksgiving day, 
 shall, as relates to Bills and notes, be considered as a.' Sunday. But 
 these regulations do not extend to Scotland." Chitty on Bills, ch. 10, 
 p. 511 (8th edit. 1833.) 
 
OH. IX.] NON-ACCEPTANCE OF. 353 
 
 on the other hand, if he receives notice of the dishonor 
 on Sunday, he is at liberty to treat it, as if received on 
 the next Monday, and the notice, to be given by him 
 to any prior Indorser, will be sufficiently early if given 
 on Tuesday.' 
 
 § 294. Where there are numerous parties in succes- 
 sion on the Bill, as Drawers or Indofsers, who are 
 entitled to notice, and may, as Drawers or Indorsers, 
 be liable, on the dishonor of the Bill, not only to the 
 Holder, but to any intermediate Indorser, standing be- 
 tween him and themselves, it is apparent, that, as each 
 of such successive parties is entitled to a full day to 
 give notice to any antecedent party on the Bill, several 
 days may elapse without any laches in any party, 
 between the time of the dishonor, and the time of 
 notice thereof to the Drawer, or the other early Indors- 
 ers.^ Nay, this may occur in respect to parties, all of 
 whom reside in the same town ; and yet, if the notice 
 is communicated to them in regular succession, making 
 an allowance of one day for each party who receives 
 notice, to give notice to the antecedent parties, they 
 will all be held liable, and the notice be deemed suffi- 
 cient to bind them.^ Thus, if there should be ten suc- 
 cessive Indorsers on the Bill, the last of whom shall 
 receive notice of the dishonor from the Holder, it will 
 be sufficient for him, on the next day, to communicate 
 notice thereof to the next antecedent Indorser, and he 
 
 » Ibid. 
 
 2 Chitty on Bills, ch. 10, p. 520 to 523 (8th edit. 1833) ; Ante, § 289 
 to 291 ; Carter v. Burley, 9 New Hamp. R. 556 ; Ante, § 382, ^ 384. 
 
 3 Chitty on Bills, ch. 10, p. 520, 522, 523 (8th edit. 1833); Smith v. 
 MuUett, 2 Camp. R. 208 ; Dobree v. Eastwood, 2 Carr. & Payne, 250; 
 Carter v. Burley, 9 New Hamp. R. 556 ; Ething v. Schuylkill Bank, 
 2 Barr, R. 355 ; Ante, § 382, ^ 384. 
 
 30* 
 
354 BILLS OF EXCHANGE. [CH. IX. 
 
 to the next, and so on ; and thus, in particular cases, 
 ten or more days may elapse before the notice reaches 
 the first Indorser. Yet, in such a case, the first In- 
 dorser will be liable to pay the Bill, although the Holder 
 has given notice only to the last Indorser on the Bill, 
 and he only to the next antecedent Indorser, and so on 
 to the first Indorser.' But, if any one of these Indorsers 
 should miss a day in duly giving or forwarding notice, 
 without any legal excuse for the omission, a link in the 
 regular chain will be broken ; and all the prior parties, 
 unless they have received notice from some one of the 
 other parties on the Bill, to whom such Indorser is 
 liable, will be discharged from .payment of the Bill.^ 
 The Holder (and the same thing is true as to each suc- 
 cessive Indorser) may, when it has been dishonored, 
 either resort to his immediate Indorser, and then he 
 must give him notice within the proper time, or he may 
 resort to any, or all, of the other Indorsers, in which 
 case he must give them notice respectively, in the 
 same manner as if each were the sole Indorser ; for the 
 
 1 Ibid. 
 
 s Chitty on Bills, ch. 10, p. 622, 523 (8th edit. 1833) ; Dobree v. East- 
 wood, 3 Catr. & Payne, 250 ; Marsh v. Maxwell, 2 Camp. R. 210, note ; 
 Turner v. Leach, 4 ]3arn. & Aid. 451 ; Bayley on Bills, ch. 7, § 2, p. 255 
 (5th edit. 1830) ; Id. p. 275 ; Pothier de Change, n. 148, 152, 153. — 
 Mr. Bayley says: " It is no excuse for not giving notice the next day 
 after a party receives one, that he received his notice earlier than the 
 preceding parties were bound to give it ; and that he gave notice within 
 what would have been proper time if each preceding party had taken all 
 the time the law allowed him. The time is to be calculated according to 
 the period, when the party in fact received his notice. Nor is it any 
 excuse, that there are several intervening parties between him who gives 
 the notice and the defendant, to whom it is given ; and that if the notice 
 had been communicated through those intervening parties, and each had 
 taken the time the law allows, the defendant would not have had the notice 
 sooner." Bayley on Bills, ch. 7, ^ 2, p. 275 ; Id. p. 255 (5th edit. 1830). 
 
CH. IX.] NON-ACCEPTANCE OF. 355 
 
 Holder is' not entitled to as many days to give notice, 
 as there are prior Indorsers ; but eacli Indorser has his 
 own day.^ It', therefore, there are five Indorsers, and 
 the Holder should not give notice to the first Indorser 
 until five days, that will be too late ; and, unless some 
 subsequent Indorser has given him notice in due time, 
 who has himself received due notice, such first Indorser 
 will be discharged from all liability to the Holder.^ In 
 this respect, the French law seems to be in entire con- 
 formity to ours.^ 
 
 § 295. Hitherto we have mainly spoken of the time 
 of giving notice by means of the general post, or by 
 regular packets, or by some other regular conveyance, 
 where the parties reside at a distance, or in a foreign 
 .country. But there is nothing in the rules of law, 
 which prevents notice in any case from being given by 
 a private messenger, if the Holder should elect so to 
 do, and is willing to run the chance of this hazardous 
 mode of giving notice. If he does so elect, and thus 
 supersede the ordinary and regular mode of giving 
 notice by the general post, or otherwise, it is indis- 
 pensable, that the notice should reach the party, for 
 
 1 Bay ley on Bills, ch. 7, § 2, p. 275 (5th edit. 1830) ; Chitty on Bills, 
 eh. 10, p. 522 (8th edit. 1833) ; Dobree v. Eastwood, 3 Carr. & Payne, 
 250 ; Marsh v. Maxwell, 2 Camp. R. 210 ; Turner v. Leech, 4 Barn. & 
 Aid. 451. 
 
 9 Bayley on Bills, ch. 7, § 2, p. 275 (5th edit. 1830) ; Chitty on Bills, 
 ch. 10, p. 522, 527 (Bth.edit. 1833) ; Marsh v. Maxwell, 2 Camp. R. 210 ; 
 Dobree v. Eastwood, 3 Carr. & Payne, R. 250 ; Turner v. Leech, 4 Barn. 
 & Aid. 451 ; U. States Bank v. Goddard, 5 Mason, R. 366. — The reason 
 of the exception, where notice has been given by a subsequent Indorser, 
 will appear, when we come td examine, by whom notice is to be given. 
 See Post, § 303. 
 
 3 Pardessus, Droit Coram. Tom. 2, art. 429, 430 ; Chitty on Bills, ch. 
 10, p. 523, note (a). See Code de Coram, art. 165 ; Pothier de Change, 
 n. 148, 153, 153. 
 
356 BILLS OP EXCHANGE. [CH. IX. 
 
 whom it is designed, on the same day (although not, 
 perhaps, at as early an hour) as he would otherwise be 
 entitled to receive it ; for, if it arrive a day later, the 
 party will be discharged.^ Cases, indeed, may exist, 
 in which notice by a special messenger may be most 
 reasonable and proper (and then his expenses must be 
 borne by the party who receives the notice) ; as, for 
 example, where the party resides at a distance from 
 any post-town, or there is no regular or speedy com- 
 munication with his place of residence.^ It does not 
 seem, however, that, in any case, it is necessary to send 
 notice by a special messenger, if there be a regular 
 mode of giving it by the post or otherwise, even if 
 thereby the notice might have arrived earlier.' 
 
 § 296. We have already seen, that the time of giving 
 notice of the dishonor of a foreign Bill of Exchange is 
 governed by the law of the place where the contract is 
 entered into, and not by the law of the place where the 
 protest is made.* And this time is variously regulated 
 
 1 Chitty on Bills, ch. 10, p. 504, 505, 518, 519 (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 7, § 2, p. 279, 280 (5th edit. 1830) ; Darbishire v. Parker, 
 
 6 East, R. 8, 9 : Pearson v. Cranlan, 2 Smith, R. 404 ; Bancroft v. Hall, 
 1 Holt, R. 476 ; Ante, § 290, note ; 3 Kent, Comm. Lect. 44, p. 106, 107 
 (4th edit.) ; Jarvis v. St. Croix, Manuf. Co. 23 Maine R. 287. 
 
 2 Chitty on Bills ch. 10, p. 504, 505, 518, 519 (8th edit. 1833) ; Pear- 
 son V. Cranlan, 2 Smith, R. 404. 
 
 3 Chitty on Bills, ch. 10, p. 503, 505, 518, 519 (8th edit. 1833) ; Mail- 
 man V. D.'Eguino, 2 H. Black. K. 565 ; Darbishire v. Parker, 6 East, R. 
 
 7 ; Bank of Columbia v. Lawrence, 1 Peters, R. 582, 584 ; Kuf «. Wes- 
 ton, 3 Esp. R. 64. But see Hordetn v. Dalton, 1 Carr. & Payne, 181 ; 
 Story, Promiss. Notes, § 340. 
 
 4 Ante, § 176, 177, note, § 285 ; Chitty on Bills, ch. 10, p. 506 to 508 
 (8th edit. 1833) ; Aymaru. Sheldon, 12 Wend. R. 439; Wallace «. Agry, 
 4 Mason, R. 336, 344. But see Rothschild v. Currie, 1 Adolph. & Ellis, 
 New R. 43, which is contra. — This was the case of a Bill drawn in Eng- 
 land on, and accepted by, a house in France, payable at Paris, in favor of 
 a Payee domiciled in England, by whom it was indorsed, in England, to 
 
CH. IX.] NON-ACCEPTANCE OP. ' 357 
 
 in different countries. In France, particular periods are 
 prescribed, within which notice of non-acceptance, as 
 
 an Indorsee, who was also domiciled there. The Bill was dishonored at 
 maturity, and due notice was given to the Payee of the protest and dis- 
 honor, according to the law of France ; but not (as it was suggested) ac- 
 cording to the law of England ; and it was held, by the Court, in a suit 
 brought by the Indorsee against the Payee, that the notice was good, being 
 according to the law of France, the Lex loci contractus of acceptance. 
 For this doctrine, reliance was mainly placed upon the text of Pothier de 
 Change, n. 155. The language of Pothier is, that the form of the pro- 
 test, the time of making it, and the notice of it, are to be regulated by the 
 law of the place where the Bill of Exchange is payable. In respect to 
 the form of the protest, he says, there is no doubt ; for it is a general rule, 
 that, in respect to the formalities of acts, we are to follow the law and 
 style of the place, where the act is done. He then adds, that the same 
 thing applies in respect to the time, within which the protest ought to be 
 notified ; for the Bill of Exchange is to be deemed contracted in the place 
 where it is payable, according to the rule, Contraxisse unusquisque in eo 
 loco inteliigitur, in quo ut solveret, se obligavit ; and, consequently, the 
 obligations of it ought to be governed by the laws and usages of the same 
 place, to which the parties must be presumed to have submitted themselves 
 according to another rule : In contractibus veniunt ea, quae sunt moris et 
 consuetudinis in regione, in qua contrahitur. Now, so far as regards the ' 
 formalities of the protest, and the time of making it, there is no doubt 
 whatsoever, that the rule is universallj! adopted in the commercial world, 
 that they are to be according to the law of the place where the accept- 
 ance and payment of the Bill are to be made. Chitty on Bills, ch. 10, p. 
 490 (8th edit. 1833.) But the doctrine of Pothier is supposed to go much 
 farther ; and, if it does, and extends to the case of notice to Indorsers, 
 who have indorsed the Bill in a foreign country, (upon which, it seems to 
 me, there may be room for doubt,) his reasoning in support of it is founded 
 upon a false foundation ; and the maxim cited by him, Contraxisse, &c., 
 would lead to the opposite conclusion. The Acceptor agrees to pay in 
 the place of acceptance, or the place fixed for the payment (Cooper v. 
 Earl of Waldegrave, 2 Beavan, E. ,282) ; but, upon his default, the 
 Drawer and the Indorser do not agree, upon due protest and notice, to pay 
 the like amount in the same place ; but agree to pay the like amount in 
 the place where the Bill was drawn or indorsed by them respectively. 
 Hence it is, that the notice, to be given to each of them, must and ought 
 to be notice, according to the law of the place where he draws or indorses 
 the Bill, as a part of the obligations thereof. The Drawer and Indorser, 
 in effect, contract in the place where the Bill is drawn, or indorsed, a 
 conditional obligation, that is, if the Bill is dishonored, and due notice is 
 
358 BILLS OP EXCHANGE. [CH. IX. 
 
 well as of non-payment of a Bill should be given, and 
 
 given to them of the dishonor, according to the law of the place of their 
 contract, they will respectively pay the amount of the Bill at that place. 
 The law of the place of the acceptance or payment of the Bill has 
 nothing to do with their contract ; for it is not made there, and has no 
 reference to it. The maxim, Contraxisse, &c., in truth, has no just appli- 
 cation to such a case. It properly applies to the case where the same 
 person, by a contract made in one place, promises to pay money in 
 another place. But, if it is to have any application to the case of a 
 Drawer or an Indorser of a Bill, it must be to make the other maxim 
 apply : In contractibus veniunt ea, quae sunt moris et consuetudinis in re- 
 gione, in qua contrahitur. Pardessus lays down the rule in its true sense ; 
 and insists upon the distinction between the cases of the contract of the 
 Acceptor, and the contract of the Drawer and Indorser. The contract of 
 the Acceptor is a contract made in the place of acceptance, and governed 
 by the law of that place. But the contract of the Drawer is a contract 
 made in the place where it is drawn, and of the Indorser, a contract in 
 the place where the indorsement is made, and governed by the law 
 thereof. Hence he says, that, if a Bill is drawn in Prance, where a pro- 
 test is required to prove the dishonor of a Bill, upon a foreign country, 
 where no protest is required, still the Drawer will not be bound, unless a 
 protest is duly made in the foreign country. Whether this doctrine be 
 strictly correct, or not, it shows, in a striking manner, the opinion of Par- 
 dessus upon the whole subject. He adds, what is most material to the ' 
 present purpose, that the Indorser is liable only in the same manner, and 
 under the same circumstances, as the Drawer would be ; that is, according 
 to the law of the plape of his contract ; and that all the obligations and 
 qualifications of it, imposed by the local law, are binding and operative 
 upon him. (Pardessus, Droit Comm. Tom. 5, art. 1488, 1497 to 1499, 
 p. 252 to 255, 280 to 287 ; Post, § 347.) And he expressly declares, that 
 every Indorser is to have notice, according to the law of the place of his 
 indorsement, since it is a part of the contract. (Id. art. 1485, 1499.) His 
 reasoning is at variance with that of the learned Judge, who delivered the 
 opinion of the Court in Rothschild v. Currie, (1 Adolph. & Ellis, New R. 
 43.) With the greatest deference for that learned Judge, it seems to me, 
 that the decision of the Court is not sustained by the reasoning on which 
 it purports to be founded. The Court there admit, that the notification of 
 the dishonor is parcel of the contract of the Indorser ; and, if so, then it 
 must be governed by the law of the place (England,) where the indorse- 
 ment was made, upon the very rules cited by the Court from Pothier. The 
 error (if it be such) seems to have arisen from confounding the contract of 
 the Acceptor with the contract of the Drawer and the Indorser. Mr. 
 Chitty takes the same view of the law which is taken in the text. Chitty 
 
CH. IX.] NON-ACCEPTANCE OF. 359 
 
 the shortest periods seetn to be fifteen days after the 
 dishonor and protest' 
 
 § 297. In the next place, in respect to the place, to 
 which the notice is to be sent. This, in general, is 
 
 on Bills, ch. 10, p. 490, 491, (8th edit. 1833) ; IJ. p. 506. The case of 
 Aymar K. Sheldon (12 Wend. R. 439,) seems also opposed to the doc- 
 trine in Rothschild v. Currie. See also 3 Surge, Comm. 773 ; 2 Kent, 
 Comm. 460, and note, (4th edit.); Astor v. Benn, 1 Stuart, Canada R. 
 69, 70 ; Wallace v. Agry, 4 Mason, R. 336-344 ; Pothier, n. 64, 67, as 
 to Reexchange ; Ante, ^ 285, 296 ; Post, ^ 366, 391. 
 
 1 Chitty on Bills, ch. 10, p. 506, 507 (8th edit. 1833.)— Mr. Chitty 
 gives the following summary statement of the French Law : " In France, 
 also, a protest for non-payment must not be made until the day after the 
 day when the Bill became due, that entire day being allowed by law to 
 the Drawee to prepare for, and make payment ; but it is otherwise with 
 respect to Bills payable at sight, when the terms of the Bill denote that 
 the party is to pay upon demand ; and, therefore, the protest may, in that 
 case, be made on the very day of presentment. If the day for making the 
 protest should fall on a Sunday, or legalized holyday, then the protest is 
 to be made on the day after it ; and, if the distance of parties, or other cir- 
 cumstances, occasion delay, a reasonable further time, on making the 
 protest, will not prejudice. A premature protest, would, no doubt, be un- 
 availing. In France,' also, the time, within which the notice of dishonor 
 must be given, differs materially from that required in England, and af- 
 fords more indulgence to the Holder. Thus, it tfiere suffices, if the pro- 
 test be notified within five days, reckoned from the date of the protest, 
 when the Drawer or Indorser resides within ^fifteen miles ; and, if the party 
 to whom the notice is to be given resides more than fifteen miles from the 
 place where the Bill was payable, the time is increased in proportion, and 
 according to such increased distance ; but, if the last of the five days be 
 a Sunday, the notice must arrive the day before. When the Bill drawn in 
 France falls due in a foreign country (as in England,) the Drawer and 
 Indorsers resident in France, must have notice within two months after the 
 date of the protest ; and, when the Bill is payable in other countries, more 
 or less prescribed time is allowed ; and, if the English Holder neglect to 
 observe the law of France, as to the time of protest, and notice, and pro- 
 ceeding in France, he will lose his remedy against the French Drawer and 
 Indorsers. The French Law does not assume to determine what delay 
 may be allowed in giving notice to, and proceeding against, the Drawer 
 and Indorsers residing in a foreign country. In general, they are regu- 
 lated, and are to he given effect to, in France, according to the law of 
 
360 BILLS OF EXCHANGE. [CH. IX. 
 
 governed by the same considerations as the present- 
 ment for acceptance.' If the party has changed his 
 domicil after he became a party to the Bill, and his re- 
 moval is known, notice should be given or sent to him 
 
 such foreign country, where there are conflicting regulations in the dif- 
 ferent countries in regard to commerce." Chitty on Bills, ch. 10, p. 507, 
 508 (8th edit. 1833.) It appears to me, that Mr. Chitty has mistaken the 
 rule of the French Law ; and that it is fifteen instead of five days, and 
 twenty-five miles instead of fifteen miles. Indeed, he seems, in p. 508, in 
 some measure to correct his own errors. Mr. Rodman gives the following 
 translation of the two articles (165 and 166) of the Code of Commerce : 
 " If the Holder would pursue his remedy individually against his imme- 
 diate Indorser, or the Drawer, in case the Bill came directly from him, he 
 must give him notice of the protest, and in default of reimbursement, com- 
 mence his suit against him within fifteen days from the date of the pro- 
 test, if the said Indorser or Drawer reside within the distance of five 
 myriametres (ten leagues, equal to twenty-five miles.) This period of 
 delay, with respect to the Indorser or Drawer, domiciled at a greater dis-> 
 tance than five myriametres from the place, where the Bill of Exchange 
 was payable, shall be increased one day for every two and a half myriame- 
 tres exceeding the five before mentioned. In the case of the protest of 
 Bills df Exchange drawn in France, and payable out of the continental ter. 
 ritory of France in Europe, the remedy against the Drawers and Indorsers 
 residing in France mustbe pursued within the followingperiods, to wit: Two 
 months for Bills payable in Corsica, in the island of Elba, or of Capraja, in 
 England, and in the countries bordering on France; Four months for those 
 payable in the other states of Europe ; Six months for those payable in the 
 ports of the Levant, and on the northern coasts of Africa ; A year for 
 those payable on the western coasts of Africa, as far as and including the 
 Cape of Good Hope, and in the West Indies ; Two years for those payable 
 in the East Indies. These periods of delay are allowed in the same pro- 
 portions, for pursuing the remedy against the Drawers and Indorsers re- 
 siding in the French possessions situated out of Europe. Th§ above- 
 mentioned delays, of six months, a year, and two years, are allowed to be 
 doubled in time of maritime war." Code of Commerce, by Rodman, p. 139, 
 141 (edit. 1814.) In the recent case of Rothschild v. Currie (1 Adolph. & 
 Ellis, New Rep. 43,) the Court of Queen's Bench seems to construe the 
 French Code as I have construed it. See also Pardessus, Droit Comm. 
 Tom. 2, art. 430, 431 ; Pothier de Change, n. 152 ; Jouse surl'Ord. 1673, 
 art. 13-15, p. 105-107 (edit. 1802); Locr6, Esprit du Code de Comm. 
 Tom. 1, tit. 8, § 1, art. 165, 166, p. 519-522. 
 
 1 Ante, § 235, 236 ; Williams v. Bank of U. States, 2 Peters, R. 100. 
 
CH. IX.] NON-ACCEPTANCE OF. 361 
 
 at his new place of domicil, if known, or if, by reason- 
 able diligence and inquiry, it can be ascertained.' If 
 the notice is to be given to a party in or near the place 
 of the dishonor of the Bill, and it is not sent by the 
 general post, it should be sent to, or given at, his place 
 of domicil, or his place of business ; and either will be 
 sufficient.® If sent by the general post, and his place 
 
 1 Bank of Utica v. Phillips, 3 Wend. R. 408 ; Cuyler ». Nellia, 4 Wend. 
 R. 398 ; Bank of Utica v. Davidson, 5 Wend. R. 587 ; Catskill Bank v. 
 Stall, 15 Wend: R. 364 ; Wells v. Whitehead, 15 Wend. R. 527 ; Low- 
 ery ti. Scott, 24 Wend. R. 358; Bayley on Bills, ch. 7, § 2, p. 280 to 282 
 (5th edit. 1830) ; McMurtrie v. Jones, 3 Wash. Cir. E. 226 ; Barker v. 
 Clarke, 2 Appleton, R. 156 ; Spencer v. Bank of Salina, 3 Hill, R. 520. 
 
 2 Chitty on Bills, ch. 7, p. 305 (8th edit. 1833) ; Id. ch. 10, § 502, 503, 
 516 ; Bayley on Bills, ch. 7, § 1, p. 218 to 226, 244 (5th edit. 1830) ; Id. 
 § 2, p. 276 ; 3 Kent. Comm. Lect. 44, p. 106 to 108 (4th edit.) ; Ireland 
 V. Kip, 10 Johns. R. 501 ; S. C. 11 Johns. R. 230 ; Smedes v. Utica Bank, 
 20 Johns. R. 372 ; Ransom v. Mack, 2 Hill, N. Y. R. 587 ; Laforte v. 
 Lamdry, 17 Martin, R. 359; Clay t>. Oakley, 17 Martin, R. 137; Porter 
 V. Boyle, 8 Miller, K. 170. See Stuckert v. Anderson, 3 Wharton, R. 
 116. — Mr. Chancellor Kent has summed up the general doctrine in the 
 following brief and comprehensive terms ; " Where the parties live in the 
 same town, and within the district of the letter-carrier, it is sufficient to 
 give notice by letter through the post-office. If there be no penny-post, 
 that goes to the quarter where the Drawer lives, the notice must be per- 
 sonal, or by a special messenger sent to the dwelling-house ; and it is ne- 
 cessary, in that case, that the notice be personally given to the party to 
 be charged, or at his dwelling-house or place of business, and the duty of 
 the Holder does not require him to give notice at any other place. The 
 notice, in all cases, is good, if left at the dwelling-house of the party, in a 
 way reasonably calculated to bring the knowledge of it home to him ; and 
 if the house be shut up by a temporary absence, still the notice may be 
 left there. If the parties live in different towns, the letter must be for- 
 warded to the post-office nearest to the party, though', under certain cir- 
 cumstances, a more distant post-office may do; but the cases have not 
 defined the precise distance from a post-office, at which the party must re- 
 side, to render the service of notice through the post-office good." 3 Kent, 
 Comm. Lect. 44, p. 107 (4th edit.). [In Kramer v. McDowell, 8 Watts 
 & Sergeant, R. 138, it was decided, that notice from one party to another 
 residing in the same city, must be served personally, or by leaving it at 
 
 B. OF EX. 31 
 
362 BILLS OP EXCHANGE. [CH. IX- 
 
 of business is in one town, and his domicil in another, 
 and the mail goes to both, it would seem sufficient to 
 send the notice to either place, properly directed, es- 
 pecially if the party is accustomed to receive notices 
 and letters at the post-office of each town.' It is not 
 indispensable for the notice to be sent to the post-office 
 nearest to the residence of the party, nor even to the 
 town, in which he resides, if it be, in fact, sent to the 
 post-office to which he usually resorts for his letters.® 
 And if a party reside in a county, and not in a town, 
 it seems, that it will be sufficient to send notice to him, 
 directed to him at the Court of Justice of the county, 
 although, in point of fact, there is a post-office nearer 
 to his residence, where he usually receives his letters.* 
 Where there is no post-office in the town where the 
 party resides, it would, perhaps, be sufficient to send 
 a letter, directed to him, to the nearest post-office, to 
 which letters addressed to that town are usually sent.* 
 
 his house or place of business; that depositing it in the post-office, direct- 
 ed to him, is not sufficient. See also Saul v. Brand, 1 Robinson, Louis. 
 R. 95 ; Hoggatt v. Bingaman, 7 Howard, Mississippi R. 565.] 
 
 1 See Bayley on Bills, ch. 7, ^ 1, p. 318 to 226, 244 (5th edit. 1830) ; 
 Chitty on Bills, ch. 7, p. 305, 307 (8th edit. 1833); Id. ch. 10, p. 488 ; 
 Bank of Columbia v. Lawrence, 1 Peters, R. 582 ; Reed v. Paine, 16 
 Johns. R. 218 ; Williams v. Bank of U. States, 2 Peters, R. 100 ; Bank 
 
 • of U. States v. Carneal, 2 Peters, R. 549 ; Cuyler v. Nellis, 4 Wend. R. 
 398 ; 3 Kent, Coram. Leet. 44, p. 106, 107 (4th edit.) ; Ransom v. Mack, 
 
 2 Hill, N. Y. R. 587. 
 
 2 Bank of Geneva t). Howlett, 4 Wend. R. 328 ; Cuyler v. Nellis, 4 
 Wend. R. 398 ; Catskill Bank v. Stall, 15 Wend. R. 364 ; Reed v. Paine, 
 16 Johns. R. 218 ; Mercer v. Lancaster, 6 Barr, R. 160 ; Jones v. Lewis, 
 8 Watts & Sergeant, R. 14. 
 
 3 Weakly w. Bell, 9 Watts, R. 213. See Yeatman v. Erwin, 5 Miller, 
 R. 264 ; Bank of U. States v. Carneal, 2 Peters, R. 543. 
 
 4 Shed V. Brett, 1 Pick. R. 401 ; Ireland v. Kip, 11 Johns. R. 231. 
 As to the effect of misdirection as to place, see Spencer v. Bank of Salina, 
 
 3 Hill, E. 520. 
 
CH. IX.] NON-ACCEPTANCE OF. 363 
 
 But it has been held, that if the person entitled to no- 
 tice, is living in the wilderness twenty or thirty miles 
 from any post-office, it is not sufficient to send notice 
 to hira by mail to the post-office nearest the residence 
 of the party ; but that it should be sent by a special 
 messenger, or given in person.-' 
 
 § 298. The same rule will generally apply to cases 
 where the notice is to be sent abroad to a foreign coun- 
 try. It should be directed to the party at his domicil, 
 or at his place of business, if they are in different 
 towns ; and it should be sent by the regular packet, if 
 there be any bound for the port or place of his domicil ; 
 and, if there be none, then by some other conveyance 
 to, or as near his place of domicil, or other direction, as 
 is practicable. If the packet do not proceed directly 
 to the port, where the party resides, or has his place of 
 business, it would seem sufficient to write the prx)per 
 direction of the party on the notice, so that it may be 
 sent in the usual manner, by the post or otherwise, 
 after the arrival of the packet, to the proper place, to 
 which it is directed. It is, however, almost impracti- 
 cable, on such a subject, to lay down any specific rules, 
 which shall govern all cases, since the circumstances 
 may so essentially vary. The most that can be said, 
 is, that reasonable diligence should be used, in all cases, 
 to make the notice effectual.^ 
 
 1 Fisk V. Jackraan, 1 Appleton, R. 467. 
 
 8 See Bank of U. States v. Carneal, 2 Peters, R. 549 ; Post, ^ 383. — 
 Mr. Chilty has deduced from the decisions some more minute directions ; 
 " When the notice (says he) is to be sent in a letter by post, care must be 
 observed, that the letter be accurately directed ; for any mistake, occasion- 
 ing delay, and which might have been avoided by due care, will deprive 
 the Holder of all remedy against the party to whom the notice ought to 
 have been given. If the party reside in a city or large town, the directions 
 
364 BILLS OF EXCHANGE. [CH. IX. 
 
 § 299. In cases, where the residence of the parties 
 who are to receive notice is unknown, it is incumbent 
 upon the Holder, and all other parties who are r^equired 
 to give notice, to make due inquiries, with reasonable 
 diligence, as to the true domicil and place of business 
 of the party ; and, unless they do so, those parties will 
 be discharged, if, upon the exercise of due diligence, 
 their places of domicil and business could have been 
 ascertained. What will be due and reasonable dili- 
 gence, in this respect, must essentially depend upon 
 the particular circumstances of each case.' If all 
 reasonable diligence is used, and all the inquiries are 
 unsuccessful, then "the Holder, and other persons bound 
 to give notice, are excused thereby from giving notice.*' 
 
 should not be to him at that place generally, but slate the particular street, 
 or part of the town, where he resides, and hiS' trade or occupation, so as 
 to prevent the risk of misdelivery, which might at least occasion delay in 
 the proper person receiving such notice ; therefore, it has been held, that 
 a notice to an Indorser, thus, ' Mr. Haynes, Bristol,' is too general and 
 insufficient, without express evidence, that the proper party received it in 
 due time, because the place being so populous, there may be many persons 
 of the same name there. And though a distinction has been taken as to 
 a Drawer, who himself dated his Bill so generally as ' Manchester,' it was 
 considered, that a notice directed to him, equally general, sufficed ; every 
 prudent Holder should, in all cases, make active inquiries, and write the 
 fullest description on a letter giving notice. It has been suggested, that, 
 if it be proved that there was a directory for the place, where it is sup- 
 posed the Indorser or Drawer resides, then, that the adoption of the ad- 
 dress, given in such directory, might, perhaps, be held sufficient. It is 
 not usual to advertise the dishonor of a Bill or note in the public papers ; 
 but, where the sum is considerable, and all other inquiries after an Indor- 
 ser have failed, it might be expedient to adopt that means of giving notice." 
 Chitty on Bills, ch. 10, p. 506 (8lh edit. 1833). 
 
 1 See Spencer v. Bank of Salina, 3 Hill, R. 520 ; Harris v. Robinson, 
 4 Howard, Sup. Ct. R. 345 ; Lambert v. Ghiselm, 9 Ibid. 552 ; Carroll 
 V. Upton, 2 Sandford, Superior Ct. N. Y. R. 171 ; Ibid. 3 Comst. 272 ; 
 Rawdon i>. Ledfeld, Ibid. 178 ; Belden u.jLamb, 17 Conn. R. 441 ; Walker 
 w. Tunstall, 3 Howard, Mississippi R. 259. 
 
 2 Chitty on Bills, ch. 10, p. 516, 524, 525, (8th. edit. 1833) ; Bayley 
 
CH. IX.J NON-ACCEPTANCE OP. 365 
 
 Where there are several persons, who are joint Draw- 
 ers or Indorsers, entitled to notice, who are not part- 
 
 on Bills, ch. 7, § 2, p. 274, 275, 280, 283, (5th edit. 1830) ; McMurtrie 
 V. Jones, 3 Wash. Cir. R. 206 ; Fardessus, Droit Comm. torn. 2, art. 
 434 ; Fisher v. Evans, 5 Binn. R. 542 ; Chapman v. Lipscombe, 1 Johns. 
 R. 294 ; Browning v. Kinnear, Gow, R. 81 ; Bateman v. Joseph, 12 East, 
 R. 433 ; Beveridge v. Burgis, 3 Camp. R. 262 ; Firth v. Thrush, 8Barn. 
 & Cressw. 387 ; Clarke v. Sharpe, 3 Mees. & Welsh. 166 ; Barnwell 
 V. Mitchill, 3 Conn. R. 101; 3 Kent," Comm. Lect. 44, p. 107, 108, 109, 
 (5th edit.) ; Stewart v. Eden, 2 Cain. R. 121 ; Blakely v. Grant, 6 Mass. 
 R. 386; Safford v. Wyckoff, 1 Hill, N. Y. R. 11 ; Howard et alv. Ives, 
 1 Hill, N. Y. R. 263 ; Ransom u. Mack, 2 Hill, N. Y. R. 587. Kaw- 
 don V. Redfield, 2 Sandford, Superior Ct. N. Y. R. 178. Mr. Chitty 
 says : " If the residence of the party, to whom the notice ought to be 
 given, be not known to the Holder, he must, nevertheless, not remain in a 
 state of passive and contented ignorance, but must use due diligence to dis- 
 cover his residence, and, if he do, then the Indorser remains liable, though 
 a month or more may have elapsed before actual notice be given ; and, if he 
 (the Holder) , before the Bill become due, should apply to one of the parties, 
 to ascertain the residence of any Indorser, and he should decline giving 
 him any information, the Holder need not, after the Bill became due, renew 
 his inquiries of that party.* But, in general, the Holder should not only 
 immediAely apply to all the parties to the Bill for information, but also 
 make inquiries, and send notice to the place, where it may reasonably be 
 supposed the party resides ; and, if he has employed an attorney, who, at 
 length, discovers the residence, we have seen, that it will suffice, if the 
 attorney, on the next day, consults with his client, and the latter, on the 
 third day, forwards the notice to the discovered Indorser, though, in 
 general, notice ought to be given on the next day. And a letter from the 
 Holder, giving notice of the dishonor, containing this passage, ' I did not 
 know where, till within these few days, you were to be found,' is not to 
 be taken as proving that the notice was not given on the next day after 
 the residence of the party was discovered. Where the traveller of a 
 tradesman received, in the course of business, a promissory note, which 
 was delivered to him for the use of his principal, without indorsing it, and 
 the note having been returned to the principal dishonored, and the latter, 
 not knowing the address of the next preceding Indorser, wrote to his 
 traveller, who was then absent from home, to inquire respecting it, it was 
 held, that such principal was not guilty of laches, although it was urged, 
 that the traveller ought to have stated the residence, when he remitted the 
 
 * I have varied Mr. CMtty's text in this place, to correct its inaccuracy and ob- 
 scurity. 
 
 31* 
 
366 BILLS OF EXCHANGE. [CH. IX. 
 
 ners, each would seem to be entitled to notice, and, 
 therefore, notice should be directed to his own proper 
 domicil or place of business.' Where they are part^ 
 
 notes, and though several days elapsed before he received an ansv^er, and 
 thereupon he gave notice to the next party, as he had used due diligence 
 in ascertaining the address." Chitty on Bills, ch. 10, p. 524, 525, (8th 
 edit. 1833) ; Id. 516. Mr. Bayley says : " A letter directed to a man at 
 a large town, vyithout specifying the part in which he lives, the trade he 
 carries on, or any other circumstance to distinguish him, may be sufficient, 
 if he be the Drawer, and has dated the Bill generally at that place ; or if, 
 upon reasonable inquiry, no information can be obtained to enable the 
 party, to give a better direction. But, prima facie, such a direction will be 
 insufGcient, because it is not likely, upon such a direction, the letter will 
 reach the person for whom it is intended, in proper time. If, however, it 
 be proved, that there was a directory at the time, for that place, and that 
 a reference to the directory would have shown in what part of the place 
 the person intended lived, such a direction might, perhaps, be held suffi- 
 cient. Where it is not known, where a party lives, due diligence must, 
 in general, be used to find out. And, where such diligence is unsuccess- 
 ful, it will excuse want of notice. But merely inquiring at the house, 
 where a Bill is payable, is not due diligence for finding out an Indorser. 
 Inquiry should be made of some of the other parties to the Billtor note, 
 and of persons of the same name. Calling on the last Indorser, and last 
 but one, the day after the Bill becomes due, to know where the Drawer 
 lives, and, on his not being in the way, calling again the next day, and 
 then giving the Drawer notice, may be sufficient. But, if a party, when 
 he passes a Bill or note, decline saying where he lives, and undertake to 
 call upon the Acceptor to see if the Bill is paid, he cannot complain of want 
 of notice. Where the residence of a party entitled to notice is unknown, 
 and the person next to him upon the Bill or note will give no information 
 where he lives, a note addressed to the former, if sent to the place where 
 such latter person lives, will be suflBcient, though the application for infor- 
 mation be made before the Bill or note is due; especially if the person 
 applied to has acted in any respect, with regard to the Bill or note, as 
 agent for the party entitled to notice. And, if the Holder employ an 
 attorney to give notice, and the attorney, after a lapse of time, discover 
 where the party lives, he may take a day to apprize the Holder, and take 
 his further directions, before he gives the notice." Bayley on Bills, ch. 
 7, ^ 2, p. 280 to 283, {5th edit. 1830.) 
 
 1 1 have not been able to find any English authority exactly in point ; but 
 the rule to be found in the Text Books, as to notice to one being notice to 
 all, is exclusively applied to partners. The American authorities are 
 
CH. IX.] NON-ACCEPTANCE 0?. 367 
 
 ners, notice to either of the partners will suffice, at the 
 domicil of either of them, or at their usual place of 
 business.* 
 
 § 300. In the next place, as to the mode of notice. 
 As has been already intimated, it is not essential in 
 general that notice should be communicated by a writ- 
 ten statement, at least where the parties are resident 
 in the same country. It may be by a verbal notice to 
 the party personally, or it may be by a written notice, 
 left at his domicil or place of business. If the notice 
 be written, it is not indispensable to be given to him 
 personally. It is sufficient if it be sent or delivered to 
 some suitable person at his place of business, such as 
 his clerk or agent ; or to some suitable person at his 
 place of residence.^ If the call is made at reasonable 
 hours, and no person can be found to whom the notice 
 can be communicated, the Holder, or other party giv- 
 ing the notice, will be excused from further efforts.' 
 
 opposed to each other. In Ohio, it is held, that notice to one is notice to 
 all joint Indorsers. Harris v. Clark, 10 Ohio, R. 5. In Connecticut it is 
 held, that notice should be given severally to each joint Indorser. Shep- 
 herd V. Hawkey, 1 Connect. R. -368. [So also in Pennsylvania. Sayre 
 B. Frick, 7 Watts and Sergeant, R. 383.] See, also, 3 Kent, Comm. 
 Lect. 44, p. 105, n. {b) (5th edit.) Whether notice to a Director of a 
 Bank, is notice to the Bank, see Story on Agency, §140 a, 140 5; 1 
 Story, Eq; Jurisp. §408 a.; Commercial Bank v. Cunningham, 24 Pick. 
 270, 276. 
 
 1 See Chitty on Bills, ch. 8, p. 355, 369, 370, (8th edit. 1833) ; Bayley 
 on Bills, ch. 7, § 2, p. 285, (5th edit. 1830) ; Porthouse v. Parker, 1 
 Camp. R. 82. I do not know of any direct authority to this point ; but it 
 seems to me to be the result of general principles. 
 
 2 Chitty on Bills, ch. 10, p. 502 to 504, (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, § 2, p. 276 to 278 (5th edit. 1830) ; 3 Kent, Comm. Lect. 
 44, p. 106, 107 (4th edit.) ; U. States v. Barker's Admin. 4 Wash. Cir. 
 R. 464. 
 
 3 Ibid. ; Crosse t). Smith, 1 Maule & Selw. 545 ; Bancroft v. Hall, 
 1 Holt, R. 476 ; Stewart v. Eden, 2 Caines, R. 121 ; 3 Kent, Comm, 
 
368 BILLS OF EXCHANGE. [CH. IX. 
 
 Where the notice is to be sent by the general post, or 
 other regular conveyance, it is of course necessary that 
 it should be in writing, and properly directed, other- 
 wise the error may be fatal. Where it is sent by a 
 special messenger, it may be verbal ; but, in such a 
 case, it is far more desirable, to prevent mistakes, that 
 it should be in writing. But, whatever mode is adopted 
 to transmit notice, if it be that which is pointed out by 
 the law, and conformable to it, it is of no consequence 
 whether it ever actually reaches the party or, not. It 
 is sufficient that the Holder, or other party giving the 
 notice, has done his duty. Thus, for example, if a let- 
 ter containing the notice has been regularly put into 
 the post-office, or regularly sent by any other proper 
 conveyance, it is wholly immaterial, whether it has 
 reached the party who is entitled to notice or not.^ 
 
 Lect. 44, p. 106 to 108 (4th edit.); Allen v. Edmondson, 2 Welsb., 
 Hailstone & Gordon, 719; S. C. 2 Carrington & Kirwan, -547. — 
 Mr. Chitty says : "With respect to the mode of giving the notice, per- 
 sonal service is not necessary, nor is it req^uisite to leave a written notice 
 at the residence of the party ; but it is sufficient to send to, or convey 
 verbal notice at, the counting-house or place of abode of the party, with- 
 out leaving notice in writing ; and the giving such verbal notice to a serv- 
 ant at his home, the defendant having left no clerk in his counting-house, 
 as it was his duty to do, suffices. And where the Drawee has a counting- 
 house, where he transacts business, and at which the Bill was addressed, 
 it suffices to apply there for the purpose of giving notice, without attempt- 
 ing to give or leave notice at the residence of the Drawee. And it is 
 sufficient, both in the case of a foreign and an inland Bill, to send twice 
 during hours of business, and to knock there and wait a short time, and 
 then go away without leaving or sending any written notice." Chitty on 
 Bills, ch. 10, p. 502, 503 (8th edit. 1833) ; Miles v. Hall, 12 Smedes & 
 Marshall, R. 332. 
 
 1 Chitty on Bills, ch. 10, p. 502 to 504 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, ^ 2, p. 279 (5th edit. 1830) ; Saunderson v. Judge, 2 H. 
 Bl aok. 509 ; Dobree v. Eastwood, 3 Carr. & Payne, 250 ; Kufh v. Wes- 
 ton, 3 Esp. R. 54 ; 3 Kent, Comm. Lect. 44, p. 106, 107 (4th edit.) ; 
 
CH. IX.] NON-ACCEPTANCE OP. 369 
 
 § 301. In the next place, as to the form of the 
 notice. In general it may be stated that no particular 
 form or language is indispensable to be used. It is 
 sufficient, if it contains a true description of the Bill, 
 so as to identify it ; that it states that it has been pre- 
 sented for acceptance, and has been dishonored and 
 protested for non-acceptance, and that the Holder, or 
 other party sending the notice, looks to the party to 
 whom the notice is sent for indemnity and satisfaction.^ 
 Indeed, these statements need not appear in positive or 
 express words ; but it will be sufficient if they arise 
 by fair and reasonable implication from the language 
 used.^ 
 
 Gallagher v. Roberts, 2 Wash. Cir. E. 91 ; Woodcock v. Houldsworth, 
 16 Mees. & Welsh. 124. 
 
 1 Chitty on Bills, ch. 8, p. 365 (8th edit. 1833) ; Id. ch. 10, p. 501, 
 502 ; Bayley on Bills, ch. 7, § 3, p. 256, 257 (5th edit. 1830) ; Tindal v. 
 Brown, 1 Term R. 167, 186 ; Hartley v. Case, 4 Barn. & Cressw. 339 ; 
 Mills V. Bank of U. States, 11 Wheat. R. 431 ; Cook v. French, 10 Adolph. 
 & Ellis, 131 ; Lewis v. Gompertz, 6 Mees. & Welsh. 399 ; Stocken v. 
 Collins, 7 Mees. & Welsh. 515 ; Cowles v. Harts, 3 Conn. R. 517 ; 
 3 Kent, Comm. Lect. 44, p. 108 (4th edit.) 
 
 2 Story on Premiss. Notes, § 349, 350. Mr. Chitty (Chitty on Bills, 
 ch. 10, p. 503, note, 8th edit. 1833) has given a comprehensive form of a 
 notice of dishonor of a Bill of Exchange for non-payment, which may 
 {mutatis mutandis) equally serve for cases of non-acceptance. Upon the 
 subject of what notices of the dishonor are, and what are not, sufficient in 
 form, there are a great variety of decisions, not easily reconcilable with 
 each other, principally, however, arising in cases of promissory notes. 
 But the same principles apply to cases of Bills of Exchange in respect 
 both to notice of non-acceptance and notices of non-pa;yment. The earlier 
 cases insist upon a good deal of strictness. The later are far more liberal, 
 and founded upon more just and equitable considerations. See Lockwood 
 V. Crawford, 18 Conn. R. 361 ; Channing v. Gatewood, 5 Howard, Mis- 
 sissippi R. 551 ; Bank of Vergennes v. Cameron, 7 Barbour, Sup. Ct R. 
 143 ; Armstrong v. Christiani, 5 Manning, Granger & Scott, 687 ; Row- 
 lands V. Springett, 14 Mees. & Welsh. 7 ; Bailey v. Porter, 14 Mees. 
 & Welsh. 44 ; Cowperthwaite v. Sheffield, 1 Sandford, Sup. Ct. R. 
 416 ; DeWolf v. Murray, 2 Sandford, Superior Ct. N. Y. R. 166 ; Hart- 
 
370 BILLS OF EXCHANGE. [CH. 
 
 IX. 
 
 § 302. It is often laid down, that, in cases of a 
 foreign Bill of Exchange, the notice of the dishonor 
 should be accompanied with a copy of the protest.' 
 But this doctrine never seems to have been established ' 
 in our law ; and, on the contrary, it may now be laid 
 down, that it is not necessary that the notice should be 
 accompanied by a copy of the protest ; and, that it 
 will be sufficient for the notice to state, that the Bill 
 had been protested, leaving the proof to be made by 
 the production of the protest at the trial if the case is 
 contested.^ 
 
 ley V. Case, 4 Barn. & Cressw. 339 ; Solarte v. Palmer, 7 Bing. R. 530 ; 
 S. C. on Appeal, 8 Bligh, R. (N. S.) 874; 1 Bing. New Cas. 194 ; 
 Beauchamp v. Cash, Dow. & Ryl. N. P. C. 3 ; Cook ». French, 10 Adolph. 
 & Ellis, 131 ; Boulton v. Welsh, 3 Bing. New Cas. 688 ; Hedger v. 
 Steavenson, 2 Mees. & Welsh. 799; S. C. 1 Bing. New Cas. 125, 
 
 2 Clark & Fin. 93 ; Lewis v. Gompertz, 6 Mees. & Welsh. 399 ; Mes- 
 senger V. Southey, 1 Mann. & Grang. 76 ; Stocken v. Collins, 7 Mees. 
 & Welsh. 515 ; Grugeon v. Smith, 6 Adolph. & Ellis, 499 ; Houlditch v. 
 Cauty, 4 Bing. New Cas. 411 ; 3 Kent, Coram. Lect. 44, p. 108 (4th 
 edit.) ; Robsor v. Curlewis, 1 Carr. & Marsh. R. 374 ; Boulton v. Welsh, 
 
 3 Bing. New Cas. 688; Hedger v. Steavenson, 2 Mees. & Welsh. 799 ; 
 King V. Beckley, 2 Gale & David. R. 131, note ; S. C. 2 Adolph. & Ell. 
 New E. 49; Furze v. Sharwood, 2 Adolph. & Ell. New R. 388 ; S. C. 
 2 Gale & David. R. 116. In this last case the principal authorities on 
 this subject are reviewed by Lord Denman. See his~Judgment, Post, 
 ^ 390, note. 
 
 1 Chitty on Bills, ch. 8, p. 363, 366 {8th edit. 1833) ; Id. ch. 10, 
 p. 509 ; Bayley on Bills, ch. 7, § 2, p. 258, 259 (5th edit. 1830). See 
 Orr V. Maginnis, 7 East, R. 362. 
 
 ^ Cromwell v. Hynson, 2 Esp. R. 511 ; Robins v. Gibson, 1 Maule & 
 Selw. 288 ; Goodman v. Harvey, 4 Adolph. & Ellis, 870 ; Lenox v. 
 Leverett, 10 Mass. R. 1 ; Wallace v. Agty, 4 Mason, R. 336. — There is 
 no case in our law, which I have been able to find, which positively 
 requires, that a copy of the protest should accompany the notice, but only 
 that a protest should actually he made and proved, when required. Of 
 this latter point there can be no doubt. Ante, § 273, 278 ; Bayley on 
 Bills, ch. 7, ^ 2, p. 258, 259 (5th edit. 1830) ; Chitty on Bills, ch. 8, 
 p. 361, 362 (8th edit. 1833) ; Rogers v. Stephens, 2 Term R. 713 ; Gale 
 V. Walsh, 5 Term R. 239. But the cases, usually cited to establish the 
 
OH. IX.] NON-ACCEPTANCE OF. 371 
 
 § 303. lu the next place, as to the persons by ■whom 
 notice is to be given. From what has been already- 
 stated, it is sufficiently apparent, that notice must be 
 given by the Holder to the parties whom he means to 
 hold chargeable with the Bill upon its dishonor; and 
 the like rule applies to all the other parties on the Bill 
 who receive notice, and are liable thereupon to pay the 
 Bill, as to giving notice to the prior parties, who, upon 
 notice, would be liable to reimburse them.' The notice 
 must also, in general, come from the Holder, or his 
 agent (for notice by an agent is equivalent to notice 
 by the principal) ; and it will not be sufficient, that it 
 comes from a mere stranger to the Bill, however early 
 or regular in other respects it may be.^ The reason is. 
 
 point, that a copy of the protest should accompany the protest, by no 
 means establish any such doctrine. They are Brough v. Perkins, 2 Ld. 
 Raym. 993 ; S. C. 1 Salk. R. 131, 6 Mod. 80 ; Orr v. Maginnis, 7 East, 
 R. 362 ; Goostrey u. Mead, Bull. N. Prius, 271 ; Gilb. on Eyid. p. 79 
 (edit. 1761). On the contrary, the decisions in Cromwell v. Hynson, 
 2 Esp. R. 511 ; Robins v. Gibson, 1 Made & Selw. 288 ; S. C. 3 Camp. 
 R. 334, are the other way ; and the very point was positively adjudged in 
 Goodman v. Harvey, 4 Adolph. & Ellis, 870, that there was no necessity 
 of sending a copy of the protest. To the same effect is Lenox v. Lever- 
 ett, 10 Mass. R. 1, and "Wallace v. Agry, 4 Mason, R. 336 ; Wells v. 
 Whitehead, 15 Wend. R. 527 ; 3 Kent, Comm. Lect. 44, p. 108 (4th 
 edit.) See also 1 Selw. N, Prius, 338 (10th edit. 1842.) Pothier seems 
 to hold the like doctrine under the old French Law. Pothier de. Change, 
 n. 148 to 150. It is said by Pardessus, that a copy of the protest, how- 
 ever, should accompany the notice under the modern law of France. Par- 
 dessus, Droit Comm. torn. 2, art, 431. But I do not find it positively 
 required by the Code of Commerce ; but it is only said, that the protest 
 should be notified to the Drawers and Indorsers. Code de Comm. art. 
 165; Locr6, Esprit du Code de Comm. torn. 1, tit. 8, ^ 1, art. 165, 
 p. 519, 520. 
 
 1 Ante, § 284 ; Chitty on Bills, ch. 10, p. 525 to 532 (8th edit. 1833) ; 
 Harrison v. Ruscoe, 15 Mees. & Welsh. 231. 
 
 2 Ibid. p. 526 ; Bayley on Bills, ch. 7, § 2, p. 254 to 556 (5th edit. 
 1830) ; Nicholson i>. Gouthit, 2 H. Black. 612 ; Tindal v. Brown, 1 Term 
 
372 BILLS OF EXCHANGE. [CH. IX. 
 
 that the notice is required to be given, not merely that 
 the parties to whom it is given may give notice to 
 those "who are liable to them for an indemnity upon 
 receiving notice, but also to show, that the Holder 
 intends to stand upon his legal rights, and to resort to 
 the antecedent parties to whom he gives notice for 
 payment.^ Hence it is, that the notice given by the 
 Holder must, either expressly or by natural implica- 
 tion,* import, that the holder looks to the antecedent 
 parties for payment.® And it is perfectly competent 
 for the Holder to waive his recourse over against the 
 antecedent parties ; and, if he does not give or autho- 
 rize any notice to be given, he is deemed, to all intents 
 
 R. 167 ; Whitfield v. Savage, 2 Bos. & Pull. 277 ; Stewart v. Kennett, 
 2 Camp. R. 177 ; Ex parte Barelay, 7 vVes. 597 ; Jameson v. Swinton, 
 2 Taunt. R. 224 ; Chamoine v. Fowler, 3 Wend. R. 173 ; Stanton v. 
 Blossom, 14 Mass. R. 116 ; Tunno «. Lague, 2 Johns. Cas. 1 ; Mead v. 
 Engs, 5 Cowen, R. 503. — A notice from' a notary public, to whom the 
 Bill has been handed for the purpose of having it presented by him, will, 
 upon non-acceptance, be sufficient ; for he will be deemed an agent for 
 the Holder, for the purpose of giving notice ; and, indeed, it is usual for 
 notaries to 'give such notice. Bank of Utica v. Smith, 18 Johns. R. 230 ; 
 Smedes v. Utica Bank, 20 Johns. R. 372 ; S. C. 3 Cowen, R. 662 ; Saf- 
 ford V. Wyokoff, 1 Hill, N. Y. R. 11 ; Howard et al. v. Ives, 1 Hill, 
 N. Y. R. 263. So, any person, in whose possession a Bill lawfully is, is 
 clothed with sufficient authority to give notice. And a verbal authority is, 
 in all cases, as good as a written authority. Ibid. Cowperthwaite v. 
 Sheffield, 1 Sandford, Sup. Ct. R. 416. But an agent is not ordinarily 
 bound to give notice to the other parties of the dishonor, and, therefore, 
 an omission on his own part to do so, although it may subject him to an 
 action by his principal, if he has undertaken to give notice, and his prin- 
 cipal has suffered a loss thereby ; yet the other parties to the Bill have no 
 rights against him ; and they will be bound by a notice given to them in 
 due season by the principal. Ante, § 292 ; Bank of U. States v. Goddard, 
 5 Mason, R. 366; Bank of Washington v. Triplett, 1 Peters, R. 25; 
 Smedes v. Utica Bank, 20 Johns. R. 372 ; S. C. 3 Cowen, R. 662 ; Bay- 
 ley on Bills, ch. 7, § 2, p. 290 (5th edit. 1830) ; Story on Agency, ^ 247. 
 
 1 Ibid. ; Chapman v. Keane, 3 Adolph. & Ell. 193, 197. 
 
 a Ante, § 301. 
 
CH. IX.] NON-ACCEPTANCE OF. 373 
 
 and purposes, to intend such a waiver, or at least it 
 becomes an effectual waiver in point of law. 
 
 § 304. We have said, that, in general, the notice 
 must come from the Holder of the Bill, or his agent, 
 and not from a mere stranger. There is, however, a 
 qualification introduced into the rule by the modern 
 authorities. It is this, that the notice will be sufficient, 
 although not given by the Holder, or his agent, if it 
 comes from some person, who holds the Bill, when it 
 is dishonored, or who is a party to the Bill, or who 
 would, on the same being returned to him, and after 
 paying it, be entitled to require reimbursement thereof; 
 for, under such circumstances, the notice will, in gene- 
 ral, enure to the benefit of all the other parties to the 
 Bill, whether they are antecedent or subsequent parties 
 thereon, to the party who gives the notice.' The doc- 
 
 1 Chitty on Bills, ch. 10, p. 534, 527 (Sth edit. 1833) ; Id. ch. 8, p. 
 368, 369 ; Bayley on Bills, ch. 7, ^ 2, p. 254 to 256 (5th edit. 1830.) — 
 The language, both of Mr. Chitty and Mr. Bayley, in the cases cited, is 
 qualified, and does not seem to cover the doctrine in its fullest extent, 
 probably because, in the then state of the authorities, they did not come 
 exactly up to the enunciation of a universal principle. Mr. Chitty says : 
 " However, according to the more recent decisions, it is not absolutely 
 necessary, that the notice should come from the person who holds the 
 Bill, when it has been dishonored ; and it suffices, if it be given, after the 
 Bill was dishonored, by any person, who is a party to the Bill, or who 
 would, on the same being returned to him, and after paying it, be entitled 
 to require reimbursement ; and such notice will, in general, enure to the 
 benefit of all the antecedent parties, and render a further notice from any 
 of those parties unnecessary ; because it makes no difference who gives 
 the information, since the object of the notice is, that the parties may have 
 recourse to the Acceptor." Mr. Bayley says : " The notice must come 
 from the Holder, or from some party entitled to call for payment or re- 
 imbursement. It has, indeed, been held, that notice from the Acceptor to 
 the Drawer, that he had not been able to pay it, and that it was then in 
 plaintiff's hands, was sufficient.; but that might, perhaps, hav^ been on 
 the ground, that the Acceptor wrote for the plaintiff, and as his agent. 
 
 B. OF EX. ■ 32 
 
374 BILLS OP EXCHANGE. [CH, IX. 
 
 trine, indeed, may now be stated, even in more general 
 terms ; and it may be laid down as universally true, 
 that a party entitled, as Holder, to sue upon a Bill, 
 may avail himself of the notice given in due time by 
 any other pftrty to it, against any other person upon 
 the Bill, who would be liable to him, if he, the Holder, 
 had himself given him due notice of the dishonor.^ 
 [§ 304 a. It remains to consider the eJBfect of an untrue 
 
 A notice from the Holder, or any other party, will enure to the benefit of 
 every other party who stands between the person giving the notice and 
 the person to whom it is given. Therefore, a notice from the last Indor- 
 see to the Drawer will operate as a notice from each Indorser. It is, 
 nevertheless, prudent in each party, who receives a notice, to give imme- 
 diate notice to those parties against whom he may have right to claim ; 
 for the Solder may have omitted notice to some of them, and that will be 
 no protection ; or there may be difficulties in proving such notice. 
 Though a Holder, or any other party, give no notice but to the person of 
 whom he took the Bill, yet, if notice be communicated without laches to 
 the prior parties, he may avail himself of such cummunicatioa, and sue 
 any of such prior parlies. It is no objection, in such case, that there was 
 no notice immediately from the plaintiff to the defendant." 3 Kent, 
 Comtn. Lect. 44, p. 108 (4th edit.) ; Howard v. Ives, 1 Hill, N. Y. Rep. 
 263 ; Safford v. Wyckoff, 1 Hill, N. Y. Rep. II. 
 
 1 The doctrine of Lord Mansfield, in Tindal «. Brown, (1 Term R. 167, 
 2 Term R. 186,) and of LordEldon, in Ex parte Carkey (7 Ves. 597,) is 
 certainly the other way. But they were qualified or overruled, in efl^ect, 
 by Lord Kenyon, in Shaw v. Croft, cited in Chitty on Bills, ch. 10, p. 
 537 (8th edit. 1833) ; by Mr. Justice Lawrence, in Jameson v. Swinton (3 
 Camp. R. 373) ; and by Lord Ellenborough, in Wilson v. Swabey (1 
 Stark. R. 34,) and Kosher u. Kieran (4 Camp. R. 87.) And all doubts 
 upon the subject are now finally put at rest, by the decision in Chapman 
 V. Keane, (3 Adolph. & Ellis, 193,) where all the authorities were re- 
 viewed, and the doctrine stated in the text expressly affirmed. See, also, 
 Lysaght «. Bryant, 9 Manning, Granger & Scott, 46. The same doc- 
 trine seems to have been held in Stafford ». Yates, 18 Johns. R. 327, and 
 Abat V. Rion, 9 Martin, R. 465 ; Stanton v. Blossom, 14 Mass. R. 116 ; 
 Bank of U. States v. Goddard, 5 Mason, R. 366 ; Bachellor v. Priest, 12 
 Pick. R. 406. The like doctrine applies to notice on inland Bills, as is 
 applied to foreign Bills. Chitty on Bills, ch. 8, p. 368, 369 (8th edit. 
 1833.) 
 
CH. IX.] NON-ACCEPTANCE OP. 375 
 
 description of the party in whose behalf the notice is 
 given; and on this head a case, regarded hy the Court 
 as " perfectly novel," has been recently decided in the 
 English Exchequer. A Bill was drawn by A., indorsed 
 by him to B., and by B. to C, in whose hands it was 
 dishonored. C.'s attorney gave notice of dishonor in 
 due time to A. ; but stated therein, by mistake, that he 
 was directed by B. (from whom he had no authority,) 
 to apply for payment of the Bill. On these facts, it 
 was held that the misrepresentation of the name of the 
 person on whose behalf notice was given, ought not 
 wholly to avoid the notice, but only to place the party 
 giving it, in the same situation, as to the party to whom 
 it was given, as if the representation had been true ; 
 and, therefore, the defendant ought to have every de- 
 fence against the plaintiff that he would have had if 
 the notice had really been given by the party named.'] 
 § 305. In the next place, as to the persons to whom 
 notice is to be given. Subject to the qualifications 
 just stated, the notice must, of course, be given by the 
 Holder, or other party, to all the persons whose names 
 are on the Bill, who are liable to him upon its dishonor, 
 and to whom he means to look for payment or reim- 
 bursement.* But notice to a regularly authorized agent 
 will be equivalent to notice to the principal.^ Notice 
 to one of several partners is notice to all the partners ;* 
 
 ' Hai^rison v. Ruscoe, 15 Mees. & Welsb. 231 ; See also Lysaght v. 
 Biyant, 2 Carrington & Kirwan, 1016 ; Crocker v. Getchell, 23, Maine, 
 R. 392. 
 
 2 Chiity on Bills, oh. 8, p. 368 (8th edit. 1833.) 
 
 3 See Bayley on Bills, oh. 7, ^ 2, p. 311 ; Smith v. Thatcher, 4 Barn. 
 & Aid. 200 ; Wilcox v. Routh, 9 Smedes & Marshall, R. 476. 
 
 4 Chitiy on Bills, ch. 8, p. 355, 369, 370 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, § 2, p. 285, 286 (5th edit. 1830) ; Id. ch. 11, p. 463; Port- 
 
376 BILLS OF EXCHANQB, [CH. IX. 
 
 and the notice may be given to any partner, either at 
 his usual place of business, or at his dWelling-house, or 
 at the usual place of business of the firm.^ If the 
 party entitled to notice has become bankrupt, and as- 
 signees have been chosen or appointed, notice to the 
 assignees is proper, and will be sufficient.^ But, if no 
 assignees have been chosen or appointed, notice to the 
 bankrupt will be sufficient.s If the party, entitled to 
 notice, is dead, notice should be given to his executor 
 or administrator, if there is any appointed ; * and, if 
 there is nonff, it will be prudent to have the notice sent 
 to the last residence or domicil of the deceased party.* 
 If there be a guaranty on the Bjll, although it is not 
 absolutely necessary, yet it will be expedient to give 
 notice, also, of the dishonor to the Guarantor.^ If the 
 
 house J'. Parker, 1 Canop. R. 82 ; Rhode v. Proctor, 4 Barn. & Cressw. 
 517 ; Bignold v. Waterhouse, 1 Maule & Selw. 255, 259 ; Gowan v. 
 Jackson, 20 Johns. R. 176 ; Rhett v. Poe, 2 How. Sup. Ct. Rep. 457. 
 
 1 Ante, § 299. — If the Drawer of a Bill be a partner in a firm on 
 which the Bill is drawn, the Holder need not give him notice of the dis- 
 honor hy non-acceptance of the Bill by the firm ; for, as the firm must 
 have notice thereof, that is notice to himself. Gowan v. Jackson, 20 
 Johns. R. 176. 
 
 2,Bayley on Bills, ch. 7, ^2, p. 285, 286 (5th edit. 1830) ; Chitty on 
 Bills, ch. 8, p. 369 (8th edit. 1833) ; Id. ch. 10, p. 488, 528 to 530 ; Ex 
 parte Moline, 19 Ves. 216. 
 
 s Ibid. 
 
 4 Chitty on Bills, ch. 8, p. 369, 370 (8lh edit. 1833) ; Id. ch. 10, p. 474, 
 528 to 530 ; Bayley on Bills, ch. 7, p. 286 (5th edit. 1830.) 
 
 6 Ibid. 
 
 6 Ibid.; Post, § 372 ; Warrington v. Furbor, 8 East, R. 242; Holbrow 
 V. Wilkins, 1 Barn. & Cressw. 10 ; Phillips v. Astling, 2 Taunt. R. 206 ; 
 Hitchcock V. Humphrey, The (English) Jurist for May 20, 1843, p. 428 ; 
 Halli). Rogers, 7 Humphrey, R. 530. See Lee i>. Dick, 10 Peters, R. 
 482. — Mr. Bayley says : "And a surety, though not a party to a Bill or 
 note, may be discharged by want of notice and neglect to present, if it be 
 probable he would otherwise have been safe ; as, if the parties, who 
 ought to have paid, were solvent, when the Bill or note became due, and 
 
CH. IX.] NON-AOCEPTANCE OF. 377 
 
 party entitled to notice is abroad, at the time of 
 the dishonor, the notice should be left at his regular 
 residence or domicil in his own country.-' If the 
 
 have failed since. But a person, not a party to a Bill or note, cannot 
 complain of laches, or VKant of notice, unless he can show it has done him 
 prejudice. And, if he can prove it has done him prejudice, he can only 
 recover to the extent of such prejudice. Therefore, each case will de- 
 pend upon its own peculiar circumstances. And the questions, in each 
 case will be, Whether there has been any prejudice, and what." Bayley 
 on Bills, ch. 7, § 3, p. 286 to 290 (5th edit. 1830.) [But see Walton v. 
 Mascall, 13 Mees. & Welsh. 72, where it is expressly decided that the 
 Guarantor is not entitled to notice of the dishonor of a note.] Mr. Chitty 
 says : " In general, if the Bill or note be given as a collateral security, 
 and the party delivering it were no party to it, either by indorsing, or 
 transferring it by delivery, when payable to Bearer ; but merely caused it 
 to be drawn or indorsed, or delivered over by a third person, as a security, 
 or has merely guaranteed the payment, it has been consideredj that he is 
 not, within the custom of merchants, an Indorser, or party to it, so as 
 to be absolutely entitled to strict regular notice, nor discharged from his 
 liability by the neglect of the Holder to give him such notice, unless he 
 can show, by express evidence, or by inference, that he has actually 
 sustained loss or damage by the omission. For, if a person deliver 
 over a Bill to another, without indorsing it, he does not subject himself 
 to the obligations of the Law Merchant, and cannot be sued upon the 
 Bill; and, as he does not subject himself to the obligation, he is not 
 entitled to the advantages; and, if he can prove, that he has. sustained 
 damage, then he is only discharged to the extent of such actual damage. 
 If the parlies, who ought primarily to have paid the Bill or note, were 
 solvent at the time, when the same became due, and for some time after- 
 wards, and only subsequently became insolvent, before notice ; an inference 
 of actual damage from the want of notice to the party guaranteeing, or 
 otherwise collaterally liable, will prevail, until rebutted by actual proof, 
 that, if notice had been given, payment would not have been obtained. 
 But, if the parties became bankrupt, or wholly insolvent, before the Bill 
 or note fell due, then the inference will be, that no injury arose from the 
 want of notice ; but that inference may be rebutted. Thus, it was de- 
 cided, that a person, who has guaranteed the payment of money, to be 
 paid by a Bill, was entitled (though no party to it) to insist on the neglect 
 to make a proper presentment, or to give due notice of the dishonor of 
 such Bill, the Drawer having become insolvent after it became due. la 
 
 1 Chitty on Bills, oh. 8, p. 369, 370 (8th edit. 1833) ; Cromwell v. 
 Hynson, 2 Esp. R. 511. 
 
 32* 
 
378 BILLS OP EXCHANGE. [CH. IX. 
 
 party entitled to notice has changed his resi- 
 dence or domicil, and his new residence or domicil is 
 
 another case, the defendant, being indebted to the plaintiff for goods sold, 
 and C. beings indebted to the defendant, the plaintiff, with the consent of 
 defendant, drew a Bill on C, payable at two months, which C. accepted, 
 but afterwards dishonored ; and it was held, that the defendant was not en- 
 titled to notice of the dishonor, his name not being on the Bill, and that 
 the Bill was not to be esteemed a complete payment of the debt, under the 
 Statute of Anne ; but then it appeared, that the Drawee was certainly, 
 from the time the Bill fell due, not in a condition to pay it. And it has 
 been held, that proof, that, before the Bill became due, the parties liable 
 upon it were bankrupt or insolvent, will be prima facie evidence, that a 
 demand upon them would have been of no avail, and will dispense with 
 the necessity of making such presentment or giving notice, because the 
 same strictness of proof is not necessary to charge a guarantor, as is ne- 
 cessary to support an action upon the Bill itself, and the circumstances 
 created a presumption, that the guarantor was not prejudiced by the want 
 of notice. Where the plaintiff sold goods to C. and P., and took their accept- 
 ance for the amount, half of which was guaranteed by the defendant, and 
 before the Bill became due, C. and P. became insolvent, of which the de- 
 fendant was then informed, and, also, that the plaintiffs looked to him for 
 the sum, which he had guaranteed, it was held, that, under these circum- 
 stances, it was unnecessary for the plaintiffs to present the Bill when due, 
 or give the defendant notice of the non-payment of it. Where A. & Co., 
 resident in America, employed B., resident at Birmingham, in this coun- 
 try, to purchase and ship goods for them, and, on account of such pur- 
 chases, they sent to B. a Bill drawn by C, in America, on D., in London, 
 but did not indorse it, B. employed his bankers to present the Bill for ac- 
 ceptance, and p. refused to accept ; but of this the bankers did not give 
 notice until the day of payment, when it was again presented and dis- 
 honored ; and before the Bill arrived in this country, C. became bankrupt, 
 and he had not, either when the Bill was drawn, or at any time before it 
 became due, any funds in the hands of D., the Drawee ; in an action by 
 B. against the bankers, for negligence, in not giving him notice of the non-r 
 acceptance, it was held, that, inasmuch as A. & Co., not having indorsed 
 the Bill, were not entitled to notice of dishonor, and still remained liable 
 to B. for the price of the goods sent to them, and the Drawer was not 
 entitled to notice, as he had no funds in the hands of the Drawee, B. could 
 not recover the whole amount of the Bill, but only such damages as he 
 had actually sustained, in consequence of having been delayed in the pur- 
 suit of his remedy against the Drawer. Where even a party's name is on 
 the Bill, yet, if he give a bond, conditioned for payment by the Acceptor, 
 
CH. IX.J NON-ACCEPTANCE OP. 379 
 
 known, notice is there to be given.^ If the new resi- 
 dence or domicil is unknown, and cannot, upon reason- 
 able inquiry, be ascertained, then the notice will, in 
 point of law, be dispensed with, or excused.^ If several 
 persons, not partners, are joint Drawers, or joint Indor- 
 sers, upon the Bill, and entitled to notice, the notice 
 must be given to each severally, otherwise he will not 
 be bound.^ 
 
 § 306. Where a party to a Bill is entitled to strict 
 notice of the dishonor, in order to charge him, it is no 
 excuse, that he has sustained no injury or prejudice by 
 the want of notice ; for he has a right to stand upon 
 the terms and conditions of his contract, and to require 
 a strict fulfilment of duty, on the part of the Holder, in 
 giving him notice, although he has sustained no injury 
 or prejudice. Hence, it will constitute no excuse for 
 want of notice, that th§ Drawee is insolvent, or that, 
 from other causes, the party entitled to notice could 
 not have sustained any injury or prejudice.* The 
 
 within a month after it was due, without any stipulation about ootice, the 
 want of notice is no defence, the bond being an absolute engagement, that 
 payment should be made. But we have seen, that the Drawer of a re- 
 newed Bill is, by the neglect to give him notice of the dishonor of it, 
 not only discharged from the liability to pay it, but also from all liability to 
 pay the prior Bill. The doctrine, that, unless a person is a party to a 
 Bill or note, he cannot complain of the want of regular notice of the dis- 
 honor, must be understood with considerable qualification ; and we have 
 seen, that, if a person has transferred, by mere delivery, a note payable to 
 Bearer, he is entitled to regular notice, for, though he has not indorsed, 
 he, as having been the Bearer, is to be considered as a party to the instru- 
 ment." Chitty on Bills, ch. 10, p. 474 to 476 (8th edit. 1833.) 
 
 1 Ante, § 297, 299 ; Chapman v. Lipscombe, 1 Johns. K. 294. 
 
 2 ibid. 
 
 3 Ante, § 299. 
 
 * Bayley on Bills, ch. 7, § 2, p. 302, 303 (5th edit. 1830) ; Chitty on 
 Bills, ch. 8, p. 356 (8th edit. 1833) ; Id. eh. 10, p. 471, 472; Dennis v. 
 
380 BILLS OF EXCHANGE. [CH. IX. 
 
 French Law differs from ours on this point ; for, by 
 that law it is a sufficient answer (as it seems) for the 
 omission to give notice, that the party entitled to notice 
 has not sustained any injury or prejudice by the want 
 of such notice.^ 
 
 § 307. Hitherto, we have been considering the cases, 
 in which notice of the dishonor is required to be given, 
 and the place, and the time, and the form and manner, 
 and the persons by, and to whom it is to be given. 
 The general principle to be deduced from the authori- 
 ties on this subject, is, that, prima facie, the Drawer of 
 the Bill, and every Indorser thereof, antecedent to the 
 Holder thereof at the time of the dishonor, is entitled 
 to due notice thereof, because he is presumed to be 
 entitled to bring an action, upon paying it. And, 
 therefore, if such notice be neglected, or omitted, he 
 will be discharged from all responsibility.^ But there 
 are certain exceptions from the generality of the rule, 
 which will either excuse or justify the omission, or 
 want of notice. These, we shall now proceed to con- 
 sider ; and, in doing so, we shall naturally be led to 
 consider what circumstances will not be an excuse or 
 justification of such omission or want of notice. 
 
 § 308. And, in the first place, it will be a sufficient 
 excuse for omitting to give notice to a party, that there 
 is a physical or moral impossibility of so doing. Thus, 
 for example, the absconding or absence of a party 
 
 Morrice, 3 Esp. R. 158 ; Baker v. Birch, 3 Camp. R. 107 ; Ante, § 230, 
 279,318,319,320,378,^478. 
 
 1 Post, ^ 478, and note ; Pothier de Change, n. 156, 157 ; Kemble v. 
 Mills, 1 Mann.& Grang. R. 762, note (S). 
 
 2 Bayley on Bills, ch. 7, ^ 2, p. 286 (5th edit. 1830) ; Id. p. 291, 293, 
 294. 
 
CH. IX.] NON-ACCEPTANCE OF. 381 
 
 entitled to notice, and his place of residence being 
 unknown ; ' the general prevalence of a malignant dis- 
 
 1 Mr.,Chitty, on this subject, says: "The Holder of a Bill of Ex- 
 change is also excused for not giving regular notice of its being dishonored 
 to an Indorser, of whose place of residence he is ignorant, if he use rea- 
 sonable diligence to discover where the Indorser may be found. And Lord 
 Ellenborough observed : ' When the Holder of a Bill of Exchange does 
 not know where the Indorser is to be found, it would be very hard if he 
 lost his remedy by not communicating immediate notice of the dishonor of 
 the Bill ; and I think the law lays down no such rigid rule. The Holder 
 must not allow himself to remain in a state of passive and contented 
 ignorance ; but, if he use reasonable diligence to discover the residence of 
 the Indorser, I conceive, that notice given as soon as this is discovered, is 
 due notice of the dishonor of the Bill, within the usage and custom of 
 merchants.' And, in a late case, where the traveller of A., a tradesman, 
 received, in the course of business, a promissory note, which he delivered 
 to his master, and the note having been returned to A. dishonored, the lat- 
 ter, not knowing the address of the next preceding Indorser, wrote to his 
 traveller, who was then absent from home, to inquire respecting it ; it was 
 held, that A. was not guilty of laches, although several days elapsed 
 before he received an answer, and before he gave notice to the. next party, 
 as he had used due diligence in ascertaining his address ; and two days' 
 delay, after ascertaining the residence, in forwarding notice, were excused, 
 the Holder and his attorney occupying that time. And it has been con- 
 sidered to be sufBcient, when a promissory note has been dishonored, to 
 make inquiries at the Maker's, for the residence of the Payee. But, in a 
 subsequent case, it was held, that, to excuse the not giving regular notice 
 of the dishonor of a Bill to an Indorser, it is not enough to show, that the 
 Holder, being ignorant of his residence, made inquiries upon the subject at 
 the place where the Bill was payable ; he should have inquired of every 
 other party to the Bill, and have applied to all persons of the same name 
 in the directory. Applying to the last Indorser, and last but one, the day 
 after the Bill was due, to ascertain, where the Drawer lives ; and, on his 
 not being in the way, calling again the next day, and then giving the 
 Drawer notice, has been considered sufficient ; and, when a person, upon 
 transferring a Bill or note, declines slating where he lives, but engages to 
 call upon the Acceptor to ascertain whether the Bill has been paid, he 
 thereby dispenses with the necessity of giving him any notice." Chitty 
 on Bills, ch. 10, p. 486 to 488 (8th edit.) He cites Pothier de Change, 
 n. 144; Bateman «. Joseph, 2 Camp. R. 461; S. C. 12 East, R. 433; 
 Baldwin v. Richardson, 1 Barn. & Cressw. 245; Firth r. Thrush, 8 Barn. 
 & Cressw. 387 ; Sturgess v. Derrick, Wight. R. 76 ; Beveridge v. Bur- 
 gis, 3 Camp. R. 262; Browning v. Kinnear, 1 Gow. R. 81; Phipson v. 
 
382 BILLS OF EXOHAKGE. [CH. IX. 
 
 ease, such as the yellow fever or the cholera ; ' the sud- 
 den illness or death of the Holder, or other accident 
 or inevitable casualty, or ohstruction ;® the stoppage of 
 the mail by ice, or snow, or freshets ; war, or other 
 political events, or other circumstances, interrupting 
 the intercourse between different countries, or different 
 parts of the same country ; ' or, the day being a public 
 holyday, or religious festival, or solemn fast ; * these 
 will, ordinarily, constitute a sufficient excuse for not 
 giving seasonable notice of the dishonor ; and, indeed, 
 under certain circumstances, will dispense with all 
 notice.* 
 
 Kneller, 2 Camp. R. 285 ; S. C. 1 Stark. R. 116. See also Stewart v. 
 Eden, 2 Cain. R. 121 ; Chapman v. Lipscombe, 1 Johns. R. 294 ; Blakely 
 V. Grant, 6 Mass. R. 386 ; [Harris ». Robinson, 4 Howard, Sup. Ct. R. 
 345 ; Lambert v. Ghiselin, 9 Ibid. 652.] 
 ' Tiinno V. Lague, 2 Johns. Cas. 1. 
 
 2 Chittyon Bills, ch. 8, p. 360 (8th edit. 1833) ; Id. eh. 9, p. 389, 422 ; 
 Id. ch. 10," p. 485, 524. 
 
 3 Patience v. Townley, 2 Smith, R. 223 ; Hopkirk ». Page, 2 Brook. 
 R. 20; Chitty on Bills, ch. 9, p. 389 (8th edit. 1833.) 
 
 * Lindo V. Unsworlh, 2 Camp. 602 ; Martin v. Ingersoll, 8 Pick. 1 ; 
 Ante, § 233. 
 
 5 Ante, § 234, 286 ; Chitty on Bills, ch. 8, p. 360 (8th edit. 1833) ; Id. 
 ch. 9, p. 389, 422 ; Id. ch. 10, p. 485 to 489, 524 ; Scholefield v. Bayard, 
 3 Wend. R. 488. — Mr. Chitty (p. 485) says: "A neglect or delay to 
 give, or delay in giving immediate notice, may also be excused by some 
 other circumstances. Thas, the absconding or absence of the Drawer or 
 Indorser may excuse the neglect to advise him ; ^nd the sudden illness or 
 death of the Holder, or his agent, or other accident, or forcible obstruction, 
 may constitute an excuse for the want of a regular notice to any of the 
 parties, provided it be given as soon as possible after the impediment is 
 removed. So, the circumstance of an Indorser himself having handed over 
 to the Indorsee the Bill too late to make protest, or give notice in the time 
 usually required, would preclude him from objecting to the delay. But 
 absence from home, in consequence of the dangerous illness of a near rela- 
 tive, is no excuse for not leaving there a competent agent to receive and 
 forward notice." In a note to this passage, he adds : " There is no re- 
 ported case, deciding, whether accident will excuse a delay in giving 
 notice of non-acceptance or non-payment. In Hilton v. Shepherd, 6 East, 
 
CH. IX.] NON-ACCEPTANCE OP. 383 
 
 309. The like doctrine is fully borne out by the lan- 
 guage of Pothier and Pardessus ; and, indeed, the Civil 
 
 R. 16, in notes, Garrow and Russell contended, that, whether due notice 
 has been given in reasonable time, must, from the necessity of the thing, 
 be a question of fact for the consideration of the jury ; that it depended 
 upon a thousand combinations of circumstances, which could not be re- 
 duced to rule ; if the party were taken ill, if he lost his senses, if he were 
 under duress, &c., how. could laches be imputed to him ? Suppose he 
 were prevented from giving notice wilhin the time named, by a physical 
 impossibility. Such a rule of law must depend upon the distance, upon 
 the course of the post, upon the state of the roads, upon accidents, all 
 which it is absurd to imagine. Lord Kenyon, C. J. : 'I cannot conceive 
 how this can be matter of law. I can understand, that the law should 
 require that due diligence shall be used, but that it should be laid down, 
 that the notice must be given that day or the next, or at any precise time, 
 under whatever circumstances, is, I own, beyond my comprehension.' I 
 should rather have conceived, that, whether due diligence had or had not 
 been used, was a question for the jury to consider, under all the circum- 
 stances of the accident, necessity, and the like. This, however, is a ques- 
 tion very fit to be considered, and when it goes down for trial again, I 
 shall advise the jury to find a special verdict. I find invincible objections 
 in my own mind, to consider, that the rule of law requiring due diligence, 
 is tied down to the next day.' In Darbishire v. Parker, 6 East, 3, it was 
 held, that reasonable time is a matter of law for the Court. In Poth. pi. 
 144, and Pardess. du Contrat de Change, pi. 426, it is considered, that 
 inevitable accident excuses delay, provided notice be given as soon as cir- 
 cumstances will admit ; and it is stated, that the death of a correspondent 
 to whom the Bill has been sent for presentment, and a sudden accident 
 happening to a messenger, will excuse delay. In America, the decisions 
 are contradictory, whether the prevalence of a malignant fever, or epi- 
 demic would excuse delay of notice during its continuance. Tunno v. 
 Lague, 2 Johns. Cas. 1 ; Roosevelt v. Woodhull, Anth. N. P. 35 ; Bayl. 
 (Amer. edit.) 175. In Thomp. on Bills, 548, the excuse, as to accidents, 
 is laid down as in the above text, but that the accident must not be at- 
 tributable to the Holder's fault. And in Young ». Forbes, Morrison, 1580, 
 Thompson on Bills, 483, it is stated to have been the opinion of London 
 merchants, that any cause'preventing the Holder, without his fault, from 
 protesting the Bill, as his detention by contrary winds, or sickness, would 
 excuse him from protesting." Chitty on Bills, eh. 10, p. 485, and note (/,) 
 486 (8lh edit. 1883). Scholefield v. Bayard, 3 Wend. R. 488. In Price 
 V. Young (1 McCord, So. Car. R. 339,) it seems to have been held, that 
 the death of the Holder of a Bill or note, before it became due, and no 
 administration being taken out at the time, did not excuse the want of a 
 
384 BILLS OP EXCHANGE. [CH. IX. 
 
 Law, which constitutes the basis of the general juris- 
 prudence of continental Europe, fully supports them in 
 the statement, by its declaration, Imposdbilium nulla 6b- 
 ligcctioest;^ and, among these impossibilities, constitu- 
 ting an excuse, Pothier enumerates the death or illness 
 of the Holder, or his agent.® Pardessus treats the 
 operation of the vis major as, in all cases, , a sufficient 
 excuse for a non-compliance, on the part of the Holder, 
 with the requisites of law ; and, that the like rule ap- 
 plies, where the residence or domicil of the party en- 
 titled to notice, cannot be ascertained.^ 
 
 § 310. Other excuses for the omission or want of 
 notice may arise from the peculiar relation or situation 
 of particular parties. In the first place, no Drawer is 
 entitled to require notice from the Holder, or any other 
 party, who stands in the relation of a mere accommo- 
 dation Holder or Indorser to and for him ; for, in such 
 case, the debt is primarily his own debt, and payment 
 made of the Bill, by the Holder or Indorser, is payment 
 of money for his use, and at his request ; at least, he is 
 not so entitled to notice, unless he sustains some special 
 loss or injury from the want thereof.* 
 
 due presentment for payment, and want of due notice of the dishonor. 
 But, quare, if this be consistent with the general principles of law on this 
 subject. See Chitty on Bills, ch. 8, p. 360 (8th edit. 1833) ; Id. ch. 9, 
 p. 422 ; Id. ch. 10, p. 485, 524. 
 
 1 Dig. Lib. 50, tit. 17, 1. 185. 
 
 2 Pothier de Change, n. 144. 
 
 3 Pardessus, Droit Comm. Tom. 2, art 426, 434. — Both Pothier and 
 Pardessus apply their doctrine directly to the c'ase of an omission to make 
 the protest in proper season. But their reasoning covers all other cases. 
 
 ■* See Sharp v. Bailey, 9 Barn. & Cress w. 44. See Bayley on Bills, 
 ch. 7, § 2, p. 294, 297, 298 (5th edit. 1830) ; Ex parte Heath, 2 Ves. & 
 Beam. 240.' In case of a mere accommodation acceptance, the Drawer 
 could not be entitled to notice, upon the dishonor of the Bill by non-pay- 
 ment by the Acceptor. Sharp v, Bailey, 9 Barn. & Cressw. 44. > 
 
CH. IX.] NON-ACCEPTANCE OF. 385 
 
 § 311. la the next place, if the Drawer has no right 
 whatsoever to draw the Bill, or no reasonable ground to 
 expect the Bill to be accepted, he is not deemed entitled 
 to notice of the dishonor thereof, for it was his own 
 fault to draw the same ; and, correctly speaking, he 
 cannot be said to have suffered any loss by the want of 
 notice. Thus, for example, ordinarily, if the Drawer 
 draws the Bill, without having funds in the hands of 
 the Drawee, or expectation of funds, or any arrange- 
 ment or agreement, on the part of the Drawee, to ac- 
 cept the Bill, he will not be entitled to notice, and not 
 be discharged by the want thereof.^ But, although 
 
 1 Bayley on Bills, ch. 7, ^ 2, p. 294 to 303 (5th edit. 1830) ; Chitty on 
 Bills, ch. 10, p. 477 to 480 (8lh edit. 1833) ; Rogers v. Stephens, 2 Term 
 R. 713; Bickerdike «. Bollman, 1 Term. R. 405; Legge v. Thorpe, 12 
 East, E. 171 ; Rucker v. Hillier, 3 Camp. R. 217, 16 East, R. 43; Cla- 
 ridge v. Dalton, 4 Maule & Selw. 226 ; Warden v. Tucker, 7 Mass. R. 
 452 ; Hopkirk v. Page, 2 Brock. E. 20 ; Hoffman v. Smith, 1 Caines, E. 
 157 ; Savage v. Merle, 5 Pick. R. 83 ; Valk v. Simmons, 4 Mason, R. 
 113 ; Baker U.Gallagher, 1 Wash. Cir. R.461 ; Ramddulollday v. Daneux, 
 4 Washi Cir. R. 86 ; Walwyny. St. Quintin, 1 Bos. & Pull. 652 ; Dollfus 
 V. Frosch, 1 Denio, R. 367. — Mr. Chitty has summed up the general re- 
 sult of the authorities in the following passage : " If, at any time between 
 the drawing of the Bill, and its presentment and dishonor, the Drawee 
 had some effects or property of the Drawer in his hands, though insuffi- 
 cient to pay the amount, he will, nevertheless, in general, he entitled to 
 notice of the dishonor, and the laches of the Holder will discharge him 
 from liability ; for this case differs from that, where there are no effects 
 whatever of the Drawer in the hands of the Drawee at the time, because 
 the Drawer must then know, that he is drawing upon accommodation, and 
 without arifr reasonable expectation, that the Bill will be honored ; but, if 
 he have some effects at the time, it would be dangerous and inconvenient 
 merely on account of the shifting of a balance, to hold notice not to be 
 necessary; it would be introducing a number of collateral issues upon 
 every case upon a Bill of Exchange, to examine how the accounts stood 
 between the Drawer and the Drawee, from the time the Bill was drawn 
 down to the time when it was.dishonored. For the same reason, if the 
 Drawer of a Bill of Exchange, when it is presented for acceptance, has 
 effects in the hands of the Drawees, thoagh he is indebted to them in a 
 
 B. OF EX, 33 
 
386 BILLS OP EXCHANGE. [CH. IX. 
 
 the Drawer has no funds in the hands of the Drawee, 
 yet, if he has a right to expect to have funds in the 
 
 much larger amount, and they, without his privity, have appropriated the 
 effects in their hands to the satisfaction of their debt, he is entitled to 
 notice of the dishonor. Nor is actual value in the hands of the Drawee, 
 at the time of drawing, essentially necessary to entitle the Drawer to 
 notice of dishonor of the Bill; for circumstances may exist, which would 
 give a Drawer good ground to consider, he had a right to draw a Bill 
 upon his correspondent ; as, where he had consigned effects to him, to an- 
 swer the Bill, though they may not have come to him at the time, when 
 the Bill was presented for acceptance ; to which may be added the case of 
 Bills drawn in respect of other fair mercantile agreements. So, it is no 
 excuse for not giving notice to the Drawer, that he had, in fact, no funds 
 in the hands of the Drawee, if he had made provision to have such funds 
 there, and might reasonably expect they were there ; as, where a Bill 
 was drawn in respect of a cargo shipped by the Drawer to this kingdom, 
 and in the hands of a broker, who was to pay the proceeds to the Drawee, 
 to enable him to take up the Bill, in which case notice was held requisite. 
 And, therefore, where the Drawer had sold and shipped goods to the 
 Drawee, and drew the Bill before they had arrived, and the Drawee, not 
 having received the Bill of lading, refused to accept the goods, because 
 they were damaged, and who refused to accept the Bill, it was decided, 
 that the Drawer was discharged for want of notice. But, if the vendor of 
 goods, sold upon credit, draws upon the purchaser a Bill, which would 
 be due long before the expiration of the stipulated credit, he is not entitled 
 to notice of the dishonor ; because he had no reasonable expectation that 
 the Drawee would honor the Bill, but, on the contrary, a pretty clear as- 
 surance that it would be dishonored. And, in one case, it seems to have 
 been suggested, that the want of notice is no defence, where the defend- 
 ant had not, at the time the Bill became due, sufficient effects, although 
 he had such when the Bill was drawn ; as^ where the party, having j6712 
 at his banker's, accepted a Bill for £300, payable there, but, when due, he 
 had only £il ; in which case, notice to him was considered unnecessary ; 
 but the decision proceeded on the ground, that an Acceptor is not entitled 
 to notice, and, therefore, cannot be relied upon as altering tne general 
 rule. Where the Drawer of a Bill of Exchange had no effects in the 
 hands of the Acceptor, from the time of drawing the Bill till it became 
 due, but the Acceptor had received from the Drawer, prior to this Bill, on 
 which the action was brought, acceptances of the Drawer, upon which he 
 had raised money, some of which acceptances had been returned dis- 
 honored, and others were outstanding, it was held, that the Drawer was 
 entitled to notice of dishonor of the Bill. And it should seem, that, al- 
 though the Drawer, or other party, may not have advanced money or 
 
CH. IX.] NON-ACCEPTANCE OF. 387 
 
 hands of the Drawee, to meet the Bill, or if he has a 
 right to expect the Bill to be accepted by the Drawee, 
 in consequence of an agreement or arrangement with 
 him ; or, if, upon taking up the Bill, he would be enti- 
 tled to sue the Drawee, or any other party on the Bill ; 
 as, if he be an accommodation Drawer for the Drawee, 
 or Payee, or any subsequent Indorsee ; ^ then, and in 
 every such case, he is entitled to strict notice of the 
 dishonor.^ The distinction between the cases may 
 seem, at first view, to be somewhat artificial, and not 
 altogether satisfactory. But it is founded upon this 
 consideration, that, in the latter case, the Drawer draws 
 the Bill in good faith, and has reasonable grounds to be- 
 lieve that it will be honored ; and, therefore, he may 
 well insist upon a punctual discharge of duty, on the 
 part of the Holder ; whereas, in the former oases, it is 
 his own fraud or folly to draw a Bill, which he has no 
 
 goods to the Drawee, yet, if he has deposited short Bills, or policies, or 
 even title-deeds, in his hands, or has accepted cross Bills, and had reason- 
 able ground to expect that the Drawee would accept or pay in respect 
 thereof, he is entitled to notice of the dishonor." Chitty on Bills, ch. 10, 
 p. 477 to 480 (8th edit. 1833) ; Id. ch. 8, p. 358, 359. The leading cases 
 are also collected in Bayley on Bills, ch. 7, § 3, p. 294 to 302 (5th edit. 
 1830.) 
 
 1 Chitty on Bills, ch. 10, p. 481 (8th edit. 1833); Bayley on Bills, ch. 
 7, § 2, p. 305 to 310 (5th edit. 1830.) 
 
 2 Bayley on Bills, ch. 7, § 2, p. 296 to 302 (5th edit. 1830) ; Chitty on 
 Bills, ch. 8, p. 356 to 358 (8th edit. 1833) ; Id. ch. 10, p. 477 to 480 ; 
 Rucker v. Hillier, 3 Camp. R. 217, 16 East, R. 43 ; Ex parte Heath, 2 
 Ves. & Beam. 240 ; Cory v. Scott, 3 Barn. & Aid. 619 ; Norton v. Picker- 
 ing, 8 Barn. & Cressw. 610 ; Robins v. Gibson, 3 Camp. R. 334 ; Orr v. 
 Magennis, 7 East, R. 559 ; Blackham v. Doren, 2 Camp. R. 503 ; Brown 
 V. Maffey, 15 East, R. 216 ; Legge v. Thorpe, 12 East, K. 171 ; Ham- 
 mond V. Dufrene, 3 Camp. R. 145 ; Thackray v. Blackett, 3 Camp. R. 164 ;• 
 Stanton D. Blossom, 14 Mass. R. 116 ; French's Executors v. Bank of 
 Columbia, 4 Cranch, R. 141 ; Robinson v. Ames, 20 Johns. R. 146; Gros- 
 venor v. Stone, 8 Pick. R. 83 ; Campbell v. Pettengill, 7 Greenl. R. 126. 
 
388 BILLS OP EXCHANGE. [CH. IX. 
 
 reasonable ground to expect to be honored ; and, there- 
 fore, he may well impute the injury, if any, to himself, 
 to his own laches, and to his having misled the Holder.' 
 And it will be no sufficient answer in any such case, 
 to say, that the Drawer has not sustained any injury 
 or prejudice by the want of notice.® The Drawer will, 
 however, be entitled to strict notice, where he has any 
 funds in the hands of the Drawee, although they are 
 not equal to the sum mentioned in the Bill.^ Nay, he 
 will be entitled to strict notice, if he has funds in the 
 hands of the Drawee, although the latter represented 
 to the Drawer, at the time the Bill was drawn, that he 
 should not be able to provide for it, and that the Draw- 
 er, must provide for it.* 
 
 1 It has oftenbeen lamented by Judges, that any exception, arising from 
 the want of funds in the hands of the Drawee, has been admitted into the 
 law. The ground, originally stated, why notice, in general, is required to 
 be given 'to the Drawer, is, that he may withdraw his funds from the hands 
 of the Drawee, and that otherwise a loss might happen to him from his 
 want of notice. But it was then said, that, where the Drawer has no 
 funds in the hands of the Drawee, he cannot be injured ; and, therefore, 
 is not entitled to notice. Bickerdilie v. BoUman, 1 Term R. 405. We 
 see, from the text, that there are other cases, where the Drawer may sus- 
 tain an injury, besides cases, where the Drawee has funds. See also Orr 
 V. Magennis, 7 East, R. 359; Brown v. Maffey, 15 East, R. 216; Legge 
 K. Thorpe, 12 East, R. 171. 
 
 2 Ante, !} 275 ; Bayley on Bills, ch. 7, § 2, p. 302, 303 {5th edit. 
 1830) ; Chitty on Bills, ch. 8, p. 356 (8ih edit. 1833) ; Hill v. Martin, 12 
 Martin, R. 177. — Mr. Justice Blaeksione, in his Commentaries (Vol. 2, 
 p. 469) seems to suppose, that the Drawer, or other party to be charged, 
 must have suffered some damage. His language is; " But, if no protest 
 be notified to the Drawer, and any damage accrues by such neglect, it shall 
 fall on the Holder of the Bill." But this is not a correct statement of the 
 doctrine. 
 
 3 Ibid. ; Chitty on Bills, ch. 10, p. 477, 478 (8th edit. 1833). 
 
 4 Ibid. p. 477, 483; Bayley on Bills, ch. 7, § 2, p. 303 to 305 (5th edit. 
 1839) ; Prideaux v. Collier, 2 Stark. R. 57; Staples v. Okines, 1 Esp. R. 
 332 ; Clegg v. Cotton, 3 Bos. & Pull. 232. 
 
CH. IX.J NON-ACCEPTANCE OF. 389 
 
 § 312. The proof, that the Drawer had no effects in 
 the hands of the Drawee, only affords & prima fade ex- 
 cuse for the want of due notice of the dishonor ; and it 
 may be rebutted by its appearing, that the Drawer, on 
 taking up the Bill, would be entitled to some remedy 
 over against some other party ; as, a right to sue the 
 Acceptor, or any other party, or by showing that he 
 has been actually prejudiced by the want of notice ; as, 
 if the Bill were drawn for the accommodation of the Ac- 
 ceptor, or the Payee, or any Indorser. And there is a 
 distinction as to the necessity for notice to the Drawer 
 of a dishonored Bill, when accepted for the accommo- 
 dation of the Drawer, between the case of a single 
 transaction, and the case of various dealings, the excess 
 being for the accommodation of the Drawer or Accept- 
 or. In the latter case, notice is equally necessary, 
 without actual effects. So, where W. drew a Bill upon 
 a person, to whom he had been sending goods for sale, 
 and who a'ccepted the BUI, neither party knowing the 
 state of accounts between them, and it turned out, that 
 W. at the time was indebted to the Drawee, the Court 
 held, that this was not to be considered as an accom- 
 modation Bill within the acceptation of that term, and, 
 consequently, that there was no implied contract of in- 
 demnity as to costs.^ 
 
 § 313. Upon the same general ground, that the 
 Drawer has sustained, and can sustain, no loss, or 
 
 1 Bigaall v. Andrews, 7 Bing. R. 217 ; Chitty on Bills, ch. 8, p. 356 
 to 358, 368, 369 (8th edit. 1833) ; Id. ch. 10, p. 472, 473, 480, 481 ; 
 Brown v. Maffey, 15 East, K. 216 ; Cory v. Scott, 3 Barn. & Aid. 619 ; 
 Norton v. Pickering, 8 Barn. & Cressw. 610; Bayley on Bills, ch. 7, 
 § 2, p. 297, 306 to 308 (5th edit. 1830) ; Ex parte Heath, 2 Ves. & 
 Beam. 240 ; Goodall v. DoUey, 1 Term R. 713 ; Wilks v. Jacks, Peake, 
 R. 202. 
 
 33* 
 
390 BILLS OF EXCHANGE. [CH. IX. 
 
 injury, or prejudice, by the want of notice of the dis- 
 honor, he -will be held liable, notwithstanding the want 
 of such notice, if, having funds in the hands of the 
 Drawee, he voluntarily withdraws them, or if, having 
 no funds in the hands of the Drawee, but having them 
 on their way to reach him, and to be applied to the 
 discharge of the Bill, he intercepts and stops them, so 
 as to prevent them from being received by the Drawee.^ 
 The same doctrine has been held to apply, where the 
 Drawer, before acceptance, orders the Drawee not to 
 accept the Bill.^ 
 
 § 313 a. In like manner, if the Drawer and Acceptor 
 of the Bill are either general partners or special part- 
 ners in the adventure of which the Bill constitutes a 
 part, notice of the dishonor and non-payment of the 
 Bill need not be given to the Drawer, for the know- 
 ledge of one partner is the knowledge of the other, and 
 notice to one partner is notice to the other.^ 
 
 § 314. As to Indorsers, the like considerations do 
 not necessarily or ordinarily apply to them, as apply to 
 the Drawer, who draws without funds, or has no right 
 to draw ; for the Indorsers are entitled to strict notice, 
 whether the Drawer has drawn the Bill with or with- 
 out funds, or whether he had reasonable ground to draw 
 it or not. For an Indorser ordinarily stands in a very 
 
 1 Bayley on Bills, ch. 7, § 2, p. 296 (5th edit. 1830) ; Rucker v. Hil- 
 lier, 3 Camp. R. 217, 16 East, K. 43 ; Lilley v. Miller, 2 Nott & McCord, 
 257, note ; Valk v. Simmone, 3 Mason, R. 113; Conroy «. Warren, 
 3 Johns. Cas. 259 ; Murray v. Judah, 6 Cowen, K. 484; Rhett r. Poe, 
 2 How. Sup. Ct. R. 457 ; DoUfus v. Frosch, 1 Denio, R. 367. 
 
 s Bird V. McDowell, 2 Nott & McCord, 254. 
 
 3 Rhett V. Poe, 2 How. Sup. Ct. R. 457, 483 ; Porthouse ». Parker, 
 1 Camp. R. 82 ; Bignold v. Waterhonse, 1 M. & Selw. 259 ; Whitney v. 
 Sterling, 14 Johns. R. 215 ; Gowan v. Jackson, 20 Johns. R, 176. 
 
CH. IX.] NON-ACCEPTANCE OP. 391 
 
 diiferent relation to the Bill from the Drawer ; for he 
 is considered as in the nature of a surety, or guarantor 
 of its payment upon due presentment, and is not pre- 
 sumed to know any thing about the arrangements 
 between the Drawer and Drawee. His engagement is, 
 therefore, treated as strictly collateral and conditional, 
 and due notice is one condition, upon which his liabi- 
 lity attaches.^ But, if the Indorser is the real party to 
 the Bill, for whose accommodation alone it is drawn by 
 the Drawer, and is to be accepted by the Drawee, the 
 latter having no fun^ds of either in his hands, it may be 
 different ; and no notice may be required in order to 
 charge him.^ 
 
 § 315. The old French Law seems, in some respects, 
 different from ours upon this subject. If the Drawee 
 has no funds of the Drawer in his hands at the time 
 when the Bill is drawn, it seems that the Drawer is not 
 entitled to strict notice of the dishonor by non-accept- 
 ance ; and, unless he can show some injury or preju- 
 dice by the ^mission to give him notice of the dishonor, 
 the want of it will not exonerate him from liability to 
 the Holder.^ The same rule seems also to have been 
 
 1 Bayley on Bills, ch. 7, ^ 2, p. 306 to 309 (5th edit. 1830) ; Barton v. 
 Baker, I Serg. & Rawle, 334 ; Warder v. Tucker, 7 Mass. R. 452 ; Den- 
 niston v. Imbrie, 3 Wash. Cir. R. 401 ; Ramddulollday v. Daneux 4 
 Wash. Cir. R. 61. 
 
 2 See Chitty on Bills, ch. 10, p. 470, 471, 481 (8th edit. 1833) ; Id. 
 p. 473 ; Bayley on Bills, ch. 7, § 2, p. 297 (5th edit. 1630) ; Id. p. 306, 
 307; Ex parte Heath, 2 Ves. & Beaoa. 240; Cory v. Scott, 3'Barn. & 
 Aid. 619 ; Norton v. Pickering, 8 Barn. & Cressw. 610 ; Brown v. Maf- 
 fey, 15 East, R. 216; Agan u. McManus, 11 Johns. R. 180 ; French's 
 Executors v. Bank of Columbia, 4 Cranch, R. 141. 
 
 3 Pothiet de Change, n, 156 to 158 ; Jousse, sur I'Ord, 1673, tit. 5 
 art. 16, p. 109 ; Pardessus, Droit Comtn. Tom. 2, art. 424, 435 ; Post 
 § 373, § 393, ^ 478. ' 
 
392 BILLS OF EXCHANGE. [CH. IX. 
 
 applied to the Indorsers in case the Drawee had not 
 any funds in his hands belonging to them or to the 
 Drawer ; for then they remained liable, even although 
 no notice of the dishonor had been given to them unless 
 they could show some injury or prejudice to themselves 
 by reason of the omission.^ Pothier insists, however, 
 that there ought to be a distinction made in favor of 
 the Indorsers, where the Bill has been accepted ; for, 
 thereby, the Acceptor admits himself to be their debtor, 
 and they, therefore, have an interest in having notice 
 of the dishonor in order to take measures against him.^ 
 The modern Code of Commerce has in some degree 
 modified these doctrines. The Drawer is never liable, 
 if he has made provision for the payment of the Bill at 
 its maturity, unless he has received due notice of the 
 dishonor ; but, if he has made no provision, then he 
 cannot object that he has not had due notice.' If 
 the Drawer, or any of the Indorsers, after the notice of 
 the dishonor has been given, has received in account, 
 coinpensation, (set-oflf,) or otherwise, the fupds destined 
 for the payment of the Bill, that will make him liable 
 thereon, notwithstanding the want of due notice.* On 
 the other hand, (as it should seem,) the Indorsers, with 
 the exception of the cases last stated, are entitled to 
 strict notice, and are absolved from all liability by the 
 want of it, whether the drawer has made provision for 
 
 1 Pothier de Change, n. 156 to 158. 
 
 2 Ibid, n. 158. ' 
 
 3 Code de Comm. ait, 117, 170 ; Locr6, Esprit du Code de Comm. art. 
 117,170, Tom. 1, p. 384, 626, 527; Pardessue, Droit Comm. Tom. 2, 
 art. 435. 
 
 * Code de Comm. art. 170, 171 ; Locr6, Esprit du Code de Comm. 
 Tom. 1, p. 526, 527, art. 170, 171 ; Pardessus, Droit Comm. Tom. 2, art. 
 435. 
 
CH. IX.] NON-ACCEPTANCE OF. 393 
 
 the Bill or not, or whether the Bill has been accepted 
 or not, or whether the Indorsers have received any 
 injury or prejudice from the want of notice or not.' 
 
 § 316. There are other cases in which an Indorser 
 would not be entitled to strict notice. As, for example, 
 if he is a mere accommodation Indorser, and, at the 
 time of his indorsement, he has received funds of the 
 Drawer to pay the Bill and secure him an ample 
 indemnity, he will not be permitted to object that he 
 has not received due notice of the dishonor of the Bill ; 
 for, in such a case, he cannot complain of any loss or 
 injury from want of notice, since he has funds in his 
 own hands to meet the payment.^ If he has received 
 funds from the Drawer for a part payment only, he will 
 still be entitled to strict notice ; but at the same time, 
 although no such notice has been given, the Holder will 
 be entitled to the funds.^ 
 
 § 317. It follows, a fortiori, that, if, by prior arrange- 
 ments between any of the parties, the necessity of 
 
 1 Pardessus, Droit Coram. Tom. 2, art. 435. But see Sautayra, Comm. 
 Code de Comm. art. 117; Post, % 373, % 393. But see Post, § 478. 
 
 2 Chiity on Bills, cii. 8, p. 356 (8th edit. 1833) ; Id. ch. 10, p. 472, 
 473, 481, 482; Bayley on Bills, cii. 7, % 2, p. 310 (5th edit. 1830) ; Cor- 
 ney v. Da Costa, 1 Esp. R. 303. See Whitfield v. Savage, 2 Bos. & 
 Pull. 377; Rogers v. Stephens, 2 Term R. 713; Mattel t;. Tureand, 
 18 Martin, R! 117. But see Kramer v. Sandford, 4 Watts & Serg. 328. 
 
 3 Bayley on Bills, ch. 7, ^ 2, p. 303 (5lh edit. 1830) ; Chitty on Bills, 
 ch. 8, p. 368 (8th edit. 1833) ; Id. ch. 10, p. 489 ; Baker v. Birch, 
 3 Camp. R. 107; Corney v. Da Costa, 1 Esp. R. 303. See Whitefield v. 
 Savage, 2 Bos. & Pull. 277. — " It is no excuse for not giving notice to 
 the Drawer, that, on an apprehension that the Bill would be dishonored, 
 he lodged other money, which he had of the Drawee's, in the hands of the 
 Indorser, on an undertaking by the Indorser, that he would return it when- 
 ever it should appear that he was exonerated from the Bill ; for his hav- 
 ing other money of the Drawee's dues not entitle him to apply it to the 
 dishonored Bill unless he had notice of the dishonor." Chitty on Bills, 
 ch. 10, p. 476 (8ih edit. 1833) ; Clegg v. Cotton, 3 Bos. & Pull. 239. 
 
394 BILLS OF EXCHANGE. [cH. IX. 
 
 notice has been expressly or impliedly dispensed with, 
 as between these parties no notice need be given, and 
 the want of it is entirely excused ; for here the maxim 
 strictly applies : Quilihd potest renunciare juri pro se in- 
 troducto} The same doctrine, founded upon the same 
 general principle pervades the French Law ; ® • and, in- 
 deed, it is so reasonable, that it should seem to be 
 founded in "the very elements of universal jurispru- 
 dence. 
 
 § 318. On the other hand, let us consider some of 
 the cases, in which it has been held, that the want of 
 notice is fatal, and not excused on the part of the 
 
 1 2 Co. Inst. 183 ; Wingate, Max. 483 ; Norton v. Lewis, 2 Connect. R. 
 478 ; Leonard v. Gary, 10 VVend. R. 504 ; Taunton Bank v. Richardson, 
 5 Pick. 436. Bat see Cliitty on Bills, ch. 10, p. 483, 484 (8th edit. 
 1833) ; Central Bank v. Davis, 19 Pick. 373, 375 ; Andrews v. Boyd, 3 
 Mete. R. 434. — Some of the cases upon this subject stand upon very 
 nice grounds, and are not, perhaps, always easily reconcilable with the 
 general principle here stated. In Free v. Hawkins, 8 Taunt. R. 92, it 
 was held, that evidence of a parol agreement between the Holder and the 
 Indorser of a promissory note, at the time of making and indorsing it, that 
 payment should not be demanded of the Maker of the note, at the time 
 when it became due, nor until after the sale of certain estates of the Maker, 
 was held inadmissible, because it controlled and varied the legal obliga- 
 tions of the Indorser. Chitty on Bills, ch. 10, p. 483 (8th edit. 1833) ; 
 Bayley on Bills, ch. 12, p. 491, 492 (5th edit.' 1830.) The same point 
 was, in effect, adjudged in Woodbridge v. Spooner, 3 Barn. & Aid. 233 ; 
 Rawson v. Walker, 1 Stark. R. 361 ; Hoare v. Graham, 3 Camp. R. 57 ; 
 Bank of U. S. v. Dunn, 6 Peters, R. 51 ; Spring v. Lobett, U Pick. R. 
 417 ; Trustees in Hanson v. Stetson, 5 Pick. R. 506. But there is some 
 difficulty in reconciling this doctrine with that promulgated by the Su- 
 preme Court of the United States, in the case of Renner v. Bank of Co- 
 lumbia, 9 Wheat. R. 581. But parol evidence of a bargain, after a note 
 or Bill has been given or transferred, may be admissible to establish a 
 waiver of notice, or a valid agreement to postpone payment, if founded on 
 a sufficient consideration. Bayley on Bills, ch. 12, p. 493 (dth edit. 1830) ; 
 Hoare v. Graham, 3 Camp. R. 57 ; Gibson v. Scott, 2 Stark. R. 286 ; 
 Story, Prom. Notes, § 275. 
 
 ~ Pardesaus, Droit Comm. Tom. 2, art. 425, 436. 
 
CH. IX.j NON-ACCEPTANCE OF, 395 
 
 Holder. And, in the first place, it may be stated, that 
 neither the death, nor neither the bankruptcy, nor the 
 known stoppage or insolvency of the Drawee, will con- 
 stitute any sufficient excuse for not making a due pre- 
 sentment of the Bill, or for not giving due notice of the 
 dishonor of the Bill.^ Neither is it any excuse for the 
 want of notice, that the' Drawee or his place of resi- 
 dence could not be found ; nor that he was imprisoned -^ 
 nor, that the Drawer or Drawee are non-existing or fic- 
 titious persons, and their names were used for purposes 
 
 1 Bayley on Bills, ch. 7, § 1, p. 251, 252 (5th edit. 1830); Id. ch. 7, § 
 2, p. 302, 306 to 309 ; Chitty on Bills, ch. 8, p. 360 (8th edit. 1833) ; IS. 
 ch. 10, p. 482, 525; Russell v. LangstafiFe, Dong. R. 497, 515; Esdaileu. 
 Sowerby, 11 East, R. 114 ; Ex parte Wilson, 11 Ves. 412 ; Whitfield v. 
 Savage, 2 Bos. & Pull. 279 ; Rohde v. Proctor, 4 Barn. & Cressw. 517 ; 
 Boultbee v. Stubbs, 18 Ves. 21 ; Nicholson v. Gouthit, 2 H. Black. 609 ; 
 Camidge v. AUenby, 6 Barn. & Cressw. 682 ; Dennis v. Morrice, 3 Esp. 
 R. 158. — Mr. Chitty states the reason of this doctrine as follows : " The 
 death, known bankruptcy, or known insolvency, of the Drawee, or Ac- 
 ceptor, or Maker of a note, or his being in prison, or the notorious stop- 
 ping payment of a banker, constitute no excuses, either at law, or in 
 equity, or in bankruptcy, for the neglect to give due notice of non-ac- 
 ceptance, or non-payment ; because many means may remain of obtaining 
 payment by the assistance of friends, or otherwise, of which it is reason- 
 able, that the Drawer and Indorsers should have the opportunity of avail- 
 ing themselves, and it is not competent to the Holders to show, that the 
 delay in giving notice has not, in fact, been prejudicial. It has been 
 observed, that it sounds harsh, that the known bankruptcy of the Acceptor 
 should not be deemed equivalent to a demand, or notice, but the role is 
 too strong to be dispensed with ; and a Holder of a Bill has no right to 
 judge, what may be the remedies over of a party liable on a Bill. It is no 
 excuse, that the chance of obtaining anything upon the remedy over was 
 hopeless, — that the person or persons against whom that remedy would 
 apply, were insolvent, or bankrupts, or had absconded. Parties are enti- 
 tled to have that chance offered to them ; and, if they are abridged of it, 
 the law, which is founded upon the usage and custom of merchants, says, 
 they are discharged." Chitty on Bills, ch. 10, p. 482, 483 (8th edit. 
 1833.) 
 
 2 Ibid. ; Price v. Young, 1 McCord, R. 339 ; Haynes v. Birks, 3 Bos. & 
 Pull. 601. 
 
396 BILLS OF EXCHANaE, [CH. IX. 
 
 of fraud, unless the Payee or Indorser, who is sued, was 
 privy to the fraud.' 
 
 § 319. The French Law, in like manner, requires a 
 protest to be made, and notice to be given by the 
 Holder, notwithstanding the bankruptcy, or insolvency, 
 or death of the Drawee.® It is true, that, in the 
 French Law, the rule is directly applied to cases of 
 non-payment of the Bill ; but there does not seem any 
 good reason to suppose, that it is not equally applied to 
 cases of non-acceptance. 
 
 § 320. The cases already mentioned, are cases of 
 excuse on the part of the Holder, for want of notice. 
 But the party, entitled to notice, may, if he please, 
 waive his right to notice, and render himself responsi- 
 ble for the dishonor of the Bill, notwithstanding the 
 want of any notice whatsoever, or of any regular notice. 
 Let us, then, consider, in what cases such a waiver is 
 to be inferred, and under what circumstances it is obli- 
 gatory. In the first place, then, such a waiver may 
 arise from an original agreement made with the Holder, 
 contemporaneous with the citation or transfer of the 
 Bill. Thus, for example, if the Drawer or Indorser of 
 the Bill should, at the time of making or indorsing it, 
 write on the same an express waiver or dispensation of 
 notice to him of the dishonor, that will relieve the 
 Holder from all responsibility of giving notice. But 
 the language must be very clear to produce such an 
 effect, and the intention will not be inferred from equi- 
 vocal words, or words susceptible of a different inter- 
 
 I Bayley on Bills, ch. 7, § 3, p. 310 (5th edit. 1830) ; Leach v. Hewitt, 
 4 Taant. R. 731. 
 3 Code de Comm. art. 163 ; Pardessus, Droit Comm. Tom. 2, art. 424. 
 
CH. IX.] * NON-ACCEPTANCE OF. 397 
 
 pretation.^ lu the next place, a waiver may be implied 
 from subsequent circumstances. In general, it may be 
 stated, that a party who is once discharged, by want of 
 notice, or other laches, on the part of the Holder, is 
 always discharged, and he cannot be made again liable, 
 unless by his own voluntary act.® But, as has been 
 already suggested, he may waive his right to take the 
 exception, and confirm his original obligation. If he 
 makes such a waiver, in ignorance of ,the facts, he will 
 not be bound thereby.* But, if he makes it with a full 
 knowledge of all the facts, but under a mistake of the 
 law, he will be bound thereby.* And, under such cir- 
 
 1 Post, § 371; Lane v. Steward, 2 Appleton, R. 98 ; Coddington «. 
 Davis, 1 Comstock, R. 186 ; S. C. 3 Denio, R. 17. 
 
 2 Bayley on Bills, ch. 7, §, 2, p. 312 (5th edit. 1830) ; Chitty on 
 Bills, ch. 10, p. 541 (8th edit. 1833.) 
 
 3 Chitty on Bills, ch. 8, p. 373 (8th edit. 1833) ; Id. ch. 10, p. 533 to 
 536, 538, 539 ; Bayley on Bills, ch. 7, ^ 2, p. 290 to 294 (5th edit. 1830); 
 Blessard v. Hirst, 5 Burr. R. 2670 ; Goodall v. Dolley, 1 Term. R. 712 ; 
 Stevens v. Lynch, 12 East, R. 38 ; Jones v. Savage, 6 Wend. R. 658 ; 
 Miller w. Hackley, 5 Johns. R. 385; May o. Coffin, 4 Mass. R. 341 ; 
 Warder v. Tucker, 7 Mass. R. 432 ; Canal Bank v. Bank of Albany, 1 
 Hill, N. Y. R. 287. 
 
 4 Chitty on Bills, ch. 10, p. 534 to 536 (8th edit. 1833) ; Bilbie jj.Lum- 
 ley, 2 East, R. 469; Story on Eq. Jurisp. ^ 111, 116, 137 ; Stewart v. 
 Stewart, 6 Clark & Finell. R. 964 to 971 ; Richter v. Selin, 8 Serg. & 
 Rawl. 438. — On this subject, Mr. Chitty says : " It seems to have been 
 once considered, that a misapprehension of the legal liability would pre- 
 vent a subsequent promise to pay from being obligatory, and that even 
 money paid in pursuance of such promise, might be recovered back. But 
 from subsequent cases it appears, that such doctrine is not law, and that 
 money, paid by one knowing (or having the means of such knowledge in 
 his power) all the circumstances, cannot, unless there has been deceit or 
 fraud on the part of the Holder, be recovered back again on account of 
 such payment having been made under an ignorance of the law, although 
 the party paying expressly declared, that he paid without prejudice. And, 
 as an objection made by a Drawer or Indorser to pay the Bill, on the 
 ground of the want of notice, is siricti juris, and frequently does not 
 meet the justice of the case, it is to be inferred from the same cases, and 
 
 B. OF EX. 31 
 
398 BILLS OF EXCHANGE. * [CH. IX. 
 
 eumstances, it will make no difference, whether the 
 party has paid the Bill under a mistake of law, or has 
 only promised to pay the Bill.-' Indeed, a promise, by 
 the partfT entitled to notice, to pay the Bill, is deemed 
 a full and complete waiver of the want of due notice ; 
 and payment of a part of the money due on the Bill 
 will have the same effect.^ But, then, in all cases of 
 
 it is, indeed, now clearly established, that even a mere promise to pay, 
 made after notice of the facts, and laches of the Holder, would be binding 
 though the party making it misapprehended the law. Therefore, where 
 the Drawer of a Bill of Exchange, knowing, that time had been given 
 by the Holder to the Acceptor, but apprehending, that he was still liable 
 upon the Bill in default 6f the Acceptor, three months after it was due, 
 said, 'I know I am liable, and, if the Acceptor does not pay it, I will,' it 
 was adjudged, that he was bound by such promise ; and the Court said, 
 ' that the cases, above referred to, proceeded on the mistake of the person 
 paying the money under an ignorance or misconception of the facts of the 
 case, but, (hat, in the principal case, the defendant had made the pro- 
 mise with a full knowledge of the circumstances, three months after the 
 Bill had been dishonored, and could not now defend himself upon the 
 ground of his ignorance of law, when he made the promise." Chitty on 
 Bills, ch. 10, p. 536, 537 (8th edit. 1833.) 
 
 1 Ibid. 
 
 2 Ibid. ; Bayley on Bills, ch. 7, p. 291 to 293 (5lh edit. 1830) ; 
 Vaughan v. Fuller, 2 Str. R. 1246 ; Rogers v. Stephens, 2 Term R. 713 ; 
 Wilkes V. Jacks, Peake, R. 203 ; Blessard v. Hirst, 5 Burr. R. 2670 ; 
 Horford v. Wilson, 1 Taunt. R. 12 ; Selwyn, Nisi Prius, Vol. 1, p. 52 
 (10th edit. 1842) ; 7 East, R. 236, note ; Whitaker i>. Morris, 1 Esp. R. 
 58, cited in Chitty on Bills, ch. 10, p. 533, note, 8th edit. ; Id. p. 500, 9th 
 edit., as being reported in 1 Esp. R. 58, but it is a mistake ; Lundie t;. 
 Robertson, 7 East, K. 231 ; Wood v. Brown, 1 Stark. R. 217. — Mr. 
 Chitty says : " The consequences, however, of a neglect to give notice of 
 non-payment of a Bill or note, or to protest a foreign Bill, may be waived 
 by the person entitled to take advantage of them. Thus, it has been de- 
 cided, that a payment of a part, or a promise to pay the whole or part, or 
 to ' see it paid ; ' or an acknowledgment, that ' it must be paid,' or a pro- 
 mise, that ' he will set the matter to rights ; ' or a qualified promise, or a 
 mere unaccepted offer of a composition with other creditors, made by the 
 person insisting on the want of notice (after he was aware of the laches) 
 to the Holder of a Bill, amounts to a waiver of the consequence of the 
 laches of the Holder, and admits hia right of action." He immediately 
 
CH. IX.] NON-ACCEPTANCE OF. 399 
 
 this sort, the promise must be equivocal, and amount to 
 an admission of the right of the Holder; or the act 
 
 adds, what, in a practical view, with reference to the declaration and 
 pleadings in a suit, may be most material : " And, in some of the cases 
 upon this subject, the effect of such partial payment, or promise to pay, 
 has been carried still further, and been considered not merely as a waiver 
 of the right to object to the laches, but even as an admission that the Bill 
 or note had, in fact, been regularly presented and protested, and that due 
 notice of dishonor had been given ; and this, even in cases, where the 
 party, who paid or promised, afterwards stated, that, in fact, he had not 
 had due notice, &c. ; because it is to be inferred, that the part payment, 
 or promise to pay, would not have been made, unless all circumstances 
 had concurred to subject the party to liability, and induce him to make 
 such payment or promise. Thus, where an Indorsee, three months after 
 a Bill became due, demanded payment of the Indorser, who first promised 
 to pay it, if he would call again with the account, and afterwards said, that 
 he had not had regular notice, but, as the debt was justly due, he would pay 
 it ; it was held, that the first conversation, being an absolute promise to pay 
 the Bill, was, prima facie, an admission, that the Bill had been presented 
 to the Acceptor for payment in due time, and had been dishonored, and 
 that due notice had been given of it to the Indorser, and superseded the 
 necessity of other proof, to satisfy those averments in the declaration ; and 
 that the second conversation only limited the inference from the former, so 
 far as the want of regular notice of the dishonor to the defendant went, 
 which objection he then waived. So, where the Drawer of a foreign 
 Bill, upon being applied to for payment, said, ' My affairs are at this 
 moment deranged, but I shall be glad to pay it, as soon as my accounts 
 with my agents are cleared,' it was decided, that it was unnecessary to 
 prove the averment of the protest of the Bill. And, in an action by the 
 Indorsee against the Drawer of a Bill, the plaintiff did not prove any 
 notice of dishonor to the defendant, but gave, in evidence, an agreement 
 made between a prior Indorser and the Drawer, after the Bill became due, 
 which recited, that the defendant had drawn, amongst others, the Bill in 
 question, that it was over-due, and ought to be in the hands of the prior 
 Indorser, and that it was agreed, the latter should take the money due to 
 him upon the Bill by instalments; it was held, that this was evidence, 
 that the Drawer was, at that time, liable to pay the Bill, and dispensed 
 with other proof of notice of dishonor. Again, where, in an action against 
 the Drawer, in lieu of proof of actual notice, the defendant's letter was 
 proved, stating, ' that he was an accommodation Drawer, and that the Bill 
 would be paid before next term,' though not saying, ' by defendant,' Lord 
 EUenborough said, ' The defendant does not rely upon the want of notice, 
 
400 BILLS OF EXCHANGE. [CH. IX. 
 
 done must be of a nature clearly importing a like ad- 
 mission of his right. If it be defective in either respect, 
 or if it be a conditional offer of payment, not accepted, 
 then, and in such a case, the Holder has no right to in- 
 sist upon it as a -yvaiver.^ So, if the promise be qualified, 
 it must be received with its qualifications, and cannot 
 
 but undertakes, that the Bill will be duly paid before the term, either 
 by himself or the Acceptor. I think the evidence sufficient.' " Chitty on 
 Bills, ch. 10, p. 533 to 536 (8lh edit. 1833.) It is probably too late to 
 attempt to modify or recall the doctrine in respect to a waiver of notice, by 
 a new promise to pay the Bill. When such a promise is made, after the 
 party is discharged in point of law, it would seem, upon principle, difficult 
 to perceive how it can, or ought to be binding, if there is not a new and 
 sufficient consideration to support it, for a moral obligation is not sufficient. 
 (See Borradaile v. Lowe, 4 Taunt. K. 93.) , And there might, originally, 
 have been a good ground to say, that the money, if paid by mistake of 
 law, ought not to be recovered back, if, in point of moral propriety, it 
 could be retained ; and to have held, at the same time, that a mere promise 
 to pay, under a mistake of law, was not of binding obligation, so as to be 
 enforced in a suit. And, upon the other point, as a matter of evidence, a 
 promise to pay may, in the absence of all controlling circumstances, be, 
 prima facie, sufficient evidence of a regular protest and notice. But, when 
 the fact is made out, that there was no protest or notice, it seems difficult 
 to perceive, upon what ground it can be maintained, that the promise to 
 pay, with knowledge of the fact, can be evidence of a protest and notice, 
 which never existed. Mr. Bayley (on Bills, ch. 9, p. 406, 5lh edit. 1830) 
 has justly remarked, that, under an allegation of notice, it may be ques- 
 tionable, whether evidence can be given to excuse the want of notice, or, 
 whether to let in such evidence, the facts, to excuse notice, should not be 
 pleaded specially ; and he has cited Cory v. Scott, 3 Barn. & Aid. 619. 
 In this respect, there may be just ground for a distinction between a case 
 of protest, and notice given, but too late, and a case, where no protest or 
 notice has been given at all. Firth v. Thrush, 8 Barn. & Cressw. 387 ; 
 Bakers. Gallagher, 1 Wash. Cir. R. 461 ; Potter i>. Rayworth, 13 East, 
 417; Richter v. Selin, 8 Serg. & Rawle, 438; Pierson v. Hooker, 8 
 Johns. R. 71 ; Martin v. Ingersoll, 8 Pick. R. 1 ; Thornton v. Wynn, 12 
 Wheat. R. 183. 
 
 1 Chitty on Bills, ch. 10, p. 539 (Slh edit. 1833) ; Bayley on Bills, ch. 
 7, § 2, p. 291, 292 (Slh edit. 1830) ; Dennis v. Morrice, 3 Esp. R. 158; 
 Cuming v. French, 2 Camp. R. 106. But see Margetson v. Aitkin, 3 
 Carr. & Payne, R. 338. 
 
CH. IX.] NON-ACCEPTANCE OP. 401 
 
 be insisted upon as an absolute waiver.* And this doc- 
 trine of waiver of the laches of the Holder, in omitting 
 due notice, either by acts, or by a new promise, seems 
 equally applicable to the case of Indorsers, as it is to 
 that of the Drawer.® 
 
 1 Ibid. ; Fletcher v. Froggatt, MSS., cited Chitty on Bills, ch. 10, p. 
 640, note, (8th edit. 1833) ; S. C. 2 Can. & Payne, 569. — Mr. Chitty (on 
 Bills, ch. 10, p. 539, 540, 8th edit. 1833) says : " The conduct, however, 
 of the party insisting on the want of notice, must, in general, be unequivocal,- 
 and his promise must amount to an admission of the Holder's right to re- 
 ceive payment ; and, therefore, where a foreigner only said, ' I am not ac- 
 quainted with your laws, if I am bound to pay it I will,' such promise was 
 not considered a waiver of the objection of want of notice ; and it has 
 been considered, that if the promise were made on the arrest, it shall not 
 prejudice; but this doctrine seems questionable. If an Indorser propose to 
 the Holder to pay the Bill by instalments, and such offer be rejected, he 
 is at liberty afterwards to avail himself of the want of notice. So, it was 
 decided, that, if the Drawer or Indorser, after having been arrested, upon 
 being asked what he had to propose by way of settlement, said, 'lam 
 willing to give my bill at one or two months,' but which was rejected, this 
 does not obviate the necessitj' of proving notice ; and Lord Ellenborough 
 observed, ' This offer is neither an acknowledgment, nor a waiver, to ob- 
 viate the necessity of expressly proving notice of the dishonor of the Bill. 
 He might have offered to give his acceptance at one or two months, al- 
 though, being entitled to notice of the dishonor of the former Bill, he had 
 received none, and, although, upon this compromise being refused, he 
 meant to rely upon this objection. If the plaintiff accepted the offer, good 
 and well ; if not, things were to remain on the same footing as before it 
 was made.' But an offer to the Holder of a Bill of a general composition 
 of so much in the pound on all the party's debts, although not accepted, 
 has been considered as dispensing with proof of notice of dishonor." This 
 last point is founded on the case of Margetson v. Aitkin, 3 Carr. & Fayne, 
 338, which seems very questionable as an authority ; for the composition 
 was not accepted. 
 
 2 Thornton v. Wynn, 12 Wheat. R. 183. — Mr. Chitty, on this subject, 
 says : " It has been considered, that, admitting that a Drawer of a Bill 
 may, by circumstances, impliedly waive his right of defence founded on 
 the laches of the Holder ; yet, an Indorser can only do so by an express 
 waiver, there being a material distinction in this respect between the situa- 
 tion of a Drawer and Indorser." Chitty on Bills, ch. 10, p. 540 (8th edit. 
 1833.) For this position, he relies on the dictum of Sir James Mansfield 
 
 34* 
 
402 BILLS OF EXCHANGE. [CH. IX. 
 
 § 321. Having thus considered the cases in which 
 the parties to a Bill may be charged or discharged 
 from their liability as Drawers or Indorsers on the 
 same ; let us proceed to examine what are the rights 
 attached by law in favor of the Holder, in case of a dis- 
 honor of a foreign Bill, by non-acceptance, where he 
 has given due notice, or where he is absolved from giv- 
 ing notice, and is in no default. And here, by our law 
 (diiferent, as we shall presently see, from the foreign 
 law,) immediately upon the dishonor of the Bill by 
 non-acceptance, the Holder has a right to insist upon 
 an immediate payment of the Bill, together with 
 interest, damages, and costs, as well from the prior 
 Indorsers as from the Drawer ; and, in default thereof, 
 he may immediately commence separate actions against 
 each of them, and pursue such actions to judgment and 
 execution until he has received full satisfaction from 
 some one or more of the parties.' What the damages 
 
 in Borradaile v. Lowe, 4 Taunt. R. 93. But I know of no other authority 
 which takes any such distinction between the ease of a Drawer and an 
 Indorser, as to waiver of notice, or other defence ; and, upon principle, it 
 seems difficult to support it. The case itself went off upon the ground, 
 that there was no express proof of any waiver. The intimations of Mr. 
 Chief Justice Mansfield rather seemed to point to the question, Whether, 
 as to the Indorser,. there was any debt binding in conscience, upon which 
 to found a valid promise. See Shepherd's (Serg.) argument in the case 
 upon the point of a valid consideration, and the distinction in point of fact, 
 if not of law, between the case of a Drawer and that of an Indorser. In 
 Thornton v. Wynn, , 13 Wheat. R. 183, the Supreme Court of the U. 
 States held the Indorser liable on a waiver by him of the laches of the 
 Holder in. not giving notice. See Bay ley on Bills, ch. 11, p. 478 (5th 
 edit. 1830.) 
 
 1 Post, § 366 ; Chitty on Bills, ch. 8, p. 370 (8th edit. 1833) ; Bayley 
 on Bills, ch. 9, p. 327, 331, 332 (5th edit. 1830) ; 2 Black. Comm. p. 469, 
 470; Bright ». Furrier, Bull. N. Pr. 269; Milford «. Mayor, Doug. R. 
 55, 56 ; Ballingalls v. Gloster, 3 East, R. 481 ; Whitehead v. Walker, 
 9.Mees. & Welsh. 506 ; Mason v. Franklin, 3 Johns. R. 203 ; Boot v. 
 
CH. IX.] NON-ACCEPTANCE OF. 403 
 
 are, and should be, will more properly come under 
 review, when we have occasion to consider cases of dis- 
 honor for non-payment of Bills. But it may be here 
 stated, that the like damages are ordinarily allowed in 
 cases of non-acceptance, as in cases of non-payment of 
 Bills ; 1 and that they are governed by the Lex Loci 
 contractus; that is to say, the Drawer is responsible for 
 damages according to the law of the place where the 
 Bill is drawn, and the Indorsers are severally liable 
 according to the law of the place, where they have 
 made their respective indorsements.^ 
 
 § 322. In France, the liability of the Drawer and 
 Indorsers, upon a dishonor of the Bill by non-accept^ 
 ance, and due notice thereof, involves very different 
 rights and responsibilities. For there, upon protest for 
 non-acceptance and due notice, the Drawer and In- 
 dorsers are, by the modern Code of Commerce, respect- 
 ively bound to give security only for the payment 
 of the Bill when due, or for reimbursement, together 
 with the expen'ses of protest and reexchange. This 
 security, whether given by the Drawer or Indorser, 
 creates an obligation, in solido, only with the person 
 for and to whom the particular security is given.^ And 
 
 Franklin, 3 Johns. R. 208 ; Robinson v. Ames, 20 Johns. R. 146 ; Wat- 
 son V. Loring:, 3 Mass. R. 557 ; Weldon v. Back, 4 Johns. R. 144 ; 
 Wild V. Bank of Passamaquoddy, 4 Mason, R. 505 ; Morgan v. Towles, 
 8 Martin, R. 730 ; Lenox v. Cook, 8 Mass. R. 460 ; Graves v. Dash, 
 12 Johns. R. 17; Denston u. Henderson, 13 Johns. R. 322; Bank of 
 Rochester v. Gray, 2 Hill, N. Y. R. 227. 
 
 1 Mason u., Franklin, 3 Johns. R. 208; Graves i'. Dash, 12 Johns. R. 
 17 ; Weldon v. Buck, 4 Johns. R. 144 ; Auriol v. Thomas, 2 Term R. 
 52; Mellish v. Simeon, 2 H. Black. 378 ; Laing v. Barclay, 3 Stark. R. 
 41 ; Chitty on Bills, Ft. 2, ch. 6, p. 666 to 670 (8th edit. 1833). 
 
 2 Ante, § 153, 169, 170, 176, 177, note. 
 
 3 Code de Comm. art. 120 ; Locr6, Esprit du Code de Comm. Tom. 2, 
 art. 120; Pardessus, Droit Comm. Tom. 2, art. 381, 383. 
 
404 BILLS OP EXCHANGE. [CH. IX, 
 
 this seems, in its spirit and objects, to conform to the 
 antecedent state of the commercial law of France ; for 
 the Drawer and Indorsers, under that law, were held 
 bound to a guaranty of an acceptance by the Drawee ; 
 although it did not decide what the effect of the gua- 
 ranty should be.^ But, whether a Bill of Exchange 
 has been accepted, or has been protested for non- 
 acceptance, the Holder of the Bill is, according to the 
 French Law, equally bound to present it, at its matu- 
 rity, to the Drawee, or Acceptor, for payment ; and, in 
 case of his refusal, he must verify that refusal by a 
 protest in due form, and give notice thereof also in due 
 form, and proceed thereon against the Drawer and 
 Indorsers within the time prescribed by law.^ What 
 proceedings are to be had under the French Law, in 
 cases of the dishonor of Bills by non-payment thereof 
 after acceptance, or non-acceptance, we shall presently 
 have occasion to see.* 
 
 1 Locr6, Esprit du Code de Comm. Tom. 2, art. 120 ; Jousse, sur 
 I'Ord 1673, art. 2, note, p. 74, 75 (edit. 1802) ; Pothier de Change, n. 70. 
 
 2 Pothier de Change, n. 133 ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 409, 
 410 {5lh edit). 
 
 3 See Pardessus, Droit Comm. Tom. 2, art. 429 to 435 ; Code de 
 Comm. art. 163 ; Post, § 393 to 395. 
 
 « 
 
CH. X.] • PRESENTMENT FOR PAYMENT. 405 
 
 CHAPTER X. 
 
 PRESENTMENT FOR PAYMENT. 
 
 § 323. We come, in the next place, to the consider- 
 ation of the Presentment of a foreign Bill of Exchange. 
 We have already seen that the contract of the Acceptor, 
 by his acceptance, is, that he will pay the Bill upon 
 due presentment thereof at its maturity, or its becom- 
 ing due.' The contract of the Drawer, and of the 
 Indorsers also, respectively is, not only that the Bill 
 shall be duly accepted, but that the Bill shall be duly 
 paid by the Acceptor upon due presentment for pay- 
 ment ; and, if not then paid and due protest is made, 
 and due notice of the dishonor is given to them respect- 
 ively, they will, upon demand, pay the Bill, and also 
 the damages and expenses accruing to the Holder 
 thereby.^ It is obvious, from this statement, that, 
 while the contract of the Acceptor is absolute, that of 
 the Drawer and Indorsers is conditional.^ Hence it 
 becomes important to ascertain at what time the pre- 
 sentment for payment ought to be made in order to 
 bind the Drawer and Indorsers ; and, if not duly paid 
 within what time the protest should be made, and 
 notice given to them respectively, of the dishonor. 
 
 > Ante, ^ 113, 114, 115,252. 
 
 2 Chitty on Bills, ch. 9, p. 'SSI, 385 (8lh edit. 1833) ; 1 Bell, Comm. 
 B. 3, ch. 2, § 4, p. 408 (5th edit.) Ante, § 108, 109, 110, 111, 119, 120, 
 200, 224, 225. 
 
 3 Ibid. 
 
406 BILLS OF EXCHANGE. [CH. X. 
 
 This will of course require us to consider, (1.) the 
 time ; (2.) the place ; (3.) the mode of presenting the 
 hill for payment ; (4.) the person, hy whom it is to be 
 presented; (5.) the person to whom it is to be pre- 
 sented ; and (,6.) what will be a good payment or other 
 sufficient discharge of the Bill. 
 
 § 324. Firat, as to the time of presentment for pay- 
 ment. It is obvious, that, where a Bill is made pay- 
 able at a particular time, either with reference to its 
 date, or to the sight thereof, or otherwise, payment is 
 demandable, only when that time has expired, and not 
 before. Still, however, although then demandable, the 
 Holder might not choose to demand payment of the 
 Acceptor at that time, but might omit, and delay it, at 
 his pleasure, to a future time, unless there were some 
 known rule of law, which should compel him to strict 
 punctuality in point of time. Now, it would.be highly 
 injurious to the interests of commerce, and to the secu- 
 rity of the Drawers and Indorsers of negotiable instru- 
 ments, if the Holder were at liberty to consult his own 
 mere pleasure as to the time of making any demand of 
 payment after a Bill became due, and might, after long 
 delays, and non-payment, still have recourse over or 
 against the Drawer or Indorsers. It would expose the 
 latter to serious, and perhaps, to irremediable losses, 
 which an earlier demand might have prevented; and 
 thus it would have a tendency to discourage the use 
 and circulation of negotiable paper.' 
 
 § 325. Hence, the Commercial Law, which, through- 
 out all its departments, inculcates the doctrine of rea- 
 sonable diligence, and frowns upon and discourages 
 
 Chitty on Bills, ch. 9, p. 385 (8th edit. 1833.) 
 
CH. X.] PRESENTMENT FOB. PAYMENT. 407 
 
 laches, has introduced a rule of great strictness on this 
 subject, which, although it may sometimes be found 
 harsh, and, perhaps, severe in its practical operation, is, 
 for the general purposes of business, highly useful to 
 the commercial community, by introducing prompt- 
 ness, fidelity, and exactness, in the demand of payment 
 of Bills of Exchange. The reason of the rule is thus 
 briefly, but exactly, stated by Mr. Justice Blackstone ; 
 "The Bill, when refused, must be demanded of thb 
 Drawer, as soon as conveniently may be ; for though 
 when one draws a Bill of Exchange, he subjects him- 
 self to the payment, if the person, on whom it is drawn, 
 refuses either to accept or pay, yet, that is with this 
 limitation, that, if the Bill be not paid, when due, the 
 person, to whom it is payable, shall, within convenient 
 time, give the Drawer notice thereof; for, otherwise, 
 the law will imply it paid ; since it would be prejudi- 
 cial to commerce, if a Bill might rise up to charge the 
 Drawer, at any distance of time ; when, in the mean 
 time, all reckonings and accounts may be adjusted be- 
 tween the Drawer and Drawee."' In respect to the 
 Acceptor, who is held to be the, party primarily liable, 
 and the absolute debtor, the Holder is at liberty to al- 
 low him whatever indulgence or delay he may please, 
 short of the period, which would, under the statute of 
 limitations, or prescription of the particular state or 
 country, where the suit is brought, operate as a bar to 
 his claim. But, as to the Drawer and Indorsers, who 
 are only collaterally and conditionally liable, the rule 
 is far different. It is, that, in order to charge them, a 
 demand of payment should be made of the Acceptor on 
 
 ' 3 Black. Comm. p. 470 ; Allen v. Dockwra, 1 Salk. K. 127. 
 
408 BILLS OF EXCHANGE. [CH. X, 
 
 the very day, on which, by law, the Bill becomes due ; 
 and, unless the demand be so made, it is, generally, a 
 fatal objection to any right of recovery against the 
 Drawer, or the Indorsers, although the Acceptor him- 
 self may, and will, still be held on the Bill.' If no par- 
 
 1 Chitty on Bills, ch. 9, p. 385, 3S6, 422, 423 (8th edit. 1833) ; Bayley 
 on Bills, ch. 7, § 1, p. 217, 232, 247 (5lh edit. 1830) ; Pothier de Change, 
 n. 129; Camidge v. Allenby, 6 Barn. & Cressw. 373; Bridges v. Berry, 
 3 Taunt. R. 130 ; Jackson v. Newton, 8 Watts, R. 401 ; 1 Bell, Comm. 
 B. 3, ch. 2, § 4, p. 408 to 410 (5th edit.) ; Robinson v. Blen, 2 Appleton, 
 R. 109. Mr. Chitty has remarked; "It is a general rule of law, that, 
 where there is a precedent debt or duty, the creditor need not allege or 
 prove any demand of payment before the action brought, it being the duty 
 of the debtor to find out his creditor, and tender him the money ; and, as it 
 is technically said, the bringing of the action is a. sufficient request. It 
 might not, perhaps be unreasonable, if the law, in all cases, required pre- 
 sentment to the Acceptor of a Bill, or Maker of a note, before an action 
 be commenced against him ; because, otherwise, he might, on account of 
 the negotiable quality of the instrument, and the consequent difficulty to 
 find out the Holder of it on the day of payment, in order to make a tender 
 to him, be subjected to an action without any default whatever ; and the 
 engagement of the Acceptor of a Bill, or Maker of a note, is to pay the 
 money, when due, to the Holder, who shall, for that purpose, make pre- 
 sentment. And one reason, why a party cannot recover at law, on a lost 
 Bill or note, is, that the Acceptor of the one, and Maker of the other, has 
 a right to insist on having it delivered up to him, on his paying it. It 
 seems, however, that, in general, the Acceptor or Maker of a note cannot 
 resist an action, on account of neglect to present the instrument at the pre- 
 cise time, when due, or of an indulgence to any of the other parties. And 
 on the above-mentioned principle, that an action is, of itself, a sufficient 
 demand of payment, it has been decided, that the Acceptor or Maker of 
 a note cannot set up, as a defence, the want of a presentment to him, even 
 before the commencement of the action, and although the instrument be 
 payable on demand. But, in such a case, upon an early application, the 
 Court would stay proceedings without. costs." Chitty on Bills, ch. 9, p. 
 391, 392 (8th edit. 1833) ; Bayley on Bills, ch. 6, ^ 1, p. 214, 215 (5th 
 edit. 1830) ; Id. ch. 9, p. 402 ; Dingwell v. Dunster, Doug. R. 247 ; 
 Anderson v. Cleveland, cited in Esp. Digest, N. Prius, 58 (4th edit.), 
 and in 13 East, R. 430, note ; Rumball v. Ball, 10 Mod. R. 38 ; Rey- 
 nolds V. Davies, 1 Bos. & Pull. 625 ; Hansard v. Robinson, 7 B. & 
 Cressw. 90 ; Williams v. Waring, 10 Barn. & Cressw. 2 ; Mackintosh 
 
CH. X.] PEESENTMENT FOR PAYMENT. 409 
 
 ticular time is fixed for the payment of the Bill, as, if 
 it be payable on demand, or at sight, payment must 
 be demanded within a reasonable time, otherwise the 
 Drawer and Indorsers will be discharged.^ A present- 
 ment or demand of payment must be made personally 
 upon the Acceptor, at his place of business, or at his 
 dwelling-house, where his residence is known, or may 
 be ascertained by reasonable inquiry; and cannot be 
 made by a written demand, sent to him through the 
 post-office.^ 
 
 § 326. Even the death, or known bankruptcy or in- 
 solvency of the Acceptor, will (as we shall presently 
 more fully see)^ be no excuse for the omission to de- 
 
 V. Haydon, Ryan & Mood. R. 363 ; 2 Chitty, R. 11 ; 1 Tidd. Pract. 145 
 (9th edit.) 
 
 1 Chitty on Bills, ch. 9, p. 385, 412 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, ^ 1, p. 217, 232, 234 to 244 (5th edit. 1830) ; Camidge v. AUenby, 
 6 Barn. & Cressw. 373; Berry v. Robinson, 9 Johns. R. 121; Fry v. 
 Hill, 7 Taunt. R. 397 ; Field v. Nickerson, 13 Mass. R. 131 ; Sice «. 
 Cunningham, 1 Cowen, R. 397; Martin v. Winslow, 2 Mason, R. 241 ; 
 Lord u. Chadbourne, 8 Greenl. R. 198. — Mr. Chilly, in treating of the 
 consequences of neglect to make due presentment, makes the following 
 pertinent remarks : " In considering the necessity for a due presentment 
 for acceptance, and for payment, and the time, when the same should be 
 made, we have anticipated this inquiry ; and it may suffice to observe, that, 
 on principle, perhaps more exactness and punctuality, in a presentment for 
 payment, may reasonably be required, than even in a notice of non-pay- 
 ment ; because a prompt and regular demand of payment may frequently 
 obtain payment from an Acceptor of a Bill and Maker of a note, who is in 
 a state of progressive insolvency, when a subsequent application of the 
 same nature would become unavailing ; whereas, the loss of a day or 
 more, in giving notice of non-payment, rarely makes any actual difference. 
 The rules, applicable to delay in notice of non-payment, will in general 
 apply, and with more force, to delay in due demand of payment." Chitty 
 on Bills, ch. 9, p. 423, 424 (8th edit. 1833) ; Musson v. Lake, 4 Howard, 
 Sup. Ct. R. 262. 
 
 2 Stuckert v. Anderson, 3 Whart. R. 116; King v. Holmes, 1 Jones, 
 Penn. R. 496. 
 
 3 Post, § 346. 
 
 B. OF EX. 35 
 
410 BILLS OF EXCHANGE. [CH. X. 
 
 mand payment at the time, when the Bill becomes due.' 
 The French Law is precisely the same upon this point.^ 
 And it will make no difference, in the application of 
 the rule bv our law, whether the Bill has been taken 
 or transferred for a precedent debt, or for money ad- 
 vanced on a purchase thereof. In the former case, the 
 right to recover the precedent debt, as well as the 
 right to recover on the Bill, will be gone, and so also 
 the right to recover back the money, or recover on the 
 Bill, in the latter case.^ Nor will the circumstance, 
 that the Holder has received the Bill so near the time, 
 when it becomes due, as to render it impracticable to 
 make a presentment for payment at its maturity, con- 
 stitute any excuse for the want of a due presentment, 
 as to the other parties to the Bill ; whatever might be 
 the case, as to the party, from whom he then first re- 
 ceived it; in respect to whom, perhaps all, which can 
 be required under such circumstances, is to present it 
 with reasonable diligence, as soon as it can be, for pay- 
 ment, and, if dishonored, to give him due notice there- 
 of.* The French Law, upon this point also, seems ex- 
 actly in coincidence with ours.^ 
 
 1 Ante, § 234, 279, 307, 318, 319 ; Post ^ 346 ; Chitty on Bills, ch. 8, 
 p. 360 (8th edit. 1833) ; Id. ch. 9, p. 386, 389 ; Bayley on Bills, ch. 7, 
 § 1, p. 251 (5th edit, 183o') ; MoUoy, B. 2, ch. 10, ^ 34; Russell v. 
 Langstaffe, Doug. R. 515 ; Esdaile v. Sowerby, 11 East, R. 117; Bowes 
 V. How, 5 Taunt. R. 30 ; S. C. 16 East, R. 113 ; 1 Maule & Selw. 555 ; 
 Hunt V. Wadleigh, 26 Maine, R. 271. 
 
 s Pothier de Change, n. 146, 147; Pardessus, Droit Comm. Tom. 2, 
 art. 434 ; Tom. 5, art. 1497; Post, § 347. 
 
 3 Chitty on Bills, ch. 9, p. 385 to 387, 417, 418 (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 7, \ 1, p. 233 lo 234 (5ih edit. 1830) ; Camidge v. Alien- 
 by, 6 Barn. & Cressw. 373 ; Bridges v. Berry, 3 Taunt. R. 130. 
 
 4 Chilty on Bills, ch. 9, p. 423 (8th edit. 1833) ; Anderton u. BBck, 16 
 East, R. 248 ; Bayley on Bills, ch. 7, ^ 1, p. 243 (5th edit. 1830). 
 
 6 Pardessus, Droit Comm. Tom. 2, art. 426; Id. Tom. 6, art. 1497; 
 Post, § 347, 
 
CH. X.] PEESENTMENT FOB PAYMENT. 411 
 
 § 327. still, however, the same general grounds, 
 which will ordinarily excuse the Holder for the want of 
 due notice of dishonor, upon non-acceptance of the Bill, 
 will furnish a suflScient excuse for the delay to make a 
 due presentment for payment of the Bill.' Thus, for 
 example, the sudden illness or death of the Holder, or 
 of his agent, or any other accident or casualty, or the 
 operation of superior force, or political events, or war, 
 which prevents a due presentment, will not prejudice 
 the rights of the Holder, if he should afterwards make 
 presentment, and give notice, as soon as it can be rea- 
 sonably done.^ So, if the Holder, at the time of the 
 maturity of the Bill, be at a great distance from the 
 Maker, so that is impossible to make a due presentment 
 on his part, and he has been, in fact, guilty of no laches 
 in being in such a predicament, it has been held, that 
 he will be excused, if he afterwards makes a present- 
 ment, as soon as he reasonably may.^ So, if the Ac- 
 ceptor has absconded before the day of payment, and 
 
 1 Ante, ^ 233, 234, 308; Post, § 365. 
 
 2 Ante, ^ 234, 280, 308, 309, 327 ; Chitty on Bills, ch. 8, p. 360 (8th 
 edit. 1833) ; Id. ch. 9, p. 389, 390, 432, 423 ; Id. ch. 10, p. 485, 524 ; 
 Patience v. Townley, 2 Smith, R. 223, 224 ; Tunno «. Lague, 2 Johns. 
 Cas. 1 ; Hopkirk v. Page, 2 Brock, R. 20. But see Scholefield v. Bay- 
 ard, 3 Wend. R. 488. — Mr. Chitty, on this subject, says : " Provided the 
 party, entitled to a Bill or note, produce it, as soon as the impediment has 
 been removed, and, in the mean time, take every step in his power to ob- 
 tain payment at the appointed time, a delay in presenting the instrnment 
 itself at maturity may be excused, on account of any accident or circumstance 
 not attributable to the party's own fault. Thus, it has been considered, 
 that the detention of the Bill by contrary winds, or the Holder's having 
 been robbed of the Bill, or the like, would afford an adequate excuse, pro- 
 vided he present it as soon afterward as he is able. So, the occupation of 
 the country by an enemy will constitute an adequate excuse for delay." 
 Chitty on Bills, ch. 9, p. 422, 423 (8th edit. 1833). 
 
 3 Freeman v. Boynton, 7 Mass. R. 483. The case itself went much 
 farther, and on this account may be open to some question. 
 
412 BILLS OF EXCHANGE. [CH. X. 
 
 he cannot be found, and his place of residence is desert- 
 ed, the omission to make due presentment would, it 
 seems, be thereby excused.^ In like manner, the delay 
 to make a presentment for payment in due time will be 
 excused, so far as respects the Drawer, but not as to 
 the Indorsers, where the Drawer has no funds in the 
 hands of the Acceptor, and had no right to expect ac- 
 ceptance or payment of the Bill.^ So, it will be excus- 
 ed by a new promise to pay the Bill, with a knowledge 
 of the want of due presentment, or by an unequivocal 
 waiver of the laches.' 
 
 § 328. And not only must the Bill, ordinarily, be pre- 
 sented for payment on the very day, when it becomes due, 
 but it should be presented within reasonable hours of 
 that day, otherwise, the objection will be fatal.* What 
 is a reasonable hour, must depend upon the known 
 habits of business and customs of the place, where the 
 Bill is payable. If the Bill is payable at a banker's, it 
 should be presented there within the usual banking 
 hours of business.* If presented for payment at the 
 
 1 Chitty on Bills, ch. 7, p. 307 (8th edit. 1833) ; Id. ch. 8, p. 360 ; Id. 
 ch. 10, p. 485, 524 ; Lehman v. Jones, 1 Watts and Seig. 1S6 ; Spies v. 
 Gilmore, 1 Comstock, R. 331 ; Taylor v. Snyder, 3 Denio, R. 151 ; Story 
 on Prom. Notes, ^ 264. 
 
 a Chitty on Bills, ch. 7, p. 300 (8th edit. 1833) ; Id. ch. 9, p. 389, 390, 
 423,424; Id. ch. 10, p. 485; Ante, § 311 ; Walwyn «. St. Quintin, 1 
 Bos. & Pull. 652; DoUfus ». Frosch, 1 Denio, R. 367. 
 
 3 Chitty on Bills, ch. 9, p. 390, 424 (8th edit. 1833). 
 
 * Post, § 346 ; Ante, ^ 236, 291 ; Chitty on Bills, ch. 9, p. 421, 422 
 (8th edit. 1833) ; Bayley on Bills, oh. 7, ^ 1 , p. 224 to 226 (5th edit. 1830) 
 Parker v. Gordon, 6 Esp. R. 43 ; S. C. 7 East, R. 385 ; Elford v. Teed, 
 1 Maule & Selw. 28. 
 
 5 Ibid ; Parker v. Gordon, 7 East, R. 385 ; Elford v. Teed, 1 Maule & 
 Selw. 28; Morgan v. Davidson, 1 Starkie, R. 114; Garnelli). Woodcock, 
 1 Starkie, R. 476, 6 Maule & Selw. 44; Jenks v. Doyleston Bank, 4 
 Wells & Serg. 605. — Mr. Chitty says: "A presentment for payment 
 
CH. X.] PRESENTMENT FOR PAYMENT. 413 
 
 counting-room of the Acceptor, it should be within the 
 usual hours of his keeping his counting-house open, or 
 the ordinary course of transacting business at counting- 
 houses in the same place. If presented for payment at 
 the dwelling-house, or other place of residence of the 
 the Acceptor, it should be within such reasonable hours 
 as the family are up, and in a condition usually to re- 
 ceive demands of that nature, or to transact business.^ 
 
 § 329. But the question will still remain, At what 
 time is a Bill properly due ? Or, in other words, At 
 what time has it arrived at maturity, so that payment 
 may be demanded of the Acceptor ? At first view, an 
 uninstructed reader might imagine, that this could 
 
 of a Bill, payable on a day certain, should, in all cases, be made within a 
 reasonable time before the expiration of the day, when it is due ; and, if, 
 by the known custom of any particular place, Bills are only payable within 
 limited hours, a presentment there, out of those hours, would be improper ; 
 and this rule extends, also, to a presentment, out of the hours of business, 
 to a person of a particular description, where, by the known custom of the 
 place, all such persons begin and leave off business at stated hours. And, 
 therefore, when a Bill is accepted, payable at a banker's, it must be pre- 
 sented there before five o'clock, or the usual hour of shutting up their shop ; 
 and presentment afterwards will not entitle the notary to protest it. And no 
 inference is to be drawn from the circumstance of the Bill being presented 
 by a notary in the evening, that it had before been duly presented within 
 the banking hours. However, a presentment of a Bill at a banker's where 
 it is payable, is sufficient, although it be made after banking hours, pro- 
 vided a person be stationed there by the banker to return aaswers, and he 
 refuses to pay the Bill. And, when the party to the Bill or note is not a 
 banker, a presentment at any time, not during the hours of rest, however 
 late in the evening, will, in general, suffice. And in a recent case it was 
 decided, that a presentment between eight and nine o'clock intlie evening, 
 at the house of a trader or merchant, is quite sufficient ; and this, although 
 no person was there to give an answer." Chitty on Bills, ch. 9, p. 421, 
 422 (8th edit. 1833) ; Bayley on Bills, ch, 7, § I, p. 224 to 226 (5th edit. 
 1830). 
 
 J Ibid. ; Ante, ^ 236 ; Barclay v. Bailey, 2 Camp. R. 527 ; Wilkins v. 
 Jadis, 2 Barn. & Adolph. 188 ; Morgan v. Davidson, 1 Starkie, R. 114; 
 Tiiggs V. Newnham, 10 Moore, R. 249. 
 35* 
 
414 BILLS OF EXCHANGE. [CH. X. 
 
 scarcely present any practical difi&culties as to its solu- 
 tion. Upon farther inquiry, however, it will be found 
 to involve questions of a highly important character, 
 and originally not without diificulty, although now the 
 rule is fixed and established beyond any reasonable 
 controversy. Let us, for example, suppose a Bill to be 
 drawn on the first day of January, 1842, payable at ten 
 days after date, without grace. Is it due on the tenth 
 day of January, or on the eleventh day of January ? 
 It is now settled, that it is due on the eleventh day of 
 January, or, in other words, the day of the date is ex- 
 cluded from the computation.^ The same question 
 might be propounded, as to a Bill payable ten days 
 after sight, without grace, and accepted on the first day 
 of January ; and it ought to receive a similar answer.® 
 But it will be found that, in other cases, not of a com- 
 mercial nature, great controversies have arisen, at the 
 Common Law, as to the computation of time, when 
 deeds and other instruments are to have efiect and 
 operation from the date, or from the day of the date 
 thereof, or with reference thereto, whether the day of 
 the date is to be taken as exclusive or inclusive.^ 
 
 § 329 a. The French Law recognizes the same doc- 
 trine, that the time when a Bill is to become due is 
 
 1 Chitty on Bills, ch. 9, p. 403, 404, 406 (8th edit. 1333) ; Bayley on 
 Bills, ch. 7, § 1, p. 248 to 250 (5th edit. 1830) ; Bellassis v. Hester, 1 Ld. 
 Raym. 280 ; Coleman c. Sayer, 1 Barnard, R. 303 ; Blanchard v. Hilliard, 
 UMass. R. 85; Woodbridge v. Brigham, 12 Mass. R. 403; S. C. 13 
 Mass. R. 556 ; Henry v. Jones, 8 Mass. R. 453. 
 
 a Ibid. 
 
 3 See Pugh v. The Duke of Leeds, 2"Cowp. 714 ; Glassington «. Raw- 
 lins, 3 East, R. 407 ; Lester «. Garland, 15 Ves. 254; Castle v. Burditt, 
 3 Term R. 623 ; 4 Kent, Comm. Leot. 56, p. 95, note (6) (4th edit.). 
 See Bigelow v. Willaon, 1 Pick. R. 485 ; Presbiey v. Williams, 15 Mass. 
 R. 193. 
 
en. X.] PKESBNTMENT FOR PAYMENT. 415 
 
 exclusive of the day of the date, if it is payable at a 
 certain number of days after date ; exclusive of the day 
 of the acceptance, if it is payable at a certain number 
 of days after acceptance ; the general rule being, Dies 
 termini non computatur in termino} 
 
 § 330. Again. Suppose a foreign Bill of Exchange, 
 drawn on the tenth day of January, payable in a month, 
 without grace ; how is the month to be reckoned ? Is 
 it a lunar month, or a calendar month, or the period of 
 thirty days ? By the Common Law of England a 
 month is constantly deemed a lunar month, as well in 
 computations made in the construction of statutes as in 
 the construction of mere Common Law contracts.* But, 
 by the universal rule of the commercial world, includ- 
 ing England and America, a month is now deemed, in 
 all cases of negotiable instruments, and, indeed, in all 
 commercial. contracts, to be a calendar month.^ Hence, 
 in the case above supposed, the Bill will, without 
 grace, be payable on the tenth day of February, it 
 being the day on which the month will expire ; and 
 no allowance will be made for the fact, that February 
 
 1 Delvincourt, Droit Conim. Tom. I, Liv. 1, tit. 7, p. 77 (2d edit.) ; . 
 Pothier de Change, n. 138. 
 
 2 Chitty on Bills, ch. 9, p. 406 (8th edit. 1833) ; 2 Black. Comm. 141 ; 
 Lacon v. Hooper, 6 Term R. 225 ; Castle v. Burditt, 3 Term R. 623 ; 
 Catesby's case, 6 Co. Rep. 61 ; Lang v. Gale, 1 Maule & Selw. Ill ; In 
 the matter of Swinford and Horn, 6 Maule & Selw. 226. 
 
 3 Ante, § 143 ; Bayley on Bills, ch. 7, § 1, p. 247, 250 (5th edit. 1830); 
 Chitty on Bills, ch. 9, p. 403, 404 (8th edit. 1833); 4 Kent, Comm. Lect. 
 56, p. 95, note (b) (4th edit.) ; Jolly u. Young, I Esp. R. 186 ; Titus v. 
 Lady Preston, 1 Str. R. 652. — In America the computation has generally, 
 but not universally, been by calendar months and not by lunar months, as 
 well in the construction of statutes as of common contracts. See 4 Kent, 
 Comm. Lect. 56, p. 95, note {b) (4th edit.) ; Hunt v. Holden, 2 Mass. R. 
 170 ; Avery v. Pixley, 4 Mass. R. 460. 
 
416 BILLS OP EXCHANGE. [CH. X, 
 
 may or does contain only twenty-eight days.^ A Bill 
 of Exchange, therefore, dated on the first day of Janu- 
 ary, and payable six months after date, or after sight, 
 without grace, will be payable on the corresponding 
 day of the sixth month, namely, the first day of July, 
 for then the six months will expire, whatever number 
 of days the intermediate months may contain. 
 
 § 331. But as all countries do not even now use the 
 new style, but some (as, for example, Russia) still con- 
 tinue to use the old style, in the computation of time, 
 it becomes necessary to attend to this circumstance, 
 with reference to Bills drawn in or upon foreign coun- 
 tries, which use different styles.^ Under the old style. 
 
 1 Tassell v. Lewis, 1 Ld. Raym. R. 743; 3 Kent, Coram. Lect. 44, p. 102, 
 103, 104 (5th edit.) 
 
 2 Beawes, Lex Mere, by Chitty, VoL 1, p. 608 (edit. 1813) ; Kyd on 
 Bills, p. 7 (3d edit.) — The following histoiical account of the old and 
 the new style is taken from Dr. Lieber's valuable Encyclopaedia Ameri- 
 cana, Vol. 2, title, Calendar. "From the inaccuracy of the Roman 
 method of reckoning, it appears, that, in Cicero's time, the calendar 
 brought the vernal equinox almost two months later than it ought to be. 
 According to the last letter of the tenth book of Cicero's Epistles to Atti- 
 cus, this equinox was not yet past, although it was near the end of May, 
 by their calendar. To check this irregularity, Julius Csesar, on being 
 appointed dictator and pontiff (A. U. C. 707,) invited the Greek astrono- 
 mer Sosigenes to Rome, who, with the assistance of Marcus Fabius, 
 invented that mode of reckoning, which, after him who introduced it into 
 use, has been called the Julian Calendar. The chief improvement con- 
 sisted in restoring the equinox to its proper place in March. For this 
 purpose, two months were inserted between November and December, so 
 that the year 707, called, from this circumstance, ihe year of confusion, 
 contained fourteen months. In the number of days, the Greek computa- 
 tion was adopted, which made it 365i. The number and names of the 
 months were kept unaltered, with the exception of Quintilis, which was 
 henceforth called, in honor of the author of the improvement, Julius. To 
 dispose of the quarter of a day, it was determined to intercalate a day 
 every fourth year, between the 23d and 24th of February. This was 
 called an intercalary day, and the year in which it took place was called 
 an intercalary year, or, as we term it, a leap year. This calendar con- 
 
CH. X.] 
 
 PRESENTMENT FOB, PAYMENT. 417 
 
 the course of reckoning is according to the Julian 
 Calendar ; but under the new, it is according to the 
 
 tinned in use among the Romans until the fall of the empire, and through- 
 out Christendom, till 1582. The festivals of the Christian Church were 
 determined by it. With regard to Easter, however, it was necessary to 
 have reference to the course of the moon. The Jews celebrated Easter 
 (i. e. the Passover) on the I4th of the ,month Nisan (or March) ; the 
 Christians in the same month, but always on a Sunday. Now, as the 
 Easter of the Christians sometimes coincided with the Passover of the 
 Jews, and it was thought unchristian to celebrate so important a festival 
 at the same time as the Jews did, it was resolved, at the Council of Nice, 
 325, A. Di, that, from that time, Easter should be solemnized on the Sun- 
 day following the first full moon after the vernal equinox, which was 
 then supposed to take place on the 21st of March. As the course of the 
 moon was thus made the foundation for determining the time of Easter, 
 the lunar cycle of Meton was taken for this purpose ; according to which, 
 the year contains 3654 days, and the new moons, after a period of nine- 
 teen years, return on the same days as before. The inaccuracy of the 
 Julian year, thus combined with the lunar cycle, must have soon disco- 
 vered itself, on a comparison with the true time of the commencement of 
 the equinoxes ; since the received length of 365i days exceeds the true 
 by about eleven minutes ; so that, for every such Julian year the equinox 
 receded eleven minutes, or a day in about 130 years. In consequence of 
 this, in the 16th century, the vernal equinox had changed its place in the 
 calendar from the 21st to the 10th ; that is, it really took place on the 
 10th instead of the 21st, on which it was placed in the calendar. Aloy- 
 sius Lilius, a physician of Verona, projected a plan for amending the 
 calendar, which, after his death, was presented by his brother to Pope 
 Gregory XIII. To carry it into execution, the Pope assembled a number 
 of prelates and learned men. In 1577, the proposed change was adopted 
 by all the Catfiolio princes ; and, in 1582, Gregory issued a brief, abolish- 
 ing the Julian Calendar in all Catholic countries, "and introducing, in its 
 stead, the one now in use, under the name of the Gregorian, or reformed 
 Calendar, or the New Style, as the other was now called the Old Style, 
 The amendment consisted in this ; 10 days were dropped after the 4th of 
 October, 1582, and the 15th was reckoned immediately after the 4th. 
 Every 100th year, which, by the Old Style, was to have been a leap year, 
 was now to be a common year, the 4th excepted ; that is, 1600 was to 
 remain a leap year, but 1700, 1800, 1900, to be of the common length, 
 and 2000 a leap year again. In this calendar, the length of the solar year 
 was taken to be 365 days, 5 hours, 49 minutes, and 12 seconds. Later 
 observations of Zache, Lalande, and Delambre fix the average length of 
 the tropical year at about 27 seconds less ; but it is unnecessary to direct 
 
418 BILLS OF EXCHANGE. [CH. X. 
 
 Gregorian Calendar; the difference between the two 
 styles being, at the present time, twelve days ; that is 
 to say, twelve days are added to the time reckoned by 
 the old style, to bring the time to the corresponding 
 day of the new style. Thus, for example,' if a Bill is 
 dated in Russia, on the first day of January, 1842, old 
 style, it precisely corresponds to the thirteenth of 
 January, 1842, according to the new style, which is 
 used in America and England, and perhaps all the 
 countries of Europe except Russia ; ' and, conversely, 
 if a Bill is drawn in England or America, dated on the 
 first day of January, 1 842, the corresponding day in the 
 old style, is the twentieth day of December preceding. 
 Hence it is, that, if a Bill be drawn in London upon St. 
 Petersburg, (Russia,) dated the first day of January, 
 1842, new style, (that is, the twentieth day of December, 
 old style,) payable one month after date (excluding all 
 days of grace,) it will, if accepted, be payable not on 
 the first day of February, 1842, but on the twentieth 
 day of January, 1842, for that is the corresponding 
 
 the attention of the reader to the error arising- from this difference, as it 
 will amount to a day only in the space of 3000 years. Notwithstanding 
 the above improvement, the Protestants retained the Julian Calendar till 
 1700, when they also adopted the New Style, with this difference, that they 
 assigned the feast of Easter to the day of the first full moon after the as- 
 tronomical equinox. But this arrangement produced new variations. In 
 1724 and 1744, the Easter of the Catholics was eight days later than that 
 of the Protestants. On this account, the Gregorian Calendar was finally 
 adopted, 1777, in Germany, under the name of the General Calendar of 
 the Empire, or, as it is now called, the Reformed Calendar, in order that 
 the Catholics and Protestants might celebrate Easter, and, consequently, 
 all the movable feasts, at the same time. England introduced the New 
 Style in 1753, and Sweden in 1753. Russia only retains the Old Style, 
 which now differs twelve days from the New." 
 
 1 See Kyd on Bills, p. 7 (3d ed.) ; Marius on Bills, p. 22, 23, edit. 
 1794. 
 
CH. X.] 
 
 PRESENTMENT FOR PAYMENT. 419 
 
 day, when the month expires, by the old style. On 
 the other hand, if a Bill is -drawn in St. Petersburg, 
 dated the first day, of January, 1842, on London, pay- 
 able in one month after date, without grace, it will, if 
 accepted, be payable, not on the first day of February, 
 but on the thirteenth day of February, 1842,^ and if 
 
 I Bayley on Bills, ch. 7, § 1, p. 249 (5th edit. 1830) ; Chitty on Bills, 
 ch. 9, p. 403 (8ih edit. 1833) ; Beawes, Lex Merc, by Chiity, Vol. 2, p. 
 608 (edit. 1813.) Mr. Chitty says : " When a Bill is drawn at a place 
 using one style, and payable on a day certain, at a place using another, the 
 time, when the Bill becomes due, must be calculated according to the 
 style of the place where it is payable ; because the contract, created by 
 the making of a Bill of Exchange, is understood to have been made at 
 that place, and, consequently, should be construed according to the laws 
 of it. In other works it is laid down, that, upon a Bill, drawn at a place 
 using one style, and payable at a place using another, if the time is to be 
 reckoned from the date, it shall be computed according to the style of the 
 place at which it is drawn, otherwise, according to the style of the place, 
 where it is payable ; and, in the former case, the date must be reduced or 
 carried forward to the style of the place where the Bill is payable, and 
 the time reckoned from thence. Thus, on a Bill dated the 1st of May, old 
 style, and payable here two months after, the time must be computed 
 from the corresponding day of May, new style, namely, 13th of May; 
 and, on a Bill, dated the 1st of May, new style, and payable at St. Peters- 
 burg, two months after date, from the corresponding day of April, old style 
 namely, 19th of April." Chitty on Bills, ch. 9, p. 403 (8th edit. 1833) ; 
 Bayley (on Bills, ch. 7, § 1, p. 249, 5th edit. 1830) lays down the latter 
 position in the same language. In the earlier editions of both works, the 
 reverse mode of computation of the time, under the old and new styles, 
 was, by mistake, given. See also Kyd on Bills, ch. 1, p. 7, 8 (3d edit.) 
 Marius, who first published his work on Bills of Exchange in 1651, on this 
 subject says : " A Bil of Exchange, dated the second of March, new stile, 
 which is the twentieth of February, old stile, (except in Leape Yeare, 
 which will be then the twenty one of April) payable in London at double 
 usance, will be due the twentieth of April, old stile, and not the twenty- 
 second of April, as some do erroneously imagine, who would deduct the 
 ten dales (to reduce the new stile to old stile) at the end of the double 
 usance ; and, so they could go as far as the second of May, new stile, and 
 then go backwards ten daies, when of right they should go forwards from 
 the date of the old stile, relating to the place where it is payable, and 
 reckon the double usance from the very date of the Bil, thus : A Bil 
 
420 BILLS OF EXCHANGE. [CH. X. 
 
 payable with grace, on the third or last day of grace 
 after that day. 
 
 dated the second of March, new stile, is the twentieth of February, old 
 stile, February having but twenty eight daies, (for the twentieth of Febru- 
 ary, old stile, is the second of March, new stile, even to the very day of 
 the week.) So, from the twentieth of February to the twentieth of 
 March is one usance, and from the twentieth of March to the twentieth of 
 April there is another usance ; and so, in like manner, if a Bil of Ex- 
 change be dated the tenth of March, new stile, which is the last of Febru- 
 ary, old stile, payable at treble usance, such a bil would be due the last of 
 May in London, and not the twenty eighth of May, as some do imagine, be- 
 cause February hath but twenty eight daies. Also, if a bil be dated the 
 eighth day of January at Rouen, payable at double usance in London, it 
 will fall due the twenty sixth day of February, and, if from that date 
 payable at treble usance, it will fall due the twenty ninth of March, as is 
 manifest from the almanack or table at the end of this book ; for you must 
 alwaies count your usance from the very date of the Bil, as I have made 
 evidently appeare by what hath been before declared concerning usances ; 
 and, I have seen divers Bils of Exchange, which have been sent from be- 
 yond the seas, wherein the drawers had written the old and new stiles 
 both together, on the date of their bils one above the other, thus : 
 
 Amsterdam adj. _L February 15^ for SOO II. Sterl. 
 
 13 55 
 
 Middleborough adj. — March -^^51 for 150 II. Sterl. 
 25 55 
 
 Adj. ~ March) jggg In Genoua Dol'^- 245 a 57 d. 
 - 6 April ) 
 
 ^£58- 3-9 (/. Sterl. 
 and the like, which is very plaine and commendable in those that do so 
 write, thereby to make things evident to the capacity of the weakest, and 
 to avoid any furliier disputes thereupon, although in those Bils of Ex- 
 change where the old and new stile are not positively expressed, yet the 
 same thing is intended and meant, and ought to be understood as if parti- 
 cularly set down ; for if you have the date in the new stile, you may soon 
 see what date it is in old stile ; and I have taken the more pains to make 
 this out to every man's understanding, because, I do perceive that many 
 men for their own advantage, and in their own case, are subject to be 
 byased, and judge amisse ; but, I conceive, I have herein so clearely evi- 
 denced the truth and reason of my opinion, that it cannot but convince 
 those that are, or have been of a contrary judgment, of their errour and 
 mistake, except they are wilfully blind, and then none so blind ; Or that 
 they can give me any better reason for their contrary opinion, and then I 
 will submit unto them ; for all Bils of Exchange (as I have said before. 
 
CH. X.] PEESENTMENT FOE PAYMENT. 421 
 
 § 332. We have already had occasion to take notice 
 of Bills, often- drawn upon, or between, the countries 
 of continental Europe, payable at one or more usances, 
 the meaning of which has been sufficiently explained. "^ 
 In cases of this sort, the time, when the Bill is pay- 
 able, depends, of course, upon what is the usance or 
 time of payment, prescribed by the law or usage of the 
 place upon which the Bill is drawn, and where it is 
 accepted, and is payable.^ The usance, however, is 
 
 and is notoriously known and assented unto by all) wliich are made payable 
 at usances, must be reckoned directly from the date of the Bil, which if it 
 be new stile and payable in London, or in any other place where they' 
 write old stile, the date must first be proved out in the old slile, and then 
 count forward and you cannot mistake." 
 
 1 Ante, § 50, 144 ; 1 Bell, Coram. B. 3, ch. 2, § 4, p. 410 (5th edit) ; 
 Pothier de Change, n. 139, 140. 
 
 2 Chitty on Bills, ch. 9, p. 404, 405 (8th edit. 1833) ; Pothier de 
 Change, n. 139; Pardessus, Droit Comm. Tom. 2, art. 1489, 1495, 1498. 
 Mr. Chitty in this place, says : " The term usance is French, and signifies 
 the time, which it is the usage of the countries, between which Bills are 
 drawn, to appoint for payment of them. It has, in another place, been 
 said, that, according to the language of merchants, ' usance ' signifies a 
 month. The length of the usance, or time which it includes, varies, in 
 diflferent countries, from fourteen days to one, two, or even three months 
 after the date of the Bill. Double or treble usance is double or treble the 
 usual time, and half usance is half that time ; when it is necessary to di- 
 vide a month upon an half usance, the division, notwithstanding the dif- 
 ference in the length of the month, contains fifteen dajs. It has been 
 said, that the court could not take judicial notice of foreign usances, which 
 vary, being longer in one place than in another, and, therefore, certainly, 
 the duration must be averred and proved. Savary gives the usances of 
 difierent countries in his day. Savary, Le Parfait N6gociant, Ft. 3, Liv. 
 1, ch. 4, §8, p. 816,817. 
 
 A usance between > {^j^stzrisurL is 1 calendar month.after date. 
 London and ) 
 
 America, North, said to be 60 days. 
 
 Alp no 5 sometimes accounted 1 is 1 calendar month 
 
 \ as treble usance j after date. 
 
 Altona is 1 calendar month after date. 
 Antwerp 1 do. do. 
 
 B. OP EX. • 36 
 
422 
 
 BILLS OF EXCHANGE. 
 
 [CH. X. 
 
 always calculated exclusively of the day of the date of 
 the Bill, exactly as it is in cases where the Bill is 
 
 Bilboa 2 do. do. 
 
 Brabant 1 do. do. 
 
 Bruges 1 do. do. 
 
 Berlin 14 days after acceptance. 
 
 Cadiz 2 calendar months after date. 
 
 31 days 
 
 A usance between ) -p] .^ 
 
 London and J 
 
 Constantinople 
 
 and Smyrna 
 Planders 1 calendar month 
 France 30 days 
 Erankfort on ) 
 
 the Main J 
 
 ! sometimes accounted 
 as treble usance. 
 
 do. 
 
 do. 
 do. 
 
 14 days after acceptance. 
 
 1 30 days after date. 
 
 Usance between 
 Amsterdam and 
 
 Genoa 
 
 Geneva 
 
 Hamburg 
 
 Holland 
 
 Legl\oru 
 
 Lisbon 
 
 Lucca some- 
 times 
 
 Lisle 
 
 Madrid and \ 
 all Spain j 
 
 Middleburgh 
 
 Milan 
 
 Palermo 
 
 Petersburg 
 
 Portugal 
 
 Paris 
 
 "Kotterdam 
 
 Rome 
 
 Bouen 
 
 Spain 
 
 Trieste 
 
 Venice 
 
 Vienna 
 
 is 3 calendar months after date. 
 
 do. 
 do. 
 do. 
 do. 
 do. 
 
 do. 
 
 do. 
 
 do. 
 
 do. 
 do. 
 
 do. 
 do. 
 do. 
 do. 
 do. 
 
 do. 
 
 do. 
 
 do. 
 
 do. 
 do. 
 
 3 do. or 90 days do. 
 
 none. 
 
 2 calendar months after date. 
 
 1 do. do. 
 
 1 do. do. 
 
 3 do. do. 
 
 1 do. do. 
 
 2 do. do. 
 same as Vienna. 
 
 3 calendar months after date. 
 14 days after acceptance. 
 
 West Indies 31 do. do. ' 
 
 Zante 3 calendar months after date. 
 
 Zealand 1 do. do. 
 
 Brabant, France, Elanders, and Holland, or Zealand, is 1 
 calendar month. 
 
CH. X.] "presentment for payment. , 423 
 
 payable in a certain number of days, or months, after 
 date, or after sight.' And this remains the modern rule 
 in France, upon the maxim. Dies termini non computatur 
 in terminor Hence, if a Bill is drawn on the fourth day 
 of January, payable in ten days, it becomes due on the 
 fifteenth day of January, and not before.^ 
 
 § 333. But, besides these elements - in the compu- 
 tation of the time, at which Bills of Exchange become 
 due and payable, there is another allowance of time 
 which is of general, although not of universal operation 
 and usage, and is different in different countries.^ This 
 is, the allowance of what are technically called the 
 days of grace ; to which, incidentally, allusion has been 
 
 ^ Italy, Spain, and Portugal, is 2 calendar months. 
 
 Usance between 
 Amsterdam and 
 
 r Prankfort, Nuremberg, Viennaand other places in Germany, 
 Usance between ) „„ Hamburg and Breslau, 14 days after sight, 2 usances, 
 Amsterdam and ^ gg ^^^^^ ^^^ ^^^ ^^^^^^^^ 7 ^^y^ „ 
 
 Chitty on Bills, eh. 9, p. 404, 405 (8lh edit. 1833.) See, also, Beawes, 
 Lex Merc, by Chitty, p. 609, pi. 259 (edit. 1813) ; 1 Bell, Coram. B. 3,ch. 
 8, § 4, p. 410 {5th edit.) ; Pothier de Change, n. 139. 
 
 1 Chitty on Bills, ch. 9, p. 405, 406 (8th edit. 1833) ; Pothier de 
 Change, u. 13, 15, 139, 140, 172 ; Sautayra sur Code de Coram, art. 131, 
 133. 
 
 2 Sautayra sur Code de Coram, art. 131, 132; Pothier de Change, 
 n. 13. 
 
 3 Ibid. 
 
 * Heineccius on this subject says : " Quamvis vero id lerapus vocari 
 soleat/tempus fatale solutionis : quibusdam tamen locis etiam elapso illo 
 tempore, quod in cambio expressum est, acceptanti dari solentinducise ali- 
 quot dierum, e. gr.', Irium, quatuor, quinque, sex, qui voeantur Respil-\e\ 
 Discrelions-Tage, nee non Nach-ve\ Ehren-Tage, de quibus singularera in 
 hac Academia dissertationem scripsit To. Christoph. Francius. Hae in- 
 ducise in terris Brandenburgieis sunt trium dierum, O. C. Brandenl. art. 24, 
 in Saxonia vero ob fidem mercatorara vacillantem plane sunt abolilEe." By 
 the Code of Russia of 1832, a Bill of Exchange payable so many days 
 or months after date, falls due after the expiration of the last day. Nou- 
 guier De Change, Tom. 2, p. 519 ; Code of Russia, art. 351 ; Louis. Law 
 Journ. Vol. 1, p. 78 (1842.) 
 
424 . BILLS OF EXCHANGE. [CH. X. 
 
 already made.' These days of grace, which take their 
 name from their beijig days of indulgence, or respite, 
 granted to the Acceptor for the payment of the Bill, 
 seem to have had their origin at a very early period in 
 the history of negotiable paper. They were, probably, 
 first introduced by the usage of merchants, in the first 
 place, to enable the Acceptor the more easily to make 
 payments of his acceptances,^ as they became due, 
 which, as the payments were all to be made in gold 
 and silver, might sometimes, from the occasional 
 scarcity of the precious metals, become a matter of 
 no small difiiculty and embarrassment ; and, in the 
 next place, to point out to the Holder, what time he 
 might reasonably grant to the Acceptor for such pay- 
 ment, without being guilty of laches, or endangering 
 his right of recourse, upon the ultimate non-payment of 
 the Bill by the Acceptor, against the other parties 
 thereto.^ In both views the usage was, at first, pro- 
 
 i Ante, § 155, 170, 177 ; Chitty on Bills, ch. 9, p. 407 (8th edit. 1833) ; 
 Heinecc. de Camb. cap. 2, ^ 13, 14. 
 
 2 Mr. Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. R. 213, 
 321, speaking on this subject as applicable to promissory notes, says : 
 " The usage of banks, by which days of grace are allowed on nptes pay- 
 able and negotiable in bank, is of the' same character. Days of grace 
 from their very term, originate partly in convenience, and partly in the 
 indulgence of the creditor. By the terms of the note, the debtor has to 
 the last hour of the day on which it becomes payable, to comply .with it ; 
 and it would often be inconvenient to take any steps after the close of 
 day. It is often convenient to postpone subsequent proceedings till the 
 next day. Usage has extended this time of grace generally to three days, 
 and in some banks to four. This usage is made a part of the contract, not 
 by the interference of the legislature, but by the act of the parties. The 
 case cited from 9 Wheat. Rep. 581, is a note discounted in bank. In all 
 such cases the bank receives, and the maker of the note pays, interest for 
 the days of grace. This would be illegal and usurious, if the money was 
 not lent for these additional days. The extent of the loan, therefore, is 
 
CH. X,] 
 
 PRESENTMENT FOE PAYMENT, 425 
 
 bably discretionary and voluntary on the part of the 
 Holder, and gradually, from its general convenience and 
 utility, it ripened into a positive right, as it certainly 
 
 now is.' 
 
 regulated by the act of the parties, and this part of the contract is founded 
 on their act. Since, by contract, the maker is not liable for his note until 
 the days of grace are expired, he has not broken his contract until they 
 expire. 'The duty of giving notice to the indorser of his failure, does not 
 arise until the failure has taken place ; and, consequently, the promise of 
 the bank to give such notice is performed, if it be given when the event 
 has happened." 
 
 1 1 Bell, Coram. B. 3, ch. 2, § 4, p. 410 (5th edit.) ; Kyd on Bills, ch. 
 1, p. 9, 10 (3d edit.) ; Chitty on Bills, ch. 9, p. 407 (8th edit. 1833) ; 
 Heinecc. de Camb. cap. 2, ^ 14. Mr. Kyd (on Bills, ch. 1, p. 9, 3d edit.) 
 gives the old rule or usage, as to days of grace in different countries, thus : 
 " A custom has obtained among merchants, that a person to whom a Bill 
 is addressed, shall be allowed a little time for payment, beyond the term 
 mentioned in the Bill, called days of grace. But the number of these 
 days varies, according to the custom of different places. Great Britain, Ire- 
 land, Bergamo, and Vienna, three days ; Frankfort, out of the time of the 
 fair, four days ; Leipsic, Namuburg, and Augsburg, five days ; Venice, 
 Amsterdam, Rotterdam, Middleburg, Antwerp, Cologne, Breslau, Nur 
 remburg, and Portugal, six days ; Dantzic, Konigsberg, and France, ten 
 days ; Hamburg and Stockholm, twelve days; Naples eight, Spain four- 
 teen, Rome fifteen, and Genoa thirty days ; Leghorn, Milan, and some 
 other places in Italy, no fixed number. Sundays and holydays are in- 
 cluded in the respite days at London, Naples, Amsterdam, Rotterdam, 
 Antwerp, Middleburg, Dantzic, Konigsberg, and France ; but not at 
 Venice, Cologne, Breslau, and Nuremberg. At Hamburg, the day on 
 which the Bill falls due, makes one of the days of grace, but it is not so 
 elsewhere." Mr. Chitty gives the more modern rule, or usage, thus : 
 " The number of these days varies, according to the ancient custom or 
 express law prevailing in each particular country. In the former edition 
 of this work, was given a table of the days of grace allowed in the time of 
 Beawes, but various alterations were introduced by the Code Napoleon 
 and, therefore, the following table, acknowledged to be the most accurate, 
 is substituted : — 
 Altona. Sundays and holydays included, and Bills falling due ) 
 
 on a Sunday or holyday must be paid,' or, in default thereof, >• 12 days. 
 
 protested on the day previous I 
 
 America, 3 days. 
 
 36* 
 
426 
 
 BILLS OF EXCHANGE. 
 
 [CH. 
 
 § 334. In respect to the allowance, or non-allowance, 
 of days of grace, the rule is, that it is to be governed 
 altogether by the law of the place where the Bill of 
 Exchange is payable.^ . Thus, for example, if the Bill 
 is payable in Prance, where, by the present Code of 
 Commerce, no days of grace are allowed, the Bill be- 
 comes due at the regular expiration of the time stated 
 
 Amsterdam. Abolished since the Code Napoleon. . 
 
 Antwerp. Ditto. 
 
 Berlin. When Bills, including them, do not fall due on a Sun- ) 
 day or holyday, in which case, they must be paid or protested >• 
 the day previous i 
 
 Brazil. Rio Janeiro, Bahia, including Sundays, &c., as in the |^ 
 last case , j 
 
 England, Scotland, Wales, and Ireland. .... 
 
 France. Abolished by the Code Napoleon, Livre 1, tit. 8, § 5, 
 ^pl. ,135; 1 Pardess. 189. Ten days were formerly allowed, 
 Pothier, pi. 14, 15 
 
 Frankfort on the Main. Except on Bills drawn at sight, Sun- 
 days and holydays not included 
 
 Genoa. Abolished by the Code Napoleon 
 
 Hamburg. Same as Altona 
 
 Ireland. 
 
 Leghorn, .......... 
 
 Lisbon and Oporto. 15 'days on local, and 6 on foreign Bills ; ) 
 but, if not previously accepted, must be paid on the day they v 
 falldue ^ 
 
 Palermo 
 
 Petersburg. Bills drawn after date are entitled to 10 days' grace, 
 those drawn at sight, to only 3 days' and those at any number 
 of days after sight, none whatever. But Bills, received and 
 presented after they are due, are, nevertheless, entitled to 10 
 days' grace. In these days of grace, are included Sundays and 
 holydays, as also the day, when the Bill falls due, on which 
 days they cannot be protested for non-payment, but, on the 
 morning of the last day of grace, payment must be demanded, 
 and, if not complied with, the Bill must be protested before 
 sunset 
 
 Rotterdam. Abolished by the Code Napoleon. 
 
 Scotland, 
 
 none, 
 none. 
 
 3 days. 
 
 15 days. 
 3 days. 
 
 4 days. 
 
 none. 
 12 days. 
 
 3 days. 
 
 none. 
 
 6 days, or 15 
 
 ^ 10 days, 3, 
 
 &c. 
 
 none. 
 3 days. 
 
 1 Bell, Comra. B. 3, ch. 2, § 4, p. 411 (5th edit.) ; Goddin v. Shipley, 
 7 B. Munroe, R.' 597 
 
CH. X.J 
 
 PKESENTMENT FOR PAYMENT. 427 
 
 on the face of the Bill, and no days of grace are to be 
 allowable.! On the other hand, if the Bill is payable 
 
 14 days, 
 but vary. 
 
 3 days. 
 
 Spain. Vary in different parts of Spain, generally 14 days on 
 foreign, and 8 on inland Bills ; at Cadiz, only 6 days' grace. 
 When Bills are drawn at a certain date, fixed or precise, no 
 days of grace are allowed. Bills drawn at sight are not enti- 
 tled to any days of grace ; nor are any Bills, unless accepted 
 prior to maturity. . . 
 
 Trieste. 3 days on Bills drawn after date, or any term after 1 
 sight, not less than 7 days, or payable on a particular day ; but 
 Bills, presented after maturity, must be paid within 24 hours. 
 - Sundays and holydays are included in the days of grace, and 
 if the last day of grace fall on such a day, payment must be 
 made, or the Bill protested, on the first following open day. 
 
 Venice. 6 days, in which Sundays, holydays, and the days when ") g flays. 
 
 the Bank is shut, are not included J 
 
 Vienna. Same as Trieste. 3 days. 
 
 Wales 3 days, 
 
 Chitty on Bills, ch. 9, p. 407, 408 (8th edit. 1833.) Savary gives the 
 rules in different countries in his time, which may as a matter of curiosity, 
 and sometimes also of practical use, where the days of grace remain 
 unchanged, be useful for consultation : " Par toute la France les protests 
 des Lettres de Change, doivent ^tre faits dans les dix jours apr6s celui de 
 l'^ch6ance ; c'est la disposition precise de I'art. 4 du tit. V. de I'Edit du 
 Commerce ; et dans ies dix jours, I'art. 6 veut que I'on y comprenne ceux 
 de r6ch6ance et du protest ; en quoi il est contraire k Particle 4, qui 
 n'ordonne de faire le protest que dix jours apr^s celui de l'6ch6ance. De- 
 puis il y a eu une Declaration da Roi du mois de Juin, 1686,conform6 k un 
 Arret du Conseil du 5 Avril, de la raeme ann6e, par laquelle Sa Majeste6 
 ordonne que les dix jours accordfes aux porteurs de Lettres de Change pour 
 les protests, ne seront compt6s que du lendemain de l'6ch6ance des Let- 
 tres, sans que le jour de rich^ance y puisse ^tre compris ; le plus sur est 
 de ne pas attendre I'extrSmite, pui'squ'il est libre au porteur de le faire d6s 
 le lendemain de l'6ch6ance. La ville de Lyon a un usage particulier pour 
 les Lettres de Change payables I'un de ses quatre paymens, qui est qu'elles 
 soient protest6es dans les trois jours suivans non f6ii6s ; c'est-^dire, que 
 comme les payemens des Rois durent tout le mois de Mars, il faut protester 
 dans les trois premiers jours d'Avril non f6ri6s. Les payemens de Paques 
 durent tout le mois de Juin, il faut protester dans les trois premiers jours 
 non f6ri6s de Juillet. Les payemens d'Aout durent tont le mois de Sep- 
 
 1 Code de Comm. art- 135 ; Ante, § 155, 177. 
 
428 BILLS OF EXCHANGE. [CH. X. 
 
 in England, then the full days of grace are allowed, 
 according to the law of England ; and the like rule 
 
 tembre, il faut protester dans les trois premiers jours non f6ri6s d'Octobre. 
 Et les payemens des Saints durent tout le mois de D6cembre, il faut pro- 
 tester dans les trois jours de Janvier \es Lettres de Change payables dans 
 ces payemens. Get usage est autoris6 par le R6glement du 2 Juin, 1667, 
 homologae par le Roi le 7 Juillet, 1667, et v6rifi6 en Parlement le 18 Mai, 
 1668. Et I'art. 7 du tit. V. de I'Edit de 1673, declare qu'il n'y est pas <]ferog6. 
 A Londres I'usage est de faire le protest dans les trois jours aprfis r6eh6- 
 ance, ^ peine de rfepondre de la n6gligence ; Et il faut encore observer que 
 si le troisi^me des trois jours est ferife, il faut faire la protest le veille. A 
 Hambourg de m^me pour les Lettres de Change tirdes de Paris et de 
 Rouen ; mais pour les Lettres de Change tiroes de toutesles autres Places 
 il y a dix jours, c'est-4-dire, qu'il faut faire le protest le dixAme jour au 
 plus tard. A Venise I'on ne pent payer les Lettres de Change qu'en 
 banque, et le protest faute de payement des Lettres de Change doit Hte 
 fait six jours apr^s l'6ch6ance ; mais il faut que la banque soit ouverte, 
 parcequelorsque la banque est ferm6e I'on ne peut pas contraindre I'accep- 
 tant k payer en argent comptant, ni faire le protest ; ainsi lorsque les six 
 jours arrivent il faut attendre son ouverture pour demander le payement et 
 faire les protests, sans que le porteur puisse etre reputfe en faute. La 
 banque se ferme ordinairement quarte fois I'annie pour quinze ou vingt 
 jours, qui est environ le 20 Mars, le 20 Juin, le 20 Septefnbre, et le 20 
 D6cembre ; outre ce, en Carnaval elle est ferm6e pour huitou dix jours, 
 et la Semaine Sainte, quande elle n'est point 4 la fin de Mars. A Milan il 
 n'y a pas de terme regl6 pour protester faute de payement ; mais la con- 
 tume est de diflferer peu de jours. A Bergame les protests faute de paye- 
 ment se font dans les trois jours apris l'6oh6ance des Lettres de Change. 
 A Rome I'on fait les protests faute de payement dans quinze jours apr^s 
 I'^chiance. A Aneone les protests faute de payement se font dans la 
 huitaine apr^s l'ech6ance. A Boulogne et i Livourne il n'y a rien de 
 i6gl6 il cet (igard, I'on fait ordinairement les protests faute de payement 
 peu de jours apr^s l'6ch^ance. A Amsterdam les protests faute de paye- 
 ment se font le cinquieme jours aprfes l'6ch6ance, de mfeme k Nuremberg. 
 A Vienne en Autriche la coutume est de faire les protests faut de payement 
 le troisi^me jour aprAs l'6ch6ance. Dans les Places qui sont foires de 
 change, comme None, Francfort, Bolzan, et Lintz, les protests faute de 
 payement se font;le dernier jour de la foire. II n'y a point de Place oil 
 le dfeiai de faire le protest des Lettres de Change soit si long qu'^ G^nes, 
 parce qu'il est de trente jours, suivant le Chapitre 14 du quatriSme Livre 
 des Statuts." Savary, Le Parfait N^gociant, Tom. 1, Part 3, Liv. 1, ch. 
 14, p. 849, 850. See also Heinecc. de Camb. cap. 2, ^ 13, 14. 
 
CH. X.] PRESENTMENT FOR PAYMENT. 429 
 
 prevails as to all other countries.^ Indeed, it may be 
 laid down as a. general rule, that the law of the place, 
 where the Bill is payable, is to govern, not only as to 
 the time, but as to the mode of presentment for pay- 
 ment.® 
 
 § 335. Although the days of gtace ace different in 
 different commercial countries, and are to be computed 
 according to the law of the place, where -the Bill is 
 payable,^ yet, in most, although not in all, of them, the 
 same general rule prevails, that they are to be calcula- 
 ted exclusive of the day, when the Bill would other- 
 wise become due.'' Thus, for example, if a Bill is. 
 drawn in America or England, on the first day of Janu- 
 ary, payable, in either country, one month after date, 
 the days of grace (which, as we have seen, are three 
 days) will begin on the second day of February, and 
 end on the fourth day of February.^ On the other 
 hand, if a Bill of Exchange were drawn in America or 
 England on the first day of January, payable, in either 
 country, at thirty days after date, the days of grace 
 
 1 Pardessus, Droit. Comm. Tom. 5, art. 1489, 1498, 1498 ; Pothier de 
 Change, n. 155, 172, 187 ; Chitty on Bills, ch. 9, p. 409 (8th edit. 1833) ; 
 Kyd on Bills, ch. 1, p. 9 (3d edit,). 
 
 2 Ibid. 
 
 3 Ante, § 155, 170; Story on Conflict of Laws, § 316, 347, 361 ; Po- 
 thier de Change, n. 155 ; Pardessus, Droit Comm. Tom. 5, art. 1495 ; 
 Chitty on Bills, ch. 9, p. 406 to 409 (8th edit. 1833). 
 
 * See Kyd on Bills, p. 9 (3d edit.) ; Beawes, Lex Merc. Bills of Ex- 
 change, pi.. 260. 
 
 5 Ante, ^ 332 ; Chitty on Bills, ch. 9, p. 403, 404, 406, 409, 412 (8th 
 edit. 1833) ; Bayley on Bills, ch. 7, § 1 , p. 245, 249, 250 (5th edit. 1830) ; 
 Pothier de Change, n. 14, 15, 139, 172, 187 ; Sautayra sur Code de Comm. 
 art, 131, 132 ; Mitchill v. Degrand, 1 Mason, R. 176; 1 Bell, Comm. B. 
 3, ch. 3, ^ 4, p. 410, 411 (5th edit.). — Mr. Chitty says : " At Hamburg, 
 the day, on which the Bill falls due, makes one of the days of grace ; but 
 it is not so elsewhere." Chitty on Bills, ch. 9, p. 409 (8th edit. 1833) ; 
 1 Selwyn, Nisi Prius, p. 531, note lOth edit. 1842). 
 
430 BILLS OF EXCHANGE, [CH. X. 
 
 would begin on the first day of February, and end on 
 the third day.^ In other words, in each case, the time 
 of running of the Bill is calculated exclusiye of the day 
 of its date.® The same rule would apply to a Bill, 
 drawn payable at a certain number of day§ after sight ; 
 
 1 Ante, !} 177, 333 ; Pothier de Change, n. 139, 172 ; Chitty on Bills, 
 ch. 9, p. 406 (8th edit. 1833) ; Bayley on Bills, eh. 7, § 1, p. 245 to 247, 
 249, 250 (5th edit. 1830) ; Sautayra sur Code de Comm. art. 131, 132. — 
 Mr. Chitty says : " When Bills, &c., are payable at one, two or more 
 months after date or sight, the mode of computing the time, when they 
 become due, differs from the mode of computation in other cases. In 
 general, when a deed, or Act of Parliament mentions a month, it is con- 
 strued to mean a lunar month, or twenty-eight days, unless otherwise ex- 
 pressed ; but, in the case of Bills and notes, and other mercantile contracts, 
 the rule is otherwise, and, by custom of trade, when a Bill is madepayable 
 at a month or months after date, the computation must, in all cases, be by 
 calendar, and not by lunar months ; thus, when a Bill is dated the first of 
 January, and payable at one month after date, the month expires on the 
 1st of February, and, with the addition of the days of grace, the Bill is 
 payable on the 4th of February, unless that day be a Sunday, and then on 
 the 3d. When one month is longer than the succeeding one, it is said to 
 be a rule not to go, in the computation, into a third month ; thus, on a 
 Bill dated the 28th, 29th, 30th, or 31st of January, and payable one month 
 after date, the time expires on the 28th of February in common years, and, 
 in the three latter cases, in leap year on the 39ih. When the lime is 
 computed by days, the day on which the event happens, is to be excluded." 
 Chitty on Bills, ch. 9, p. 406 (8th edit. 1833). Again, Mr. Chitty (p. 412) 
 adds : " From these inquiries into the mode of calculating time and usances, 
 and days of grace, in relation to Bills, the day of the date of the Bill or 
 note, or, in the case of Bills after sight, the day of acceptance, are always 
 to be excluded, and the usance, or calendar month, or weeks, or days, are 
 to be calculated from, and exclusive of such days ; and, with the exception 
 of Hamburg, the days of grace begin the day after the usances or months 
 expire ; and, if the last of the days of grace fall on a Sunday, Christmas- 
 day, Good Friday, or legal fast, or thanksgiving-day, the Bill or note is 
 due, and must be presented on ihe day before. Thus, if a Bill be dated 
 the 2d of November, 1831, and be payable in England, at two months after 
 date, they expired on the 2d of January, 1832; and, adding the three days 
 of grace, the Bill fell due on the 5th of that month, and must be then pre- 
 sented." Ante, § 143, 144, 330. 
 
 2 Ibid. 
 
CH. X.] PRESENTMENT FOR PAYMENT. 431 
 
 for the time would begin to run, only from the accept- 
 ance thereof, and exclusive of that day, and the days 
 of grace would be allowed accordingly.^ 
 
 § 336. Pothier states the rule of the old French law 
 to be the sq,me, as to the calculation of the days of 
 grace.^ We have already seen, that, by the modern 
 Commercial Code of France, the allowance of any days 
 of grace is totally abrogated.^ But still, in France, the 
 time when a Bill becomes due, if it is payable at a 
 certain number of days after its date or after sight, or 
 at one or more usances, if it is accepted, is (as we 
 have seen) * always calculated exclusively of the day of 
 the date or the sight of the Bill ; so that, if the date, 
 or sight, and acceptance, be on the first day of Janu- 
 ary, and the Bill be payable in thirty days, it becomes 
 payable on the thirty-first day of January, and not 
 before.^ 
 
 § 337. In respect to the days of grace, also, another 
 
 1 Bayley on Bills, ch. 7, § 1, p. 244, 248, 250 (5th edit. 1830) ; Chitty 
 on Bills, ch. 9, p. 406, 409 (8lh edit. 1833) ; Sturdy v. Henderson, 4 
 Barn. & Aid. 592. — Mr. Chitty says : " When a Bill or note purports to 
 be payable so many days after sight, the days are computed from the day 
 the Bill was accepted, or the note presented, exclusively thereof, and not 
 from the date of the Bill or note, or the day the same came to hand, or was 
 presented for acceptance ; for the sight most appear in the legal way, which 
 is, either by the parties accepting the Bill, or by protest for non-acceptance. 
 And, in the case of a bank post-bill, which is really a promissory note, and, 
 in case of a note payable after sight, though the Maker has sight of the 
 instrument, when he makes it, yet a distinct and subsequent presentment 
 must afterwards be made, and the time of payment is reckoned from the 
 day of presentment, exclusive thereof." Chitty on Bills, ch. 9, p. 406, 
 407 (8th edit. 1833) ; Ante, § 330. 
 
 2 Pothier de Change, n. 13, 139, 172. 
 
 3 Code de Comm. art. 135 ; Fardessus, Droit Comm. Tom. 2, art. 401. 
 * Ante, § 332. 
 
 ° Sautayra, Comm. sur Code de Comm. art. 131, 132. 
 
432 BILLS OF EXCHANGE. [CH. X. 
 
 rule, equally important, seems generally, although not 
 universally, to pervade the commercial countries in 
 modern times. It is, that the days of grace are to be 
 all counted consecutively, and in direct succession, 
 without any deduction or allowance, on account of 
 there being any Sundays or holydays, or other non- 
 secular days, intermediate between the first and last 
 day of grace.' Thus, if the first day of grace should be 
 on a Saturday, the last day, under our law, would be 
 on Monday, making no allowance whatsoever for Sun- 
 days, which, in some other cases, (as we have seen.) 
 as, with reference to the times of giving notice of the 
 dishonor of a Bill, is always excluded from the compu- 
 tation of diligence.^ The old French law, in like 
 manner, includes Sunday, and other holydays, in the 
 computation of the days of grace.^ 
 
 ^338. But, although the days of grace are never 
 protracted by the intervention of Sundays, or any other 
 holydays, yet they are, on the other hand, by our law, 
 liable to be contracted and shortened by the last day 
 of grace falling on a Sunday, or other holyday. For, 
 whenever the last day of grace occurs on a Sunday, or 
 
 1 Pothier de Change, n. 139 ; Bayley on Bills, ch. 7, § 1, p. 245 to 250 
 (5th edit. 1830) ; Chitty on Bills, ch. 9, p. 406, 410 to 412 (8th edit. 
 1833) ; Ante, § 233, 234. —Mr. Chitty says : "In Great Britain, Ireland, 
 (and in Amsterdam, Rotterdam, Antwerp, Middleburg, Dantzic, and 
 Konigsberg, whilst days of grace were allowed in those places,) Sundays 
 and holydays are always included in the days of grace, unless the last ; 
 but not so at Venice,'Cologne, Breslau, and Nuremberg." Chitty on Bills, 
 ch. 9, p. 411, 412 (8th edit. 1833). In America, the same rule prevails as 
 in England. In America the 4th of July is treated as a holyday. Cuyler o. 
 Stevens, 4 Wend. R. 566; Ransom «. Mack, 2 Hill, N. Y.Rep. 587,593; 
 Lewis V. Burr, 2 Cain. Cas. in Error, 195. 
 
 3 Ante, § 233, 234. 
 
 3 Pothier de Change,'n. 139, 152. 
 
CH. X,] PKESENTMENT FOE PAYMENT. 433 
 
 other holyday, the Bill becomes due and payable, not 
 on the succeeding day, but on the preceding day.' In 
 other words, the latest business day, occurring within 
 the days of grace, is deemed the day, on which the 
 Bill is due and payable ; and the grace then expires.*^ 
 
 1 Bayley on Bills, ch. 7, ^ 1 , p. 247, 248 (5th edit. 1830) ; 1 Bell, Coram. 
 B. 3, ch. 2, ^ 4, p. 410, 411 (5ih edit.) ; Chilty on Bills, ch. 9, p. 410 to 
 412 (8th edit. 1833} ; Ransom v. Mack, 2 Hill, N. Y. Rep. 587 ; Ante, 
 § 233 ; Homes «. Smilh,2 Appleton, R. 264. — On this subject, Mr. Chitty 
 says : " In this country, at Common Law, if the day on which a Bill would 
 otherwise be due, falls on a Sunday, or great holyday, as Christmas-day, 
 the Bill falls due on the day before ; and where a third day of grace falls 
 on a Sunday, the Bill must be presented on Saturday, the second day of 
 grace ; whereas, otherwise, a presentment on a second day of grace being 
 premature, would be a nullity. And, by 39 and 40 Geo. HI. ch. 43, § 1, 
 where Bills of Exchange and promissory notes become due and payable on 
 Good Friday, the same shall, from and after the first day of June (1800), 
 be payable on the day before Good Friday ; and the Holder or Holders of 
 such Bills of Exchange, or promissory notes, may note and protest the 
 same for non-payment, on the day preceding Good Friday, in like manner, 
 as if the same had fallen due and become payable on the day preceding 
 Good Friday ; and such noting and protests shall have the same efTect and 
 operation at law, as if such Bills and promissory notes had fallen due and 
 become payable on the day preceding Good Friday, in the same manner as 
 is usual in cases of Bills and notes coming due on the day before any Lord's 
 day, commonly called Sunday, and before the feast of the Nativity, or 
 Birthday of our Lord, commonly called Christmas-day. So, with regard 
 to fast days, it is enacted, by 7 and 8 Geo. IV., c. 15, ^ 2, that, from and 
 after the 10th day of April, 1827, in all cases, where Bills of Exchange or 
 promissory notes shall become due and payable on any day appointed by 
 his majesty's proclamation for a day of solemn fast, or a day of thanks- 
 giving, the same shall be payable on the day next preceding such day of 
 fast, or day of thanksgiving ; and, in case of non payment, may be noted 
 and protested on such preceding day ; and that, as well in such cases, as in 
 th& cases of Bills of Exchange and promissory notes, becoming due and 
 payable on the day preceding any such day of fast, or day of thanksgiving." 
 Chitty on Bills, ch. 9, p. 410, 411 (8th edit. 1833). Bussard v. Levering, 
 6 Wheat. 102. 
 
 3 See Howard v. Ives, 1 Hill, N. Y. Rep. 263 ; Wooley v. Clements, 11 
 Alabama, R. 220. — It is said, that a different rule prevails, in respect to 
 contracts not negotiable, and contracts where no days of grace are allowed ; 
 and, therefore, if a common contract falls due on Sunday, the party has 
 
 B. or EX, 37 
 
434 BILLS OP EXCHANaE, [CH. X. 
 
 Thus, if the last day of grace is on Sunday, the Bill is 
 due and payable, and the grace expires, on the pre- 
 ceding Saturday. And, if two holydays should succeed 
 each other, as Sunday, on the twenty-fourth of De- 
 cember, and Christmas, on the twenty-fifth of December, 
 the Bill would be due and payable on the preceding 
 Saturday, the twenty-third of December.' 
 
 § 339. The same rule prevails in France; for, if a 
 Bill become payable at a grea.tfSte, or a fixed holyday, 
 or Sunday, payment is demandable the day before.® 
 
 until the following Monday to perform it. Salter v. Burt, 20 Wend. R. 
 205, where Mr.' Justice Bronson, in delivering the opinion of the Court, 
 said : " This check, having been post-dated, was payable on the day of its 
 date, without any days of grace. Mohawk Bank, «. Broderick, 10 Wen- 
 dell, 304; 13 Wendell, 133. It fell due on Sunday, and the question is. 
 Whether the demand of payment was well made on the previous Satur- 
 day ; or, Whether it should have been made on the following Monday. 
 When days of grace are allowable on a Bill or note, and the third day falls 
 on Sunday, the Bill or note is payable on the previous Saturday. The 
 same custom of merchants, which, as a general rule, allows three days of 
 grace to the debtor, has limited that indulgence to two days, in those cases, 
 where the third is not a day for the transaction of business. But, when 
 there are no days of grace, and the time for payment or performance, 
 specified in the contract, falls on Sunday, the debtor may, I think, dis- 
 charge his obligation on the following Monday. This question was very 
 fully considered in Avery v. Stewart, 2 Conn. R. 69, which was an action 
 on a note, not negotiable, which fell due on Sunday ; and the Court held, 
 that a tender on Monday was a good bar to the action. I agree to the 
 doctrine laid down by Gould, J., that Sunday cannot, for the purpose of 
 performing a contract, be regarded as a day in law, and should, as to that 
 purpose, be considered as stricken from the calendar. In computing the 
 time mentioned in a contract, for the doing of an act, intervening Sun- 
 days are to be counted ; but, when the day for performance falls on Sun- 
 day, it is not to betaken into the computation. The check was presented 
 before it became payable, and the demand and notice were consequently 
 insufficient to charge the Indorser." 20 Wend. R. 206, 207. But see 
 Kilgour V. Mills, 6 Gill & Johns. R. 268, 
 
 J Bayley on Bills, ch. 7, ^ 1, p. 247, 248. 
 
 3 Chitty on Bills, oh. 9, p. 411 (8th edit. 1833) ; Code de Comm. art. 
 133, 134. 
 
CH. X.] PRESENTMENT FOE PAYMENT. 435 
 
 Pothier seems to have thought, that the old French law 
 allowed some distinction in cases of this sort. If the day 
 of the maturity of the Bill should fall on Sunday, he ad- 
 mits, that a demand might be made on the preceding 
 day ; and, if payment be then absolutely refused, the 
 Holder may protest the Bill. But if the Acceptor 
 should answer, that he would pay the next day, and 
 not refuse absolutely, then the Holder is bound to pre- 
 sent it again for payment, on the day of its maturity, 
 although it is Sunday ; and, if payment is then made, 
 it is sufficient. If not then made, a second protest 
 should be made.' But of this some doubt has been 
 entertained in Prance. Heineccius lays down the rule, 
 prevailing in Germany, to be, that, in such a case, the 
 demand of payment should be on the next succeeding 
 day. " iSi in diem feriatum incidit solutionis dies, nee ac- 
 ceptans invitus solvere tenetur, nee prcesentans solutionem 
 urgere vel protestcdioneminterponere potest sed exspectandus 
 est dies sequens." ^ And he traces this doctrine back to 
 the time of Justinian, by whose Code, holydays and 
 days of public festivals, were prohibited from being 
 days for the transaction of secular business.^ 
 
 1 Pothier de Change, n. 140. 
 
 2 Heinecc. de Ca'mb. cap. 4, § 41. 
 
 3 Ibid., note. The passage in the Code is, " Dies festos majestali altis- 
 sitnae dedicates, nullis volumus voluptatibns occupari, nee ullis exactionum 
 vexalionibus profanari. Dominicum itaque diem ita semper honorabilem 
 decernimus, et venerandura, ut a cunctis executionibus excusetur ; nulla 
 qnemquam urgeat admonitio ; nulla fidejussionis flagitetnr exactio ; taceat 
 apparitio ; advocatio delitescat; sit ille dies a cognitionibus alienus ; prs- 
 conis horrida vox silescat ; respirent a controversiis litigantes, et habeant 
 fosderis intervallum ; ad sese simul veniant adversarii non timentes, subeat 
 animos vicaiia, poenitudo ,- pacta conferant, transactiones loquanter. Nee 
 hujus tamen religiosi diei otia relaxantes, obscoenis quemquara patimur to- 
 luptatibus detineri. Nihil eodem die sibi vindicet scena theatralis, aut Cir- 
 
436 BILLS OF EXCHANGE. [CH. X. 
 
 § 340. And respect is paid, not only to the public 
 holydays, and religious fasts and festivals of the coun- 
 try, where the Bill is due and payable, as non-secular 
 days, but also to the religious opinions and usages of 
 the particular sect to which the Acceptor belongs. A 
 case may occur in England or America, where a Bill 
 may be due and payable, without the allowance of any 
 of the three days of grace. Thus, for example, if the 
 first day of grace should be on Saturday, and Monday 
 should be Christmas-day, and the Acceptor should be 
 a Jew, by whose religious usages abstinence from all 
 secular business is interdicted on Saturdays, the Bill 
 would (it is presumed) be payable on Friday, without 
 any grace whatsoever. For the Jew Acceptor would 
 not be compelled to do business on Saturday ; and the 
 laws or usages of the country would not justify a de- 
 mand on Sunday or Christmas.i 
 
 § 841. The reason of all this doctrine seems to be, 
 that, as the allowance of the days of grace is a mere 
 indulgence to the Acceptor, it shall be granted only in 
 cases where it wUl not work any extra delay to the 
 Holder of the Bill ; but he shall be entitled to strict 
 payment at the punctum temporis of the Bill.® If any 
 other rule were adopted, the Holder would be com- 
 pelled to lose the use of his money for four days ; and 
 
 cense certamen, aut ferarum lachryinosa spectacula; et, si in nostrum 
 ortum, aut nataletn celebranda solennitas incident, difiTeratur. Amissionem 
 mililiee, proscriptionemque patrimonii susiinebit, si quis unquam hoc die 
 festo spectaculis interesse, vel cujuscunque judieis apparitor prsetextu ne- 
 gotii publici, seu privati, hsec, quae hac lege statuta sunt, crediderit teme- 
 randa." Lib. 3, tit. 13, 1. 11. 
 
 1 Ante, § 233 ; Bayley on Bills, ch. 7, § 2, p. 271 (5th edit. 1830) ; 
 Chitty on Bills, ch. 8, p. 360 {8lh edit. 1833) ; Id. ch. 10, p. 488, 520 ; 
 Lindo V. UnswoTth, 2 Camp. R. 602 ; Heinecc. de Camb. cap. 4, ^ 41. 
 
 ^ Wooley V. Clements, U Alabama, R. 220. 
 
CH. X.] PRESENTMENT FOK PAYMENT. 437 
 
 thus the period of delay be protracted, to his inconve- 
 nience, and, perhaps, injury. Pothier has very justly 
 remarked, that the . days of grace are, as the name im- 
 ports, a mere favor accorded to the Acceptor, humani- 
 talis ratione, to distinguish them from the time stated on 
 the face and purport of the Bill.^ 
 
 § 342. Another question often arises, as to the kinds 
 of Bills on which days of grace are allowed. In Eng- 
 land days of grace are allowed on all Bills, whether 
 they are payable at a certain time after date, or after 
 sight, or even at sight,^ As to the latter (Bills pay- 
 able at sight,) there has been some diversity of opinion 
 among the profession, as well as among the elementary 
 writers. But the doctrine seems now well established, 
 both in England and America, that days of grace are 
 allowable on Bills payable at sight.^ And the same rule 
 has been applied, as, in strict analogy, it should apply 
 to bank post-notes, payable after sight, for they differ 
 in nothing from ordinary inland Bills of Exchange.^ 
 
 1 Pothier de Change, n. 139; Chitty on Bills, ch. 9, p. 407, 408 (8th 
 edit. 1833); Heinecc. de Camb. cap. 4, ^ 13, 14. — Heineccius says; 
 " Quamvis vero id tempus vocaii soleat tempus fatale solutionis ; quibus- 
 dam tamen locis etiam elapso illo tempore, quod in cambio expressum est, 
 acceptanti dari sclent inducise aliquot dierum e. gr., trium, quatuor, qoin- 
 que, sex, qui vocantur Respit-vel Discretions-Tage, nee non Nach-vel 
 Ehren-Tage." Heinecc. de Camb. cap. 2, § 14 ; Ante, ^ 3E3, note. 
 
 2 Chitty on Bills, ch. 9, p. 407 (8th edit. 1833) ; Bayley on Bills, ch. 7, 
 § 1, p. 244, 245 (5th edit. 1830) ; Bank of Washington v. Triplett, 1 Pe- 
 ters, R. 30. 
 
 3 Chitty on Bills, ch. 9, p. 407, 409 (8th edit. 1833) ; Bayley on Bills, 
 ch. 7, ^ I, p. 249 (5th edit. 1830) ; 1 Selwyn, Nisi Prius, p. 350, 352 
 (10th edit. 1842); Dehers v. Harriot, 1 Show. R. 163; Coleman «. 
 Sayer, 1 Barnard, B. K. R. 303 ; Ante, § 228, and note. 
 
 * Chitty on Bills, ch. 9, p. 406, 409 (8ih edit. 1833) ; Bayley on Bills, 
 
 ch. 7, § 1, p. 244, 245 (5lh edit. 1830) ; 1 Bell Comm. B. 3, ch. 2, § 4, 
 
 p. 411 (5th edit.) ; Brown v. Lusk, 4 Yerger, R. 210. — How would it 
 
 be on a bank post-note, payable at sight? Mr. Chitty (p. 409, 410,) on 
 
 37* 
 
438 BILLS OF EXCHANGE. [CH. X. 
 
 The same rule seems to apply to Bills payable by 
 instalments, and the days of grace are allowed on the 
 
 the subject of Bills payable at sight, says : " With respect to a Bill pay- 
 able at sight, though, from the very language of the instrument, it should 
 seem, that payment onght to be made immediately on presentment, this 
 does not kppear to be so settled. The decisions and the treatises differ 
 on the question, whether or not days of grace are allowed. In France, 
 Pothier, enumerating the various kinds of Bills, and writing at a time, 
 when days of grace were allowed in-France, states, that a Bill, payable at 
 sight, is payable as soon as the Bearer presents it to the Drawee ; hut, in 
 another part of his work, it appears, that this opinion is founded on the 
 words of a particular French ordinance, which cannot extend to Bills pay- 
 able in this country ; however, he assigns as a reason, that it would be 
 inconvenient, if a person who took a Bill at sight, payable in a town 
 through which he meant to travel, and the payment of which he stands in 
 need of, for the purpose of continuing his journey, should be obliged to 
 wait till the expiration of the days of grace, after he presented the Bill ; 
 a reason obviously as applicable to the case of a Bill drawn payable at 
 sight in this as in any other country ; and in France, a Bill payable at a 
 fair, is due the day before the last day of such fair. In Spain, days of 
 grace are not allowed when Bills are drawn payable at sight, nor indeed 
 on any Bill not previously accepted. Beawes, in his Lex Mercatoria, 
 says, that Bills made payable here at sight, have no days of grace allowed 
 although it would be otherwise in the case of a Bill made payable one day 
 after sight. Kyd, in his Treatise, expresses the same opinion. But it 
 appears now to be considered as settled, that days of grace are to be 
 allowed. In Dehors v. Harriot (I Show. 163,) it was taken for granted, 
 that days of grace were allowable on a Bill payable at sight. The same 
 doctrine was entertained in Coleman v. Sayei (Barnard. B. K. R. 303.) 
 And, in another case, where the question was, whether a Bill payable at 
 sight was included under an exception in the Stamp Act, 23 Geo. III., 
 c. 49, ^ 4, in favor of Bills payable on demand, the Court held that it was 
 not ; and Buller, J. mentioned a case before Willes, C. J., in London, in 
 which a jury of merchants were of opinion, that the usual days of grace 
 were to be allowed on Bills payable' at sight. And in Forbes on Bills, 
 (p. 142,) the same practice is said to prevail. And Mr. Selwyn, in his 
 Kisi Prius (p. 339, 4th edit.) observes, that the weight of authority is in 
 favor of such allowance. And they were allowed on such Bills at Am- 
 sterdam." It seems, that, in Louisiana, if a Bill be payable on a fixed 
 day (as on the first day of March,) it is payable on presentment, and no 
 days of grace are allowed. Durnford v. Patterson, 7 Martin, R. 460. 
 This seems to be a peculiar usage, growing out of the law of Spain. 
 
CH. X.] PRESENTMENT FOB, PAYMENT. 439 
 
 falling due of each instalment.^ But Bills, payable on 
 demand are immediately payable on presentment without 
 allowing any days of grace.*^ And the same rule will 
 apply where no time of payment is expressed on the 
 face of the Bill; for then, in contemplation of law, it is 
 payable on demand.' Foreign Bills of Exchange are 
 rarely drawn payable on demand ; but inland Bills are 
 often so drawn. The subject will, therefore, naturally 
 come under our review in a subsequent page.'* 
 
 § 343. In France, under the old law (for, by the 
 modern Code, as we have seen, no days of grace are 
 allowed,^) no days of grace were allowed on Bills pay- 
 able at sight ; and Pothier has given strong reasons in 
 support of this construction of the language.* But, 
 upon all other Bills, to wit, those payable at a usance, 
 or at a certain number of days after sight or date, 
 the days of grace were allowable.'' The like rule pre- 
 vails in Spain ; and probably, also, in most of the 
 countries of continental Europe.^ 
 
 1 Orridge v. Sherborne, The English Jurist, May 13, 1843, p. 403 ; 
 S. C. 11 Mees. & W^elsb. 374. 
 
 2 Bayley on Bills, ch. 7, § 1, p. 233 to 242 (5th edit. 1830) ; Chitty on 
 Bills, ch. 9, p. 407 to 410 (8lh edit. 1833) ; Ante, § 231. 
 
 3 Chitty on Bills, ch. 9, p. 410 (8th edit. 1833.) See Sutton «. Toomer, 
 7 Barn. & Cressw. 416. 
 
 * See Ante, § 228, 231 ; and Post. 
 
 5 Ante, ^ 334, 336 ; Code de Comm. art. 135. 
 
 6 Pothier de Change, n. 12, 172, 198 ; Code de Comm. art. 130 ; Chitty 
 on Bills, ch. 9, p. 409 (8th edit. 1833) ; Ante, ^ 228, and note. 
 
 1 Pothier de Change, n. 13, 139, 172. 
 
 8 Chitty on Bills, ch. 9, p. 407, 409, 410 (8th edit. 1833) ; 1 Bell, 
 Comm. B. 3, ch. 2, §4, p. 410, 411 (5th edit.); Heinecc. de Camb. 
 cap. 2, ^ 13 to 15. Mr. Chitty (p. 407) says : " In most countries, when 
 a Bill is payable at one or more usances, or a Bill or note is payable at a 
 certain time after date, or after sight, or after demand, it is not payable at 
 the precise time mentioned in the Bill or note, but days of grace are 
 allowed. The days of grace (at Hamburg called respite days) which are 
 
440 BILLS OP EXCHANGE. [CH. X. 
 
 § 344. Having ascertained the time when Bills of 
 Exchange are, properly speaking, due and payable, we 
 are naturally led to the consideration of the particular 
 day when they are to be presented for payment. That 
 is, by our law, (as we have seen,) in all cases where 
 they are payable at a certain time, the very day on 
 which they are due, or arrive at maturity.^ Any omis- 
 sion by the Holder to present it on that day for pay- 
 ment, at least if the presentment be not prevented by 
 accident, or irresistible force, or some inevitable cala- 
 
 allowed to the Drawee, are so called, because they were formerly merely 
 gratuitous, and not to be claimed as a right by the person on whom it was 
 incumbent to pay the Bill, and were dependent on the inclination of the 
 Holder ; they still retain the name of grace, though the custom of mer- 
 chants, recognized by law, has long reduced them to a certainty, and esta- 
 blished a right in the Acceptor to claim them, in most cases of foreign or 
 inland Bills, or notes payable at usance, or after date, or after sight, or 
 after a certain event, or even when expressly made payable on a particular 
 day, or even at sight ; but not when expressly made payable on demand." 
 1 Ante, § 325; Bayley on Bills, ch. 7, § 1, p. 247 (5th edit. 1830) ; 
 Lenox v. Roberts, 2 Wheat. R. 373 ; Mills v. Bank of U. States, 11 
 Wheat. R. 431 ; Robinson v. Bland, 2 Appleton, R. 109 ; Chitfy on Bills, 
 ch. 9, p. 402, 403 (8th edit. 1833) ; Id. ch. 10, p. 465 to 467; 1 Bell, 
 Coram. B. 3, ch. 2, § 4, p. 409, 410 (5th edit.). — Mr. Chitty says (p. 402, 
 403) : " Bills, notes, and checks, when payable at a time certain, must be 
 presented on the very day they fall due ; and those which are not payable 
 on a day certain, baton presentment or demand, must be presented, or, at 
 least, put in circulation for that purpose within a reasonable time after 
 they have been received, depending on distance and other circumstances 
 presently noticed. In the first case, a premature presentment before the 
 instrument falls due, would be wholly inoperative, and a delay in present- 
 ing, until even one day after the instrument was at maturity, would dis- 
 charge all the parties dot primarily liable. It was once thought, that the 
 propriety of a presentment for payment, with respect to the time when it 
 should be made, was, in all cases, a question for the determination of a 
 jury ; but the decisions of juries having been found to be very much at 
 variance from each other, and consequently to have rendered the Commer- 
 cial Law, in that respect very uncertain, it is now settled to be the pro- 
 vince of the Court to determine the time when a presentment ought to be 
 made." 
 
CH. X.] PRESENTMENT FOR PAYMENT. 441 
 
 mity, will discharge and exonerate the Drawet and 
 Indorsers of the Bill from all liability to pay the Bill ;* 
 for such due presentment is, ordinarily, a condition 
 precedent to their liability, and constitutes an essential 
 ingredient in their contract.^ The same rule* applies 
 to the case of an acceptance supra protest; for the Ac- 
 ceptor supra protest is (as we have seen) only condi- 
 tionally liable, in case of a refusal of the Draw6e to 
 pay the Bill upon due presentment of it to him at 
 its maturity, and due notice thereof being given to 
 such Acceptor.^ But the case of a Drawee, when he 
 accepts the Bill, is not at all changed or afiPected there- 
 by ; for he remains, according to his original contract, 
 absolutely bound for the payment of the Bill at all 
 times after it becomes due.* 
 
 § 345. The French Law, in the like manner, requires 
 a demand of payment to be made by the Holder upon 
 the Acceptor on the very day of the maturity of the 
 Bill. This is the positive provision of the present Code 
 of Commprce ; ® and it is in entire conformity with the 
 antecedent doctrine maintained in France.® And this, 
 
 1 See Ante, ^ 234, 280 ; Chitty on Bills, ch. 9, p. 389, 391, 422 (8th 
 edit. 1833) ;" Id. ch. 10, p. 524. 
 
 2 Ante, § 234, 280 ; Cfiitty on Bills, ch. 9, p. 384 to 386 (8th edit. 
 1833). 
 
 3 Ante, § 121 to 125 ; Bayley on Bills, ch. 6, ^ 1, p. 178, 179 (5th 
 edit. 1830) ; Chitty on Bills, ch. 8, p. 378, 379, 381 (8th edit. 1833); Id. 
 ch. 9, p. 385 ; Williams v. Germaine, 7 Barn. & Cressw. 458 ; Hoare v. 
 Cazenove, 10 East, R. 391 ; Mitchell v. Bating, 10 Barn. & Cressw. 4. 
 
 4 Ante, § 325 ; Chitty on Bills, ch. 9, p. 384 to 386, 391, 392 (8th edit. 
 1833). 
 
 5 Code de Comm. art. 161 ; Locr6, Esprit du Code de Comm. Tom. 1, 
 art. 161, p. 502, 503. 
 
 6 Pothier do Change, n. 172 to 174 ; Savary, Le Parfait Nigociant, 
 Tom. 1, Pt. 3, ch. 14, p. 847, 851, 853 ; Patdessus, Droit Comm. Tom. 
 5, art. 1497. 
 
442 BILLS OP EXCHANGE. [CH. X. 
 
 also, seems to be the rule recognized by Heineccius, as 
 resulting from the general law in Germany.' 
 
 § 346. So peremptory is this duty of the Holder, to 
 demand payment oji the very day of the maturity of 
 the Bill, that (as we have already seen®) even the 
 bankruptcy, or insolvency, or death of the Acceptor be- 
 fore or at the time of its falling due, will not excuse or 
 justify the omission. The same rule equally applies to 
 making a presentment and demand at the proper place 
 where it should be made, and the omission to do so 
 will not be excused by the bankruptcy, insolvency, or 
 death of the Acceptor.* In the former cases, the de- 
 mand may, and should be, made upon the bankrupt or 
 insolvent personally, or at his domicil, or place of busi- 
 ness, in the same way and manner, as if he were not 
 bankrupt or insolvent.* If his house, or place of busi- 
 ness, is shut up, it will not be sufficient to make a de- 
 mand there ; for the Holder ought to make inquiries, 
 where he may be found ; and, if upon reasonable inqui- 
 
 1 Heinecc. de Camb. cap. 4, § 40. 
 
 2 Ante, § 326. 
 
 3 Ante, ^ 379, 306, 326 ; 1 Bell, Coram. B. 3, ch. 2, ^ 4, p. 413 (5th 
 edit.) ; Chitty on Bills, ch. 9, p. 386 to 389 (8th edit. 1833) ; Bayley on 
 Bills, ch. 7, ^ 1, p. 251 (5th edit. 1830) ; Id. § 2, p. 302 ; Russell v. 
 Langstaffe, Doug. R. 497, 515; Esdaile v. Soweiby, 11 East, R. 114[; 
 Ante, ^ 230, 279; Crossen ». Hutchinson, 9 Mass. R. 205 ; Garland o. 
 The Salem Bank, 9 Mass. R. 408 ; Jackson v. Richards, 2 Caines, R. 
 343 ; Barton v. Baker, 1 Serg. & Rawle, R. 334 ; Sanford v. Dillaway, 
 10 Mass. R. 52 ; Farnum v. Fowle, 12 Mass. R. 89 ; Groton v. Dalheim, 
 6 Greenl. R. 466 ; Shaw v. Reed, 12 Pick. R. 132 ; Hunt v. W^adleigh, 
 26 Maine R. 271 ; Lawrence v. Langley, 14 N. Hamp. 44 ; Robson v. 
 Oliver, 10 Adolph. & Ellis, N. S. 704. 
 
 * Chitty on Bills, ch. 9, p. 386 to 388 (8th edit. 1833) ; Collins v. 
 Butler, 2 Str. R. 1087; Homes v. Bowes, 16 East, 112; 1 Maule & 
 Selw. 555 ; Gioton v. Dalheim, 6 Greenl. R. 466 ; Shaw v. Reed, 12 
 Pick. 132. 
 
CH. X.'] PBESENTMENT FOR PAYMENT. 443 
 
 ries, the fact can be ascertained, of the place where he 
 may be found, presentment should be made there.^ In 
 case of the death of the Acceptor, the Holder should 
 make presentment for payment to the executor or ad- 
 ministrator of the deceased, if one has been appointed, 
 and he, or his residence, can be ascertained upon rea- 
 sonable inquiries; find, if there be no executor or ad- 
 ministrator, or he or his place of residence cannot be 
 found, then presentment for payment should be made 
 at the house, or other domicil of the deceased.'^ If the 
 acceptance be by a firm, and one partner dies before the 
 maturity of the Bill, the presentment should be made 
 to the survivors, and not to the personal representative 
 of the deceased.^ We shall hereafter have occasion to 
 notice other considerations applicable to this part of the 
 subject. 
 
 § 347. The old^ French law was equally as expressive 
 as ours, that the bankruptcy or insolvency of the Ac- 
 ceptor, at the maturity of the Bill, constitutes no 
 excuse for the want of a due presentment for payment, 
 by the Holder, at that time.^ The modern Code of 
 Commerce positively declares, that the Holder of a Bill 
 of Exchange is not dispensed from protesting the Bill 
 
 1 Chitty on Bills, ch. 9, p. 386, 387 (8th edit. 1833) ; Molloy, B. 2, ch. 
 10, § 34 ; Ante, ^ 233 ; Spies v. Gilmore, 1 Comstock, R. 321 ; Taylor v. 
 Snyder, 3 Denio, R. 151 ; Story, Prom. Notes, ^ 264. 
 
 a Chitty on Bills, ch. 9, p. 389, 401 (8lh edit. 1833) ; Bayley on Bills, 
 ch. 7, § 1, p. 218, 219 (5th edit. 1830) ; Id. § 3, p. 286 ; Molloy, B. 3, ch. 
 10, ^ 34 ; Magrnder v. Union Bank of Georgetown, 3 Peters, R. 87 ; Ju- 
 niata Bank v. Hall, 16 Serg. & Rawle, 157 ; Ante, § 235 ; 1 Bell, Comm. 
 B. 3, ch. 2, ^ 4, p. 413 (5th edit.) 
 
 3 Cayuga County Bank v. Hunt, 2 Hill, N. Y. R. 635. 
 
 * Pardessus, Droit Comm. Tom. 2, art. 424 ; Id. Tom. 5, art. 1497 ; 
 Pothier de Change, n. 147 ; Savary, Le Parfait N6gociant, Tom. 2, Pt, 
 45, p. 360 ; Ante, § 819, § 326. 
 
444 BILLS OF EXCHANGE. [OH. X. 
 
 for the non-payment thereof, either by its having been 
 protested for non-acceptance, or by the death or failure 
 of the Drawee.^ And it adds, that, in case of the 
 failure of the Acceptor, before the Bill becomes due, 
 the Holder may cause it to be protested, and have his 
 recourse against the other parties to the Bill for pay- 
 ment, or for security for payment.^ The French Law 
 seems even to go further, and to require, that the de- 
 mand and protest should be made in cases of such 
 bankruptcy and insolvency, although, by the law of the 
 place where the Bill is payable, no demand or protest, 
 in such a case is required.' Pardessus puts this as 
 clear, and says, that, if a Bill be drawn in France, pay- 
 able ia a foreign country, it will be necessary, although 
 the law of the place dispenses with a protest in case of 
 such bankruptcy or insolvency, that the Holder should 
 still protest the Bill, under the peril of otherwise losing 
 his recourse against the French Drawer ; for, in such a 
 case, the law of France, where the contract between 
 the Drawer and the Payee or other Holder, was made, 
 is to govern, as to the acts to be done, to entitle the 
 latter to a recovery.* And he applies the same rule as 
 to the remedy of the Holder against the Indorsers, under 
 the like circumstances.' 
 
 § 34^. If the Bill of Exchange be lost by the Holder 
 before, or at the time when it becomes "due, he will 
 still be bound to demand payment thereof from the 
 Acceptor at its maturity ; and a tender should be made 
 
 1 Code de Coram, art. 163 ; art. 187. 
 
 2 Ibid. ; Sautayra aur Code de Cotnin. art, 163, p. 110 ; Ante, § 322. 
 
 3 Pardessus, Droit Comm. Tom. 5, art. 1497; Ante, ^ 177, note. 
 
 4 Ibid. . 
 
 B Ibid. But see Ante, ^ 176, 177, and note. 
 
CH. X.] PKESENTMENT FOE PAYMENT. 445 
 
 of indemnity to the Acceptor, ilP he should pay the Bill ; 
 and, if he should refuse, due protest and notice of the 
 non-payment should be given, as in other cases, to the 
 Drawer and Indorsers.^ But the Acceptor is not, under 
 such circumstances, bound to pay the Bill, if lost, al- 
 though he may, at his election, do so ; for he is entitled, 
 in all cases, to have the Bill delivered up to him upon 
 payment thereof, as a voucher therefor ; and the proper 
 remedy for the Holder, in case of a refusal to pay, is in 
 equity, and not at law.® 
 
 § 349, But, in addition to the rule already consi- 
 dered, that the presentment for the payment of the Bill 
 must be made on the very day when it becomes due, 
 another inquiry naturally arises ; and that is, At what 
 hours during the day the presentment is proper and 
 allowable ? The general answer here (as in cases of 
 presentment for acceptance) is, that it must be present- 
 ed within reasonable hours during the day.^ If there be 
 
 ' Chitty on Bills, ch. 6, p. 288, 289 (8th edit. 1833) ; Id. ch. 9, p. 391, 
 398 ; Marius on Bills, p. 19; Beawes, Lex Merc, by Chitty, Vol. 1, p. 
 588, 589, pi. 183, 185 (edit. 1813) ; Thaokray v. Blackett, 3 Camp. 164 ; 
 Smith V. Rockwell, 2 Hill, N. Y. R. 482 ; Blackie v. Pidding, 6 Manning, 
 Granger & Scott, 196. Pothier states the same as the rule in France. 
 Pothier de Change, n. 145. 
 
 2 Chitty on Bills, ch. 6, p. 289, 291 to 296 (8th edit. 1833) ; Bayley on 
 Bills, ch. 9, p. 372 to 374 (5th edit. 1830) ; Hansard v. Robinson, 7 Barn. 
 & Cressw. 90 ; Pierson v. Hutchinson, 2 Camp. R. 211 ; S. C. 6 Esp. K. 
 126 ; Mayor o. Johnson, 3 Camp. R. 323 ; Davis v. Todd, 4 Taunt. R. 
 602 ; Ramuz v. Ciowe, 1 Welsby, Hurlstone & Gordon, 167 ; Ex parte 
 Greenway, 6 Ves. 812 ; Mossop v. Eadon, 16 Ves. 430. In this last case 
 a distinction was taken between Bills not negotiable, and those which are 
 negotiable, and indorsed in blank. And in other cases, a like distinction, 
 where the Bills were specially indorsed or awarded. Chitty on Bills, ch. 
 6, p. 293, 294 (8th edit. 1833) ; Story on Promiss. Notes, ^ 446, 451. 
 But see Blackie «. Pidding, 6 Manning, Granger & Scott, 196. 
 
 3 Ante, 4 328. 
 
 B, or EX. 38 
 
446 BILLS OF EXCHANGE. [CH. X. 
 
 a known usage in the pface, that all Bills are to be pre- 
 sented for payment within certain limited hours, the 
 presentment must be made within those hours.' If the 
 Bill be payable at a banker's, it must be presented 
 there within the usual banking hours.** If payable 
 generally, and presented for payment at the counting- 
 room, or other place of business of the Acceptor, it must 
 be within the usual counting-house hours, or hours of 
 business, or, at all events, while there is some person 
 there who is authorized to pay, or refuse payment of the 
 Bill.3 If presented at the dwelling-house of the Accep- 
 tor, it must be within the hours at which the family are 
 up, and the Acceptor may reasonably transact business.* 
 If, in either of these cases, there be an omission, on the 
 part of the Holder, of his proper duty, as, if he makes 
 a presentment at a banker's out of banking hours, or 
 at a counting-house out of the usual hours, and when it 
 is shut, or at the dwelling-house, when the faniily have 
 retired to rest, or before they have risen, and are in 
 a condition to attend to business, the presentment will 
 be a mere nullity, and be without any legal effect.' In 
 
 1 Ante, § 236 ; Bayley on Bills, ch. 7, ^ 1, p. 224 (5th edit. 1830) ; 
 Chiity on Bills, ch. 7, p. 305 (8th edit. 1833) ; 1 Bell, Comm. B. 3, ch. 2, 
 ^ 4, p. 411, 412 (5th edit.) 
 
 2 Parker v. Gordon, 7 East, R. 385 ; Elford v. Teed, 1 Maule & Selw. 
 R. 28 ; Ante, ^ 236. 
 
 3 Garnett v. Woodcock, 1 Starkie, R. 476 ; S. C. 6 Maule & Selw. 
 44 ; Ante, ^ 236, 305; Bayley on Bills, ch. 7, § 1, p. 224 to 226 (5th 
 edit. 1830.) 
 
 * Barclay v. Bailey, 2 Camp. R. 527 ; Morgan v. Davison, 1 Starkie, 
 R. 114; Triggs v. Newnhan, 10 Moore, R. 249; Wilkins v. Jadis, 
 2 Barn. & Adolph. 188 ; Cayuga County Bank v. Hunt, 2 Hill, N. Y. 
 Rep. 635. In this last case it was said by the Court, that, except where 
 a Bill or note is due from a bank, the proper hours of business range 
 through the whole day, down to bed-time in the evening. Ante, ^ 336. 
 
 s Chiity on Bills, ch. 9, p. 421, 423, 424 (8th edit. 1833) ; Bayley on 
 
CH. X.] PRESENTMENT FOR PAYMENT. 447 
 
 all these cases the same rule applies, as in cases of 
 presentment for acceptance.^ 
 
 § 350. In respect to presentment for payment, also, 
 it may be here stated, that a distinction has been some- 
 times suggested between that and presentment for accep- 
 tance. In the latter case, it is said, that the presentment 
 should be to the Drawee personally, if practicable, or, 
 in other words, that the Holder should see the Drawee, 
 and ask acceptance of him in person;^ but, in cases of 
 
 Bills, ch. 7, § 1, p. 224 to 226 (5th edit. 1830) ; Ante, § 228, and note, 
 § 236, 305. 
 
 ^ Ante, § 236, 305. — Mr. Chitty says : — "In considering the necessity 
 foi a due presentment for acceptance and for payment, and the time when 
 the same should be made, we have anticipated this inquiry ; and it may 
 suffice to observe, that, on principle, perhaps, more exactness and punctu- 
 ality in a presentment for payment may reasonably be required than even 
 in a notice of non-payment ; because a prompt and regular demand of pay- 
 ment may frequently obtain payment from an Acceptor of a Bill, and 
 Maker of a note, who is in a state of progressive insolvency, when a sub- 
 sequent application of the same nature would become unavailing ; whereas, 
 the loss of a day or more in giving notice of non-payment, rarely makes 
 any actual difference. The rules applicable to delay in notice of non-pay- 
 ment, will in general apply, and with more force, to delay in due demand 
 of payment. And, even if an hour be lost, the laches will in some cases 
 deprive the Holder of all remedy against any party not primarily liable." 
 Chitty on Bills, ch. 9, p. 423, 424 (8lh edit. 1833.) 
 
 2 Chitty on Bills, ch. 9, p. 400 (8th edit. 1833) ; Id. ch. 7, p. 305, 
 306. — On this subject, Mr. Chitty (p. 400) says : " We have seen, that, 
 in making a demand of an acceptance, the party ought if possible to see 
 the Drawee personally. But a demand of payment need not be personal; 
 it being sufficient if it be made at the house of the Acceptor, unless, in- 
 deed, it be shut up, and no person there competent to give an answer, and 
 the Acceptor of the Bill, or Maker of the note, has removed, in which 
 case the Holder must endeavor to find out to what place he has removed, 
 and make the presentment there. Where a Note was made payable at 
 Guilford, and the Holder presented it when due, at two counting-house3 
 there, the Maker then living in London, this was held to be equivalent to 
 a presentment to the Maker himself. If the Drawee has, by his accept- 
 ance, appointed a place for payment, the Bill should be presented accord- 
 ingly, or, in some cases, it may be to his agent, who has been used to pay 
 
448 BILLS OP EXCHANGE. [CH. X. 
 
 presentment for non-payment, a personal presentment 
 to the Drawee is' not necessary. In a modified sense, 
 this may be true, as a matter of prudence and conve- 
 nience ; but there does not seem to be any just founda- 
 tion for this distinction, as a matter of duty, and not of 
 mere courtesy on the part of the Holder. When, upon 
 a presentment for acceptance, the Drawee does not hap- 
 pen at the time of calling, to be foun€ at his house or 
 counting-room, but is temporarily absent, and no one is 
 there authorized to give an answer, whether the Bill 
 will be accepted, or not, in such a case, it would seem 
 that the Holder is not bound to consider it as a refusal 
 to accept, but he may wait a reasonable time for the 
 return of the Drawee ; and even waiting and presenting 
 the Bill anew on the next day will not be an unreason- 
 able time, especially as the Drawee has, ordinarily, a 
 right to have the Bill left a day, to enable him to ex- 
 amine and decide, whether he will accept or not.' But 
 
 money for him." See also Buxton v. Jones, 1 Mann. & Grang. R. 83. — 
 In Buxton v. Jones, 1 Mann. &: Giang. R. 83, a Bill of Exchange was 
 presented for payment at the door of a house where the Drawee was 
 described as living, to a lodger, who was coming fromjhe passage of the 
 house into the street. The Acceptor had, removed to another residence, 
 known to the occupier of the house but not to the lodger ; and it was not 
 shown, that he had left there any funds for payment of the Bill. It was 
 held, that the demand of payment was sufficient. On that occasion, the 
 Court said, that it was not necessary to make presentment to the Acceptor 
 personally. If he chose to remove from the house pointed out by his sig- 
 nature to the Bill, as his residence, he was bound to leave sufiScient notice 
 on the premises. If the Holder goes to the House of the Acceptor and 
 finds it shut up, that is a sufficient presentment. See also Hine v. AUeby, 
 4 Barn. & Adolph. 624. The case of Cheek v. Roper, 5 Esp. R. 175, is 
 cited for the distinction, but it does not support it. 
 
 1 Ante, f} 237 ; Chitty on Bills, oh. 7, p. 306, 311 (8th edit. 1833) ; 
 2 Bell, Comm. B. 3, oh. 2, ^ 4, p. 409 (5th edit.) ; Bank of Washington 
 B.' Triplett, 1 Peters, R. 25 ; Mitchell v. Degrand, 1 Mason, R. 176. 
 
CH. X.] PRESENTMENT FOE PAYMENT. 449 
 
 no such delay to the next day is allowable, if the Ac- 
 ceptor is not at home on the day when the Bill becomes 
 due ; but a demand must then be made, and, if there 
 be no one then ready at the place to pay the Bill, it 
 should be treated as dishonored, and protested for non- 
 payment. However, if, at the moment of calling for 
 payment, the Acceptor is out, the Holder is not compel- 
 lable to treat th6 case as one of non-payment ; but he 
 may wait, and call again, if he shall so choose, at any 
 reasonable hour of the same day ; for he has the busi- 
 ness hours, or reasonable hours, of the whole day, to de- 
 mand payment. 
 
 § 351. In the next place, At what place is the pre- 
 sentment for payment to be made ? The general rule, 
 as in cases of presentment for acceptance, is, at the 
 city, town, or other place, in which the Acceptor has 
 his home or domicil, or his house of business.' If both 
 are in the same city, town, or other place, the pre- 
 sentment may be at either, with the qualification that it 
 be within reasonable hours.^ The same rule applies, if 
 the Acceptor has his home or domicil in one city, town, 
 or other place, and his house of business in another. 
 A due presentment at either will be sufficient, and a 
 presentment at both is not required.^ If the Acceptor 
 has changed his place of domicil or business, in the in- 
 termediate period between the acceptance and the 
 
 1 Ante, § 235, 297, 305 ; Chitty on Bills, ch. 9, p. 398 to 400 (8th edit. 
 1833) ; Id. ch. 8, p. 378, 379; Id. ch. 7, p. 305 ; Mitchell v. Baring, 10 
 Barn. & Cressw. 4, 9. See Scarlett on the style of Exchanges, cited in 
 10 Barn. & Cressw. 11, note; 1 Bell, Comm. B. 3, ch. 2, ^ 4, p. 412 
 (5th edit.) ; Pardessus, Droit Comm. Tom. 2, art. 186 ; Shamburg v. 
 Comraagere, 10 Martin, R. 18 ; Oakey ». Beavois, 11 Louis. R. 489. 
 
 2 Ibid. ; Ante, § 235 ; Chitty on Bills, ch. 7, p. 305 (8th edit. 1833.) 
 
 3 Ante, § 236, 305 ; Chitty on Bills, ch. 7, p. 305 (8th edit. 1833.) 
 
 38* 
 
450 , BILLS OP EXCHANGE. [CH. X. 
 
 maturity of thq Bill, the presentment must be at the 
 new domicil, or new place of business, if, by reasonable 
 diligence and inquiries, it can be found, and it is within 
 the same State.^ If the Acceptor has absconded, or 
 
 1 Ante, § 305, 308; 1 Bell, Comm. B. 3, ch, 2, ^ 4, p. 413 (5th edit.); 
 Chitty on Bills, ch. 9, p. 400, 401 (8th edit. 1833) ; Id. ch. 8, p. 378 to 
 380 ; Ante, § 229, 235, 299 ; M'Gruder u.Bank of Washington, 9 Wheat. 
 R. 598 ; Anderson v. Drake, 14 Johns. R. 114 ; Louis. State Insor. Co. v. 
 Shamburg, 14 Martin, R. 511; Franklin v. Verbois, 6 Louis. R. 730; 
 Wilcox V. McNutt, 2 Howard, Mississippi R. 776. What inqui- 
 ries will be deemed reasonable and sufficient, is a point admitting of no 
 positive answer ; but must depend upon the circumstances of each parti- 
 cular case. In Ransom v. Mack, 2 Hill, N. Y. R. 587, where a notary, 
 ignorant of the residence of A., the first indorser, to whom he was about 
 sending notice of dishonor by the mail, applied to the second indorser, who 
 designated the post-office at B. as the one to which a letter to A. should 
 be directed, and it was sent accordingly ; it was held sufficient, although 
 A. did not receive that letter, and was accustomed to receive his letters at 
 another post-office nearer to his residence. See also Carroll v. Upton, 2 
 Sandford, Superior Ct. N. Y. R. 172 ; Bank of Utica v. Bender, 21 Wend. 
 R. 643 ; CatskiU Bank v. Stall, 15 Wend. R. 364 ; S. C. 18 Wend. R. 466 ; 
 Bank of Utica v. Davidson, 5 Wend. R. 587. S^e Bayley on Bills, ch. 
 7, § 1, p. 218, 219 ; Id. ch. 7, § 2, p. 279 to 283 (5th edit. 1830) ; Chitty 
 on Bills, ch. 10, p. 516, 524, 525 (8lh edit. 1833) ; Ante, § 299, and note. 
 See also Buxton v. Jones, 1 Mann. & Grang. 83 ; Bank of Utica v. Phil- 
 lips, 3 Wend. R. 408; McMurtrie v. Jones, 3 Wash. Cir. R. 206 ; Bate- 
 man V. Joseph, 12 East, R. 433 ; McClanahan v. Brandon, 13 Martin, R. 
 321 ; Chapman v. Lipscombe, 1 Johns. R. 294 ; Reid v. Payne, 16 Johns. 
 R. 216 ; Smyth v. Hawthorne, 3 Rawle, R. 335; Freeman v. Boynton, 7 
 Mass. R. 483 ; Bondi). Farnham, 5 Mass. R. 170 ; Franklin v. Verbois, 6 
 Louis. R. 727 ; Bank of U. States v. Hatch, 6 Peters, R. 250. On this 
 subject, Mr. Chancellor Kent (3 Kent, Comm. Lect. 44, p. 95, 96) says : 
 "If the Bill has been accepted, demand of payment must be made when 
 the Bill falls due ; and it must be made by the Holder, or his agent, upon 
 the Acceptor, at the place appointed for payment, oi at his house, or 
 residence, or upon him personally, if no particular place be appointed, and 
 it cannot be made by letter through the post-office. But there is a great 
 deal of perplexity and confusion in the cases on this subject, arising from 
 refined distinctions and discordant opinions ; and it becomes very difficult 
 to know, what is precisely the law of the land, as to the sufficiency of the 
 demand upon the Maker of the Note, or the Acceptor of the Bill. If 
 there be no particular and certain place identified and appointed, other 
 
CH. X.] PRESENTMENT FOR PAYMENT. « 451 
 
 his place of residence cannot, upon reasonable inquiries, 
 be fouhd, that will be a sufficient excuse for non-pre- 
 sentment.^ If the Acceptor has gone abroad, or left 
 the country, then it will be sufficient to make present- 
 ment and demand of payment of his wife, or family, at 
 his house, or at his counting-house, if it is open ; or, of 
 any known agent, to whom he has confided his business 
 generally during his absence, or on account of his 
 leaving the country.^ 
 
 §' 352. If, at the time of presentment for payment, 
 the Holder finds that the dwelling-house, or the place 
 of business of the Acceptor, is shut up, it is said, that 
 
 than a city at large, and the party has no residence there, the Bill 
 may he protested in the city, on the day without inquiry, for that 
 would be an idle attempt. The general principle is, that due diligence 
 must be used to find out the party, and make the demand ; and the in- 
 quiry will always be. Whether, under the circumstances of the case, due 
 diligence has been used. The agent of the Holder, in one case, used the 
 utmost diligence, for several weeks, to find the residence of the Indorser, 
 in order to give him notice of the dishonor of the Bill, and then took a 
 day to consult his principal before he gave the notice, and it was held suf- 
 ficient. If the party has absconded, that will, as a general rule, excuse 
 the demand. If he has changed his residence to some other place, within 
 the same state or jurisdiction, the Holder must make endeavors- to find it, 
 and make the demand there; though, if he has removed out of the State, 
 subsequent to the making of the note, or accepting the Bill, it is suflicient 
 to present the same at his former place of residence. If there be no other 
 evidence of the Maker's residence than the date of the paper, the Holder 
 must make inquiry at the place of date; and the presumption is, that the 
 Maker resides where the note is dated, and that he contemplated payment 
 at that place. But it is presumption only ; and, if the Maker resides else- 
 where within the State, when the note falls due, and that be known to the 
 Holder, demand must be made at the Maker's place of residence." 
 
 1 Ibid. ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 413 (5th edit.) ; Ante, J 
 299., 327 ; Belmont Bank v. Patterson, 17 Ohio R. 78 ; Taylor v. Snyder, 
 3 Denio, R. 146. 
 
 3 Ibid. ; Ante, § 229, 235 ; Bayley on Bills, ch. 7, ^ I, p. 218, 219 (5th 
 edit. 1830) ; Whittier v. Graffam, 3 Greenl. R. 82. But see Louis. State 
 Idsut. Co. v. Shamburg, 14 Martin, R. 511. 
 
452 
 
 BILLS OF EXCHANGE. [CH. 
 
 he is entitled to treat the Bill, as dishonored by a re- 
 fusal of payment' At least, this is true (for' there 
 seems some discrepancy in the authorities,) if the Holder 
 makes diligent inquiries to find the Acceptor, and he 
 cannot be found.^ If the Acceptor, between the time 
 of the acceptance, and the time of the maturity of the 
 Bill, changes his domicil to another State, or to a fo- 
 reign country, it is not necessary for the Holder tti 
 send it, or present it for payment at the new domicil, in 
 such other State or country ; but it will be a sufficient 
 excuse for a non-presentment of the Bill at all, or at 
 least, a presentment at his last domicil in the State, 
 where the acceptance was made, will be sufficient to all 
 intents and purposes.' 
 
 1 Ante, § 327 ; Hine v. Alleby, 4 Barn. & Adolph. 624; Shedd v 
 Brett, 1 Pick. R. 413 ; Williams v. Bank of U. Slates, 2 Peters, R. 96. 
 But see Chilly on Bills, ch. 9, p. 386, 387 (8lh edit. 1833) ; Collins v. 
 Butler, 2 Sir. R. 1087. See Poihier de Change, n. 147; Ante, § 299, 
 and note. [A notary having a bill for the purpose of demanding payment 
 of an Acceptor, who had a short time before been a boarder at a public 
 hotel in Cincinnati, was held to be under no obligation, when informed at 
 the hotel that the Acceptor had gone down the river to be absent some 
 days, to present the Bill or make demand of payment of any one there, in 
 order to fix the liability of an Indorser. Belmont Bank v. Patterson, 17 
 Ohio R. 78.] 
 
 2 Chilly on Bills, ch. 9, p. 386, 387, 400, 418 (8th edit. 1833); Col-, 
 lins V. Builer, 2 Str. R. 1087; Bayley on Bills, ch. 7, § 1, p. 218 (5th 
 edit. 1830.) 
 
 3 M'Gruder D. Bank of Washington, 9 Wheat. R. 598; Anderson v. 
 Drake, 14 Johns. R. 114 ; Hepburn v. Toledano, 10 Martin, R. 643. In 
 M'Gruder v. Bank of Washington (9 Wheat. R. 599 to 602,) Mr. Justice 
 Johnson, in delivering the opinion of the Supreme Court of the United 
 States, said : " At the time of drawing the note, and until within ten days 
 of its falling due, the Maker was a housekeeper in the District of Colum- 
 bia. But he then removed to the State of Maryland, to a place within 
 about nine miles of the District. The case admits, that neither the Holdei 
 of the note, nor the notary, knew of his removal, or place of residence ; 
 but the circumstances of his removal had nothing in ihem to sanction its 
 being construed into an act of absconding. The words of the admission 
 
CH. :s.] PRESENTMENT FOB PAYMENT. , 453 
 
 § 353. If the Bill is drawn upon the Drawee, domi- 
 ciled in one place, and is payable in another place, and 
 
 to this point are, that he 'went to the house, where the said Patrick had 
 last resided, and from which he had removed, as aforesaid, in order there 
 to present the said note, and demand payment of the same ; and not find- 
 ing him there, and being ignorant of his place of residence, returned the 
 said note under protest.' The alternative, in which the judgment of the 
 Court is to be rendered, is not very appropriately stated ; but, since the 
 absurdity cannot have entered into the minds of the parties, that, not 
 knowing of the removal, or present abode of the Drawer, the Holder was 
 still bound to follow him into Maryland, we will const ue the submission 
 with reference to the facts admitted ; and then the question raised is, 
 Whether the Holder had done all that he was bound to do, to excuse a 
 personal demand upon the Maker. On this subject, the law is clear ; a de- 
 mand on the Maker is, in general, indispensable ; and that demand must be 
 made at his place of abode, or place of busiriess. That it should be strictly 
 personal, in the language of the submission, is not required ; it is enough, 
 if it is at his place of a'bode, or, generally, at the place wliere he ought to 
 be found. But his actual removal is here a fact in the case, and in this, as 
 well as every other case, it is incumbent upon the Indorsee to show due 
 diligence. Now, that the notary should not have found the Maker at his 
 late residence, was the necessary consequence of his removal, and is en- 
 tirely consistent with the supposition of his not having made any of those 
 inquiries, which would have led to a development of the cause, why he 
 did not find him there. N'on constat, but he may have removed to the 
 next door, and the first question would, most probably, have extracted in- 
 formation, that would have put him on further inquiry. Had the house 
 been shut up, he might, with equal correctness, have returned, 'that he 
 had not found him ; ' and yet, that clearly would not have excused the 
 demand, unless followed by reasonable inquiries. The party must, then, 
 be considered as lying under the same obligations, as if, having made in- 
 quiry, he had ascertained that the Maker had removed to a distance of 
 nine miles, and into another jurisdiction. This is the utmost his inquiries 
 could have extracted, and marks, of course, the outlines of his legal 
 duties. Mere distance is, in itself, no excuse from demand ; but, in gene- 
 ral, the Indorsee takes upon himself the inconvenience resulting from that 
 cause. Nor is the benefit of the post-ofiice allowed him, as in the case of 
 notice to the Indorser. But the question, on the recent removal into ano- 
 ther jurisdiction is a new one, and one of some nicety. In case of original 
 residence in a State different from that of the Indorser, at the time of 
 taking the paper, there can be no question ; but how far, in case of subse- 
 quent and recent removal to another State, the Holder shall be required 
 to pursue the Maker, is a question not without its difficulties. We think, 
 
454 
 
 BILLS OP EXCHANGE. [CH- 
 
 is accepted by him, a presentment should be made for 
 payment at the latter place/ Thus, if a Bill is drawn 
 on the Drawees at Liverpool, payable in London, if 
 accepted, the presentment for payment must be in Lon- 
 don, if any particular place is there pointed out where 
 payment may be demanded. If none is pointed out, 
 and no person, upon due inquiries, can be found by 
 whom the Bill will be paid ; it may be protested in 
 London for non-payment for that very cause.^ If the 
 Bill has not been accepted by the Drawee, but has 
 been accepted, supra protest, by a third person, (who, 
 of course, from what has been already said,* is only 
 liable if the Drawee shall refuse payment upon due 
 maturity of the Bill,) the presentment and demand of 
 payment should be made of the Drawee at Liverpool, 
 and not at London ; because there has been no accept- 
 ance of the Bill, and consequently the Drawee has not 
 
 that reason and convenience are in favor of sustaining the doctrine, that 
 such a removal is an excuse from actual demand. Precision and certainty 
 are often of more importance to the rules of law, than iheir abstract just- 
 ice. On this point, there is no other rule that can be laid down, which 
 will not leave too much latitude as to place and distance. Besides which, 
 it is consistent with analogy to other cases, that the Indorser should stand 
 committed, in this respect, by the conduct of the Maker. For his ab- 
 sconding, or removal out of the kingdom, the Indorser is held, in Eng- 
 land, to stand committed ; and, although from ih^ contiguity, and, in some 
 instances, reduced size of the States, and their union under the General 
 Government, the analogy is not perfect ; yet, it is obvious, that a removal 
 from the sea-board to the frontier States, or vice vcrsd^ would be attended 
 with all the hardships to a Holder, especially one of the same State with 
 the Maker, that could result from crossing the British channel." 
 
 1 Chitty on Bills, ch. 9, p. 398 to 400 (8th edit. 1833) ; Ante, ^ 282. 
 
 2 Boot V. Franklin, 3 Johns. R. 208. See Mason v. Franklin, 3 Johns. 
 K. 302. 
 
 3 Ante, § 123, 124 ; Chitty on Bills, ch. 8, p. 378 (8th edit. 1833) j , 
 Id. p. 400 ; Bay ley on Bills, ch. 7, ^ 1, p. 400 (5lh edit.) 
 
CH. X.] PRESENTMENT FOR PAYMENT, 455 
 
 authorized any presentment upon him except at his 
 place of residence.^ 
 
 § 354. If a Bill be drawn payable at either of two 
 places, and accepted accordingly, as, for example, if 
 drawn, payable at Tunbridge, or at London, the Holder 
 has a right, at his election, to present it at either place 
 for payment ; and, if not duly paid at the place of pre- 
 sentment, he may protest it, and give notice to the 
 Drawer and Indorsers, and they will be bound thereby ; 
 although, if presented at the other place, it would have 
 been duly paid; for, in such a case, all the parties 
 undertake to pay the Bill upon due presentment at 
 either place.^ 
 
 § 355. If the Bill be made payable at a banker's, or 
 other particular place, and accepted accordingly, it 
 should be presented for payment at that place, at its 
 maturity, otherwise the Drawer and prior Indorsers 
 will be discharged.' But the Acceptor will not be dis- 
 charged, if the presentment is not made on that day, 
 at the banker's, or other designated place ; but he will 
 still^ according to the general law, remain liable to pay 
 the same, whenever, afterwards, payment shall be de- 
 manded there, at least, if he has not sustained any loss 
 or injury by the delay.'* In England, before the statute 
 
 1 Mitchell V. Baring, 10 Barn. & Cressw. 4, 9, 10. 
 
 2 Beeching v. Gower, 1 Holt, N. P. Rep. 313 ; Chitty on Bills, ch. 9, 
 p. 400 (8th edit. 1833.) 
 
 3 Ante, ^ 239, and note ; Chitty on Bills, ch. 5, p. 173, 173 (8th edit. 
 1833) ; Id. ch. 7, p. 321 to 323 ; Id. ch. 9, p. 391 to 393, 396 ; Bayley on 
 Bills, ch. 1, § 9, p. 29, 30 ; Id. ch. 6, § 1, p. 172 (5th edit. 1830) ; Id. 
 p. 199, 200 ; Id. ch. 7, § 1, p. 219 to 222; 1 Bell, Comtn. B. 3, ch. 2, 
 \ 4, p. 412, 413 {5th edit. 1830.) 
 
 * Ante, § 339, and note ; Rowe v. Young, 2 Brod. & Bingh. R. 165 ; 
 S. C. 3 Bligh, R. 391 ; Chitty on Bills, ch. 5, p. 172 to 174 (8th edit. 
 
456 BILLS OF EXCHANGE. [CH. X. 
 
 1 and 2 Geo. IV., ch. 78, a presentment and demand 
 of payment at such a place was a condition precedent 
 to the right of the Holder to maintain an action against 
 the Acceptor thereon. But that statute has entirely 
 changed the character of the responsibility of an Ac- 
 ceptor, by providing, that an acceptance, payable at a 
 banker's, or other place, (not saying, " and not other- 
 wise or elsewhere,") shall be deemed a general accept- 
 ance of the Bill to all intents and purposes ; so that no 
 presentment or demand of payment at the banker's, or 
 other place, is now necessary in ordej to charge the 
 Acceptor. Nay, he will still be liable on the Bill, 
 although the banker, at whose house it was payable, 
 had funds of the Acceptor's in his hands to pay, and 
 afterwards failed, so that the Acceptor lost his funds.' 
 
 1833) ; Id. ch. 7, p. 321 to 323 ; Id. ch. 9, p. 391 to 400, 424 ; Rhodes v. 
 Gent, 5 Barn. & Aid. 244. 
 
 1 Turner v. Hayden, 4 Birn. & Cressw. 1 ; Chitty on Bills, ch. 5, 
 p. 172, 173 (8th edit. 1833) ; Id. ch. 7, p. 321 to 323 ; Id. ch. 9, p. 391 to 
 400; 1 Bell, Comm. B. 3, ch. 2, §9, p. 412 (5th edit.); Halstead «. 
 Skelton, 5 Adolph. & Ell. New R. 86. Lord Chief Justice Tindal, in 
 delivering the opinion of the Court of Exchequer Chamber in this case, 
 said : " The statute enacts that, where a Bill is accepted payable at a 
 banker's, without further expression in the acceptance, such acceptance 
 shall be deemed and taken to be to all intents and purposes a general 
 acceptance of such Bill ; but the meaning of this enactment is, not that, 
 in such a case, presentment at the banker's shall be an invalid present- 
 ment, but that, in an action against the Acceptor, presentment to him shall 
 be good, and consequently that it shall be unnecessary to present or to 
 aver presentment at the banker's. A Bill of Exchange drawn generally 
 on a party may be accepted in three different forms ; either generally, or 
 payable at a particular banker's, or payable at a particular banker's and 
 not elsewhere. If the Drawee accepts generally, he undertakes to pay 
 the Bill at maturity when presented to him for payment. If he accepts 
 payable at a banker's, he undertakes (since the statute) to pay the Bill at 
 maturity when presented for payment either to himself or at the banker's. 
 If he accepts payable at a banker's and not elsewhere, he contracts to pay 
 the Bill at maturity provided it is presented at the banker's, bat not othei- 
 
CH. X.] PRESENTMENT FOR PAYMENT. 457 
 
 But that statute has not changed the antecedent law 
 in respect to the Drawer or Indorsers, who are not 
 bound unless a presentment has been made at the 
 designated place, on the very day of the maturity of 
 the Biiy and it does not apply at all to Promissory 
 Notes, payable at a particular place.^ 
 
 § 356. In America, a doctrine somewhat (as we 
 have seen) different prevails, if not universally, at least 
 very generally. The received doctrine, here, seems 
 to be (however difficult it is to maintain it upon prin- 
 ciple) ^ that, in respect to the Acceptor, no present- 
 ment or demand of payment of a Bill payable at a 
 banker's, or other particular place, need be made, at 
 
 wise. Here the Bill was accepted according to the second of these three 
 foims ; that is, payable at a banker's without any restrictive words ; so 
 that presentment at the banker's (though if made it would have been a 
 good presentment) was yet not, as against the Acceptor, necessary. Ac- 
 ceding, therefore, as we do, to the argument of the plaintiff in error, that 
 the Bill must be taken to have been pleaded according to its legal effect 
 we do not go along with him in the conclusion at which he arrives. For 
 the reasons which we have given, we do not think that, in this case, the 
 legal effect of the Bill, as pleaded, was to render necessary any present- 
 ment at the banker's ; and the judgment of the Court below will therefore 
 b9 affirmed." 
 
 1 Gibb V. Mather, 2 Cromp. & Jerv. 254 ; S. C. 8 Bing. R. 214 ; 
 Chitty on Bills, ch. 5, p. 172, 173 (Sth edit. 1833) ; Id. ch. 7, p. 321 to 
 323 ; Id. ch. 9, p. 391 to 400 ; Bayley on Bills, ch. 7, § 1, p. 222, 223 
 (Sth edit. 1830) ; Shaw v. Eeed, 12 Pick. R. 132. 
 
 2 Chitty on Bills, ch. 9, p. 397 (Sth edit.) ; Id. ch. 5, p. 174. 
 
 3 See 3 Kent, Comm. Lect. 44, p. 97 to 99, and note (4th edit.) Mr. 
 Chancellor Kent (p. 99) says; "If a Bill of Exchange, though drawn 
 generally, be accepted, payable at a particular place, it is a special, or 
 qualified acceptance, which the Holder is not bound to take; but, if he 
 does take it, the demand must be made at the place appointed, and not 
 elsewhere. This is the plain sense of the contract, and the words, ' ac- 
 cepted, payable at a given place,' are equivalent to an exclusion of a de- 
 mand elsewhere." The same doctrine is held in Louisiana. Mullen v. 
 Croghan, 15 Martin, R. 424; Gale v. Kemper's Heirs, 10 Louis. R. 208-; 
 Warren v. Alnutt, 12 Louis. R. 454. 
 
 B. OF EX. 39 
 
458 BILLS OF EXCHANGE. [CH. X. 
 
 that place oa the day, when the Bill becomes due, or 
 afterwards, ia order to maintain an action against him ; 
 but that it is matter of defence on the part of the Ac- 
 ceptor, that he had funds at that place to pay the Bill, 
 which, if true, will exonerate him from the payment 
 of all damages and interest; and if he has been in- 
 jured, or has sustained any loss, by the neglect of the 
 Holder to demand payment at that place, (as, if the 
 Bill: be payable at a bank, and the Acceptor had funds 
 there, and the Bank has since failed,) then the Ac- 
 ceptor will be discharged from a liability on the Bill 
 to that extent.* 
 
 1 Ante, ^ 239, and note ; McKeil v. Real Estate Bank, 4 Pike, R. 
 592; Wallace v. McConnell, 13 Peters, R. 136. — In the opinion of the 
 Court, delivered by Mr. Justice Thompson, the principal English and 
 American authorities are reviewed. In the course of the review, the 
 learned Judge said ; " Thus we see, that, until the late decision in the 
 House of Lords, in the case of Rowe v. Young, and the act of Parlia- 
 ment passed soon thereafter, this question was in a very unsettled state 
 in the English courts ; and, without undertaking to decide between those 
 conflicting opinions, it may be well to look at the light, in which this 
 question has been viewed in the courts in this country. This question 
 came before the Supreme Court of the State of New York, in the year 
 1809, in the case of Foden and Slater v. Sharp (4 Johns. R. 183) ; and 
 the Court said, the Holder of a Bill of Exchange need not show a de- 
 mand of payment of the Acceptor, any more than of the Maker of a 
 note. It is the business of the Acceptor to show that he was ready at 
 the day and place appointed, but that no one came to receive the money ; 
 and, that he was always ready afterwards to pay. This ease shows, 
 that the Acceptor of a Bill, and the Maker of a Note, were considered 
 as standing on the same footing, with respect to a demand of payment 
 at the place designated. And in the case of Walcott v. Van Santvoord, 
 (17 Johns, R. 248), which came before the same court in the year 1819, 
 the same question arose. The action was against the Acceptor of a Bill, 
 payable five months after date at the Bank of Utica, and the declaration 
 contained no averment of a demand at the Bank of Utica; and, upon a 
 demurrer to the declaration, the Court gave judgment for the plaintiff. 
 Chief Justice Spencer, in delivering the opinion of the Court, observed, 
 that the question had been already decided, in the case of Foden v. 
 
CH. X.] PRESENTMENT FOR PAYMENT. 459 
 
 § 357. However, be the rule according to the doc- 
 trine held in England or in America, it seems clear, 
 
 Sharp ; but, considering the great diversity of opinion among the judges 
 in the English courts, on the question, he took occasion critically to 
 review the cases, which had come before those courts, and shows, very 
 satisfactorily, that the weight of authority is in conformity to that deci- 
 sion, and the demurrer was accordingly overruled ; and the law in that 
 State, for the last thirty years, has been considered as settled upon this 
 point. And, although the ac ion was against the Acceptor of a Bill of 
 Exchange, it is very evident, that this circumstance had no influence 
 upon the decision ; for the Court say, that, in this respect, the Acceptor 
 stands in the same relation to the Payee, as the Maker of a Note does to 
 the Indorsee. He is the principal, and not a collateral debtor. And in 
 the case of Caldwell u. Cassady (8 Cowen, 271), decided in the same 
 Court, in the year 182S, the suit was upon a Promissory Note, payable, 
 sixty days after date, at the Franklin Bank in New York ; and the Note 
 had not been presented, or payment demanded, at the Bank ; the Court 
 said, this case has been already decided by this Court in the case of 
 Wolcott 17. Van Santvoord. And after noticing some of the cases in 
 the English courts, and alludipg to the confusion, that seemed to exist 
 there upon the question, they add ; that, whatever be the rule in other 
 courts, the rule in this Court must be considered settled, that, where a 
 Promissory Note is made payable at a particular place on a day certain, 
 the Holder of the Note is not bound to make a demand at the time and 
 place, by way of a condition precedent to the bringing an action against 
 the Blaker. But, if the Maker was ready to pay at the time and place, 
 he may plead it, as he would plead a tender in bar of damages and costs, 
 by bringing the money into court. It is not deemed necessary to notice 
 very much at length the various cases, that have arisen in the American 
 courts upon this question, but barely to refer to such as have fallen under 
 the observation of the Court ; and we briefly state the point and decision 
 thereupon, and the result will show a uniform course of adjudication, 
 that, in actions on Promissory Notes against the Maker, oi on Bills of 
 Exchange, where the suit is against the Maker in the one case, and Ac- 
 ceptor in the other, and the Note or Bill made payable at a specified time 
 and place, it is not necessary to aver in the declaration, or prove on the 
 trial, that a demand of payment was made, in order to maintain the 
 action. But, that, if the Maker or Acceptor was at the place at the time 
 designated, and was ready, and offered to pay the money, it was matter 
 of defence to be pleaded and proved on his part. The case of Watkins ii. 
 Crouch & Co., in the Court of Appeals of Virginia (5 Leigh, 523,) was a 
 suit against the Maker and Indorser, jointly, as ia the course in that Slate, 
 
460 BILLS OF EXCHANGE. [CH. X. 
 
 that, if the Holder has made a demand at the banker's, 
 or other particular place, designated for payment in the 
 
 upon a Promissory Note like the one in suit. The Note was made pay- 
 able, at a specified time, at the Farmers' Bank at Richmond, and the 
 Court of Appeals, in the year 1834, decided that it was not necessary to 
 aver and prove a presentation at the bank, and demand of payment, in 
 order to entitle the plaintiff to recover against the Maker ; but, that it was 
 necessary, in order to entitle him to recover against the Indorser ; and the 
 President of the Court went into a very elaborate consideration of the 
 decisions of the English courts upon the question ; and to show, that, upon 
 Common-Law principles, applicable to bonds, notes, and other contracts 
 for the payment of money, no previous demand was necessary, ii\ order to 
 sustain the action, but that a tender and readiness to pay must come, by 
 way of defence, from the defendant ; and, that, looking upon the note as 
 commercial paper, the principles of the Common Law were clearly against 
 the necessity of such demand and proof, where the time and place were 
 specified, though it would be otherwise, where the place, but not the time 
 was specified ; a demand, in such case, ought to be made ; and he ex- 
 amined the case of Sanderson i». Bowes, to show, that it turned upon 
 that distinction, the note being payable on demand at a specified place. 
 The same doctrine was held by the Court of Appeals of Maryland, in the 
 case of Bowie u. i)u vail (1 Gill & Johnson, 175) ; and the New York 
 cases, as well as that of the Bank of the United States v. Smith (11 
 Wheat. 171,) are cited with approbation, and fully adopted; and the 
 Court put the case upon the broad ground, that, when the suit is against 
 the Maker of a Promissory Note, payable at a specified time and place, no 
 demand is necessary tb be averred ; upon the principle, thit the money to 
 be paid is a debt from the defendant, that it is due generally and universally, 
 and will continue due, though there be a neglect on the part of the cre- 
 ditor to attend at the time and place to receive or demand it. That it is 
 matter of defence, on the part of the defendant to show, that he was in 
 attendance to pay, but that the plaintiff was not there to receive it ; which 
 defence generally will be in bar of damages only, and not in bar of the 
 debt. The case of RugglesV. Patten (8 Mass. Hep. 480) sanctions the same 
 rule of construction. The action was on a Promissory Note, for the 
 payment of money, at a day and place specified ; and the defendant pleaded 
 that he was present at the time and place, and ready and willing to pay 
 according to the tenor of his promises, in the second count of the declara- 
 tion mentioned, and avers, that the plaintiff was not then ready or present 
 at the bank to receive payment, and did not demand the same of the de- 
 fendant, as the plaintiff, in his declaration, had alleged ; the Court said, 
 this was an immaterial issue, and no bar to an action or promise to pay 
 
CH. X.] PRESENTMENT FOR PAYMENT. • 461 
 
 acceptance, and payment is refused, he is not bound to 
 make any personal or other demand upon the Acceptor 
 
 money. So, also, in the State of New Jersey, the same rule is adopted. 
 In the case of Weed v. Houten (4 Halst. N. J. Rep. 189,) the Chief Jus- 
 tice says : ' The question is, Whether, in an action by the Payee of a 
 Promissory Note payable at a particular place, and not on demand, but at 
 time, it is necessary to aver a presentment of the note and demand of pay- 
 ment by the Holder, at that place, at the maturity of the note.' And, 
 upon this question he says : ' I have no hesitation in expressing my entire 
 concurrence in the American decisions, so far as is necessary for the pre- 
 sent occasion ; that a special averment of presentment at the place is not 
 necessary to the validity of the declaration, nor is proof of it necessary 
 upon the trial. This rule, I am satisfied, is most conformable to sound 
 reason, most conducive to public convenience, best supported by the gene- 
 ral principles and doctrines of the law, and most assimilated to the deci- 
 sions, which bear analogy more or less directly, to the subject.' The 
 same rule has been fully established by the Supreme Court of Tennessee, in 
 the cases of M'Nairy ». Bell, and Mulhovin v. Hannum (1 Yerger Rep, 
 502, and 3 Yerger, Rep. 81,) and the rule sustained and enforced, upon 
 the same principles and course of reasoning, upon which the other cases 
 referred to have been placed. And no case, in an American court, has 
 fallen under our notice, where a contrary doctrine has been asserted and 
 maintained. And it is to be observed, that most of the cases which have 
 arisen in this country, where this question has been drawn into discus- 
 sion, were upon Promissory Notes, where the place of payment was, of 
 course, in the body of the note. After such a uniform course of decisions, 
 for at least thirty years, it would be inexpedient to change the rule, even 
 if the grounds upon which it was originally established, might be ques- 
 tionable ; which, however, we do not mean to intimate. It is of the 
 utmost importance, that all rules relating to commercial law should be 
 stable and uniform. They are adopted for practical purposes, to regulate 
 the course of business in commercial transactions ; and the rule here 
 established is well calculated for the convenience and safety of all parties. 
 The place of payment in a Promissory Note, or in an acceptance of a Bill 
 of Exchange, is always matter of arrangement between the parties for 
 their mutual accommodation, and may be stipulated in any manner that 
 may best suit their convenience. And when a note or Bill is made pay- 
 able at a bank, as is generally the case, it is well known, that, according 
 to the usual course of business, the Note or Bill is lodged at the bank 
 for collection ; and if the Maker or Acceptor calls to take it up, when 
 it falls due, it will be delivered to him, and the business is closed. 
 But, should he not find hia Note or Bill at the bank, he can deposit 
 39* 
 
462 
 
 BILLS OF EXCHANGE. [CH. X. 
 
 at his dwelling-house, or at his place of business, even 
 if he resides in the same town or city ; for due de- 
 mand at the proper place will be sufficient.^ And the 
 same doctrine will apply to the Drawer and Indorsers 
 of the Bill, if, upon the face of the Bill, it is originally 
 made payable at a banker's, or other particular place 
 designated ; for, under such circumstances, a present- 
 ment and demand of payment at that place is all that 
 is required by the Bill.^ But, if the Bill be not so 
 originally made payable" at a particular place, then (as 
 we have seen) it will be deenied a qualified acceptance, 
 and the Drawer and Indorsers may or will, according to 
 the general law, be discharged from all liability ;' al- 
 though the Acceptor will be bound thereby.* 
 
 his money to meet the note, when presented ; and should he be afterwards 
 piosecuted, he would be exonerated from all costs and damages, upon 
 proving such tender and deposit. Or, should the Note or Bill be made 
 payable at some place other than a bank, and no deposit could be made, 
 or he should choose to retain his money in his own possession, an offer 
 to pay at the time and place would protect him against interest and costs, 
 on bringing the money into court ; so, that no practical inconvenience or 
 hazard can result from the establishment of this rule, to the Maker or Ac- 
 ceptor. But, on the other hand, if a presentment of the note and demand 
 of payment, at the time and place, are indispensable to the right of action, 
 the Holder might hazard the entire loss of his whole debt." 13 Peters, 
 R. 147 to 151. See also Bhodes i>. Gent, 5 Barn. & Aid. 244 ; 3 Kent, 
 Comm. Lect. 44, p. 97 to 99 (4th edit.) [See also Story on Promissory 
 Notes, ^ 229 note, where will be found additional authorities, and a state- 
 ment by the author of his dissent from the opinion of the Court in Wallace 
 V. McConnell.] 
 
 1 Chitty on Bills, ch. 6, p. 172, 173 (8th edit. 1833) ; Id. ch. 7, p. 322, 
 323 ; Id. ch. 9, p. 396, 397, 400 ; Bayley on Bills, ch. 9, p. 399, 400 (5th 
 «dit. 1830) ; De Bergareche v. Pillin , 3 Bing. R. 476 ; Hawkey v. Berwick, 
 i Yonnge & Jerv. 376 ; S. C. 4 Bing. R. 135; Gillett v. Averill, 5 Denio, 
 E. 85 ; Story on Promissory Notes, § 234. 
 
 2 Ibid. 
 
 3 Ante, § 239, and note, 240 ; Rowec. Young, 2 Brod. & Bing. R. 165 ; 
 ,-S. C. 2 Bligh, R. 391 ; Chitty on Bills, ch. 7, p. 322, 323 (8th edit. 1833) ; 
 Id. ch. 8, p. 315, 316 ; Bayley on Bills, ch. 6, § I, p. 196 (5th edit, 1830) ; 
 Id. ch. 7, § 2, p. 253, 254. * Ante, § 240. 
 
CH. X.] PRESENTMENT FOR PAYMENT. • 463 
 
 § 358. Heineccius has stated a very curious rule, as 
 existing in some, if not in all, parts of Germany. It 
 is, that, if a Bill of Exchange be payable by a Christ- 
 ian to a Jew, the presentment should be made, and 
 payment should be demanded at his (the Christian's) 
 house ; but, that, if a Jew is to pay a Christian, then 
 the Jew is to pay at the dwelling-house or the lodgings 
 of the Christian, presenting the same. Indeed, if the 
 Jew does not, of his own accord, pay there, a protest 
 may be made for the dishonor. " Illiid quoque notatu 
 cHgnissimum est, quod, qiiwm Christiani non, nisi domi sicce, 
 solvere teneantur, Judcd solutionem in prcesentatis cedibus, 
 vel ejus hospUio, prastare deheant, modo prcesentans d ipse 
 Christiance religioni addictus sit. Si id Judceus non facit 
 ultro, Christianus protestationem interponere potest, si vel 
 maxime nulla prcecesserit interpellatio" ' And, if the Ac- 
 ceptor be a Christian, and payment has not been de- 
 manded of him at the maturity of the Bill, he may, 
 although there has been no previous citation or protest 
 by the Holder, pay the money into Court. " Si aecep- 
 tans est Christianus, pecuniam justo tempore a se no exac- 
 tam, nulla licet prcevia prcssentardis dtatione vel protesta- 
 tione, injudido deponere potest. Quin Zdpsice sufficit, si il- 
 lam a judice ohsignari petal, quamvis earn non deponat, sed 
 olsignatam domum secum reportet." ^ 
 
 § 359. In France it is required by the Code of Com- 
 merce, that the acceptance of a Bill of Exchange, pay- 
 able at another place than that where the Acceptor 
 resides, should point out the domicil at which it is to 
 be paid, and where the protest must be made in case of 
 
 ^ Heinecc. de Camb. cap. 4, ^ 4S. 
 2 Id. § 43. 
 
464 BILLS OF EXCHANGE. [CH. X- 
 
 non-payment' But, unless the Bill be originally made 
 payable at that place, the Drawer will not be affected 
 by his want of funds at that place ; but will simply be 
 required to show that he had funds in the hands of the 
 Acceptor.^ 
 
 § 360. In the next place, as to the person by whom 
 the presentment for payment is to be made. And here 
 the same general doctrine applies as in cases of present- 
 ment for acceptance.* The Holder himself, or his 
 authorized agent, is the proper person to make the 
 presentment for payment ; and any person who is in 
 possession of the Bill, under a blank indorsement, or 
 with an indorsement to himself, will be deemed a 
 Holder for this purpose, although he may in fact be 
 only the agent of the real owner.* For the agent, 
 under such circumstances, is, as between himself and 
 the Acceptor, at liberty to treat the possession of the 
 Bill as being in him under a legal title, as trustee of 
 the owner; and, therefore, he is entitled to receive 
 payment.^ If the Holder is dead at the maturity of 
 the Bill, the presentment should be made by his execu- 
 tor or administrator, if any has been appointed.^ If the 
 Holder has become bankrupt, and assignees have been 
 appointed, . the presentment should be made by the 
 
 1 Code de Comm. ait. 133 ; Pardessus, Droit Comm. Tom. I, ait. 369. 
 S Paidessus, Droit Comm. Tom. 2, art. 393. 
 S Ante, § 229, 303 to 305. 
 
 * Chitty on Bills, oh. 9, p. 398, 428 to 430 (8th edit. 1833) ; Pothier de 
 Change, n. 168, 169. 
 
 5 Little V. O'Brien, 9 Mass. R. 423 '; Stirling v. Marietta and Susqueh. 
 Trad. Co. 10 Serg. & Rawle, 179 ; Mauran v. Lamb, 7 Cowen, R. 174 ; 
 Banks v. Eastin, 15 Martin, R. 291 ; Adams v. Oakes, 6 Carr. & Payne, 
 70 ; Sherwood v. Roys, 14 Pick. R. 172. 
 
 6 Chitty on Bills, oh, 9, p. 389, 428, 429 (8th edit. 1833) ; Pothier de 
 Change, n. 166. 
 
CH. X.] PRESENTMENT FOR PAYMENT. 465 
 
 assignees.' If the Holder is a woman, and she marries 
 before the Bill arrives at maturity, the presentment 
 should be made by her husband, or, at least, if made 
 by her, she should be authorized to act as his agent ; 
 and payment otherwise would not discharge the Ac- 
 ceptor.** Notice, however, as has been already stated, 
 is not indispensable to be given by the Holder, or by 
 an Indorser, entitled to reimbursement ; for it will be 
 sufficient, if it is given by any other party on the Bill j 
 and it will then generally enure to the benefit of every 
 one of the other parties, whether he be the Holder, or 
 the Drawer, or an Indorser of the Bill.' 
 
 § 361. Pothier lays it down, as the clear result of 
 the French Law, that payment of the Bill, at its matu- 
 rity, should be made to the true proprietor thereof 9,t 
 that time, or to some person authorized to receive it 
 for him ; * and, of course, the presentment is governed 
 by the same rule. Hence, if the Bill has passed by 
 indorsement to a third person, he is the true proprietor, 
 and the Payee has no longer any right to receive pay- 
 ment.^ And, if the Payee has assigned a Bill not 
 negotiable by a separate paper, the assignee, upon 
 notice thereof to the Acceptor, is entitled to demand 
 payment thereof; but he has not, as an Indorser has, 
 the full right of propriety on the Bill, and therefore, if 
 the Bill itself be paid to the Payee, or be indorsed and 
 paid to another Indorsee of the Payee, before such 
 
 1 Chitty on Bills, ch. 9, p. 398 (8th edit. 1833) ; Jones v. Fott, 9 Bain. 
 & Cressw. 764 ; Ante, § 305. 
 
 2 Ante, § 90 to 93. 
 
 3 Ante, i 304. 
 
 4 Pothier de Change, n. 164, 168, 169. 
 
 5 Ibid. 
 
466 BILLS OP EXCHANGE, [CH. X. 
 
 notice, the payment is good.* In no case, however, is 
 a presentment or payment good, except to some per- 
 son who has a competent capacity to receive it, and 
 to administer the property. If, therefore, the Holder 
 should die before the maturity of the Bill, leaving 
 minor children, they are not entitled to payment, but 
 their tutor only. But, if a Bill be made payable by 
 the Drawer, or by an Indorser, to a minor, the pay- 
 ment thereof to him will be good against them, upon 
 the known maxim of law : Qwd Jussu aUerius solvitur, 
 pro eo est, qua si ipsi solutum esset? In case of a Bill 
 payable to an unmarried woman, who marries before 
 its maturity, and has thus passed under the marital 
 authority of her husband, payment can only be made 
 to him if her marriage be known ; but, if unknown, 
 then payment to her by the Acceptor, hond fide, will 
 discharge him.' 
 
 § 362. lu the next place, as to the person to whom 
 presentment of the Bill for payment is to be made. 
 And here the same general rules apply, as in cases of 
 presentment for acceptance.* It should be presented 
 to the Acceptor ; or, if he be abroad, then at his dwell- 
 ing-house, or last place of domicil ; or, if he has a 
 known general agent at home, it should be presented 
 to such agent.^ If, at the time of presentment, the 
 Acceptor be dead, it should be made to his executor or 
 
 1 Pothier de Change, n. 165. 
 
 2 Pothier de Change, n. 166 ; Dig. Lib. 50, tit. 17, 1. 180 ; Ante, § 84 
 to 86. 
 
 3 Pothier de Change, n. 167.; Ante, § 94 to 97. 
 * Ante, ^ 229, 305. 
 
 5 Chitty on Bills, ch. 7, p. 301 {8th edit. 1833) ; Id. ch. 9, p. 398 to 
 401 ; id. ch. 10, p. 528, 529 ; Cromwell v. Hynson, 2 Esp. R. 511 ; Phil- 
 lips V. Astling, 2 Taunt. B. 206 ; Ante, ^ 305. 
 
V 
 
 CH. X.) PRESENTMENT FOR PAYMENT. 467 
 
 administrator, if any is appointed, and his place of 
 residence is known, or can upon reasonable inquiries, 
 be ascertained.* If there is no executor or adminis- 
 trator, it should be made, and payment demanded, at 
 the domicil of the deceased ; unless, indeed, the Bill 
 was originally made payable at a particular place ; for 
 then it will be sufficient, that there is a presentment 
 at that place.^ If the Acceptor has become bankrupt, 
 a presentment should still be made to him for payment, 
 in order to charge the Indorsers and Drawer. But so 
 far as respects his own liability, it is not changed by 
 the omission to make a presentment.^ If the accept- 
 ance be by partners, then the presentment should be at 
 their place of business, or at the dwelling-house of 
 either of them.* If by persons not partners, then the 
 presentment should be made at the respective dwelling- 
 houses, or places of business, of each Acceptor.^ If 
 one of the partners, who accepts the Bill, is dead, pre- 
 sentment should be made to the survivors.* 
 
 § 363. If there has been an acceptance supra proted, 
 then (as we have seen ") the presentment for payment 
 
 ' Ante, § 305 ; Chitty on Bills, ch. 7, p. 307 (8th edit. 1833) ; Id. ch. 
 9, p. 389, 401 ; Pothier de Change, n. 146. 
 
 2 Ibid. ; Philpot v. Bryant, 3 Carr. & Payne, 244. 
 
 3 Ante, ^ 326. 
 
 4 See Bayley on Bills, ch. 7, § 2, p. 285, 286 (5th edit. 1830) ; Ante, 
 ij 305. — Many of the cases cited in this section, are decisions upon ques- 
 tions, as to whom, and by whom, notice is to be given of the dishonor of 
 Bills ; but the same doctrines seem generally applicable to the case of pre- 
 sentment of Bills. 
 
 5 Ante, § 299, and note ; 3 Kent, Comm. Lect. 44, p. 105, note (i) 
 (5th edit.) 
 
 6 Cayuga County Bank ti. Hunt, 2 Hill, N. Y. Rep. 635. 
 
 "> Ante, ^ 125, 126 ; Id. (j 255 to 261 ; Chitty on Bills, eh. 8, p. 378 
 (8th edit. 1833) ; Hoare v. Cazenove, 16 East, R. 391 ; Mitchell v. Baring, 
 10 Barn. & Cressw. 4. 
 
468 BILLS OF EXCHANGE. [CH. X. 
 
 must first be made to the original Acceptor ; and, if he 
 refuses payment, then the Bill is to be protested, and 
 notice given to the Acceptor, supra protest, who wW, 
 thereupon, be liable to pay the Bill ; and a presentment 
 for payment may be made to him accordingly at his 
 place of business, or at his dwelling-house, and so in 
 other cases, exactly in the same mode, and under the 
 same qualifications, as if he were the original Acceptor." 
 Upon his refusal to pay the Bill, the same proceedings 
 as to protest and notice, are to be had, in order to bind 
 the Drawer and Indorsers, as if he were the original 
 Acceptor. The like rule governs in the French Law.^ 
 
 § 364. In the next place, as to the mode of present- 
 ment and the demand of payment. If it be personal, 
 or verbal, it should be absolute, and for present actual 
 payment, and not with any offer or agreement for any 
 farther credit.^ If it be in writing, as may in some 
 cases be proper, where a personal or verbal notice is 
 impracticable, or, under the circumstances, not indis- 
 pensable; the writing should be expressly, or by impli- 
 cation, equally absolute and direct. Nor should any 
 payment be accepted, which is not an immediate pay- 
 ment in money ; and payment by a check or other draft 
 upon a bank or on bankers should be declined.* 
 
 1 Chitty on Bills, ch. 8, ^ 3, p. 374,'375 (8th edit. 1833.) 
 
 2 Ibid. ; Ante, § 261 ; Pothiet de Change, n. 137, 170. 
 
 3 Chitty on Bills, ch. 9, p. 401, 402 (8th edit. 1833) ; Bayley on Bills, 
 ch. 9, p. 337, 338 (5th edit. 1830); Gillard v. Wise, 5 Barn. & Cressw. 
 134; Lockwood v. Crawford, 18 Conn. R. 341. 
 
 4 Chitty on Bills, ch. 9, p. 401, 402 (8th edit. 1833.) Mr. Chitty says : 
 " The Bill or Note should not be left in the hands of the Drawee or Maker, 
 -without immediate actual payment in money ; at least, if it be, the pre- 
 sentment is not considered as made, until the money is called for ; and, 
 although it has been decided, that neither a Holder, nor a banker, acting 
 as agent, is guilty of neglect, by giving up a Bill to the Acceptor, npon 
 
CH. X.] PRESEMMENt FOR PAYMENT. 469 
 
 § 365. There are certain circumsta&ceM, however, 
 which will equally excuse a non-presentment for pay- 
 i^ent, either at all, or in due time, aS a non-presentment 
 for acceptance. Many cases of this sort have already 
 been stated, in considering what will excuse the want 
 of a due presentment of Bills for acceptance.-^ But, as 
 the principles are not exactly (Joincident throughout, 
 and the illustrations are highly importalnt to he consi- 
 dered in cases of non-presentment for payment, they 
 are here inserted at the hazard of some repetition. 
 In the first place, then, if a due presentment for pay- 
 ment be prevented by inevitable accident, or casualty, 
 or by the general prevalence of a malignant disease, or 
 by superior force, or by war breaking out between the 
 country of the Holder and that of the Acceptor, or by 
 an occupation of the country by an enemy, or by poli- 
 tical events, which obstruct or prohibit the presentment ; 
 in all these, and the like cases, the want of such pre- 
 sentment will be excused ; and it will be sufficient, if 
 the presentment is made as soon as it can reasonably 
 be made afterwards.^ The same rule of enlightened 
 
 his delivering to them his check on another banker, that doctrine may 
 now be questionable ; and most of the London bankers, on presenting a 
 Bill for payment in the morning, leave a ticket, vphere it lies due, and 
 declaring that, 'in consequence of great injury having arisen from the non- 
 payment of drafts taken for Bills, no drafts can, in future, be received for 
 Bills, but that the parties may address them for payment to their bankers, 
 or attach a draft to the Bill when presented.' " 
 
 1 Ante, § 307 to 318. 
 
 ' Ante, i 234, 280, 308, 309, 327; Chitty on Bills, ch. 9, p. 389, 422, 
 423 (8lh edit. 1833) ; Id. ch, 10, p. 485 to 488, 522 ; Barker v. Parker, 6 
 Pick. R. 80 ; Patience v. Townley, 2 Smith, R. 223, 224 ; Scofield v. 
 Bayard, 3 Wend. R. 488 ; Pardessus, Droit Comm. Tom. 2, art. 426, 434. 
 Mr. Chitty (p. 422) says : "Provided the party, entitled to a Bill or Note, ' 
 produce it as soon as the impediment has been removed, and, in the mean 
 time, take every step in his power to obtain payment at the appointed 
 B. OF EX. 40 , 
 
470 BILLS OF EXCHANGE. [CH. X. 
 
 justice prevails in France, and is asserted by Pothier 
 and Pardessus in unequivocal language.^ So, if the 
 Acceptor has absconded, or he cannot be found, or Hb 
 has no present, known, and fixed domicil, the want of 
 due presentment will be excused.^ 
 
 § 366. In the next place (as has been already seen ') 
 if the Bill be protested for non-acceptance, no present- 
 ment or demand for payment is necessary ; * in which 
 respect it differs from the law of France.^ And it be- 
 comes necessary again to bring under review the ques- 
 tion already adverted to in another place,^ Whether the 
 
 time, a delay in presenting the instrument itself at maturity may be ex- 
 cused, on account of any accidenk, or circumstance, not attributable to the 
 party's own fault. Thus, it has been considered, that the detetition of the 
 Bill by contrary winds, or the Holder's having been robbed of the Bill, or 
 the like, would afford an adequate excuse, provided he present it as soon 
 afterwards as he is able. So, the occupation of the country by an enemy 
 will constitute an adequate excuse for delay. But a notice of ihe reason, 
 why the Bill itself cannot be produced, should be given ; and a demand of 
 payment should, if possible, be made on the very day the instrument falls 
 due ; and, if it be a foreign Bill, it should be duly protested, in case the 
 Drawee should refuse payment. And it would be advisable also to tender 
 an adequate indemnity to the Acceptor or Maker of a Note, and to request 
 him to pay without his insisting on production of the instrument ; after 
 which he should keep the money ready to pay, when the Bill is produced, 
 and this at his own risk, in case his agent, holding the money, should 
 fail." 
 
 1 Ante, § 234, 280, 308, 309 ; Pothier de Change, n. 144 ; Pardessus, 
 Droit Comm. Tom. 2, art. 422. 
 
 2 Ante, ^ 308, and note, § 309, 327; Chitty on Bills, ch. 10, p. 486 to 
 488 (8th edit. 1833.) 
 
 3 Ante, § 321, 322. 
 
 * Chitty on Bills, ch. 9, p. 390, 391 (8th edit. 1833) ; Id.ch. 10, p. 467 ; 
 Evans ii. Gee, 11 Peters, R. 80 ; U. States v. Barker's Administrator, 4 
 Wash. Cir. R. 464 ; Whitehead v. Walker, 9 Mees. & Welsh. 506 ; 
 Ante, § 321, 322. But see 1 Bell, Comm. B. 3, ch. 2, § 4, p. 409, 410 
 (5th edit.) 
 
 B Ante, ^321,322. 
 
 6 Ante, ^ 176, 177, and note. 
 
OH. X.] ' PRESENTMENT FOE PAYMENT. 471 
 
 same rule applies in cases, where the Bill is drawn in 
 one country, and is payable in another country, where 
 the law on this point is essentially different ? Thus, 
 for example, if a Bill is drawn in London, payable in 
 Paris, in France, and it is indorsed in London, whether 
 there must be a presentment of the Bill for payment at 
 its maturity in Paris, although it has been already pre- 
 sented for acceptance, and protested for non-acceptance, 
 as is required by the law of France ; or, whether such a 
 presentment is dispensed with, as to the English 
 Drawer and Indorsers, as is certainly the law of Eng- 
 land, applied to ordinary cases of Bills. Upon this 
 point there has been some diversity of judicial opinion. 
 The doctrine seems to have been recently maintained in 
 England (at least in respect to notice,) that, in such a 
 case, the law of France is to govern.-' On the other 
 hand, it has been held in America, that the law of the 
 place where the Bill is drawn, and where it is indorsed, 
 is to govern exclusively, as to the liabilities and duties 
 of the Drawer and Indorsers respectively. Thus, where 
 a Bill was drawn in a French West India island, pay- 
 able in France, to the Payee, or order, and it was after- 
 wards indorsed in New York, and, upon presentment to 
 the Drawees in France, acceptance was refused, and no 
 presentment was afterwards made to the Drawees, for 
 payment, at the maturity of the Bill ; it was held, that, 
 in respect to the Indorser, in New York, no such pre- 
 sentment for payment was necessary to fix his liability 
 en the. Bill; but it was necessary to fix the liability of 
 
 1 Rothschild v. Carrie, 1 Adolph. & Ellis, New R. 43 ; Ante, § 176, 
 177, and note. 
 
472 BILLS OF EXCHANGE. [CH. X. 
 
 the Drawer in the Treuch West Indies.' Pardessus 
 entirely concurs in opinion with this last decision in 
 New Tork.^ 
 
 1 Aymar v. Sheldon, 12 Wend. R. 439. Mr. Chief Justice Nelson, in 
 delivering the opinion of the Court upon this occasion, said : " The only 
 material question, arising in this case, is. Whether the steps, necessary on 
 the part of the Holders of the Bill of Exchange in question, to subject the 
 Indorsers, upon default of the Drawees to accept, must be determined by 
 the French Law, or the law of this Slate ? If by our law, the plaintiffs 
 below are entitled to retain the judgment ; if by the law of France, as set 
 out and admitted in the pleadings, the judgment must be reversed. We 
 have not been referred to any case, nor have any been found in our re- 
 searches, in which the point now presented, has been examined or adjudged. 
 But there ate some familiar principles, belonging to the Law Merchant, or 
 applicable to Bills of Exchange and Promissory Notes, which we think 
 are decisive of it. The persons, in whose favor the Bill was drawn, were 
 bound to present it for acceptance and for payment, according to the law of 
 France, as it was drawn and payable in French territories ; and, if the 
 rules of law, governing them, were applicable to the Indorsers and Indor- 
 sees in this case, the recovery below could not be sustained, because pre- 
 sentment for payment would have been essential, even after protest for 
 non-acceptance. No principle, however, seems more fully settled, or 
 better understood, in commercial law, than that the contract of the Indorser 
 is a new and independent contract, and ths^t the extent of his obligations is 
 determined by it. The transfer by indorsement is equivalent in effect to 
 the drawing of a Bill, the Indorser being, in almost every respect, con 
 sidered as a new Drawer. (Chitty on Bills, 142 ; 3 East, R. 482 ; 2 Burr. 
 R. 674, 675 ; 1 Str. R. 441 ; Selw. N. P. 356.) On this ground, the rate 
 of damages, in an action against the Indorser, is governed by the law of 
 the place where the indorsement is made, being regulated by the lex loci 
 contraclus. (6 Cranch, R. 21 ; 2 Kent, Comm. 460 ; 4 Johns. R. 119.) 
 That the nature and extent of the liabilities of the Drawer and Indorser 
 are to be determined according to the law of the place where the Bill is 
 drawn, or indorsement made, has been adjudged both here and in Eng- 
 land. In Hix V. Brown, 12 Johns. R. 142, the Bill was drawn by the 
 defendant, at New Orleans, in favor of the plaintiff, upon a house in Phila- 
 delphia ; it was protested for non-acceptance, and due notice given ; the 
 defendant obtained a discharge under the insolvent laws of New Orleans 
 after such notice, by which he was exonerated from all debts previously 
 contracted, and, in that State, of course from the Bill in question. He 
 
 2 Pardessus, Droit Comm. Tom. 5, art. 1488, 1497 to 1499. 
 
CH, X.J PRESENTMENT FOE PAYMENT. 473 
 
 § 367. But a much more extensive class of cases, 
 where the Holder is excused, notwithstanding his 
 
 pleaded his discharge here, and the Court say : ' It seems to be well 
 settled, both in our own, and in the English courts, that the discharge is 
 to operate according to the tex loci, upon the contract, where it was made, 
 or to be executed. The contract in this case originated in New Orleans, 
 and had it not been for the circumstance of the Bill being drawn upon a 
 person in another State, there could be no doubt but the discharge would 
 reach this contract ; and this circumstance can make no difference, as the 
 demand is against the defendant as Drawer of the Bill, in consequence of 
 the non-acceptance. The whole contract, or responsibility of the Drawer 
 was entered into, and incurred, in New Orleans.' The case of Peters v. 
 Brown, 5 East, K. 124, contains a similar principle. (See also 4 Mass. 
 R. 81 ; Van Raugh v. Van Arsdaln, 3 Gaines, R. 154 ; 1 Cowen, R. 107 ; 
 6 Cranch, R. 221 ; 4 Cowen, R. 512, note.) The contract of indorse- 
 ment was made in this case, and the execution of it contemplated by the 
 parties, in this State ; and it is, therefore, to be construed according to the 
 laws of New York. The defendants below, by it, here engage, that the 
 Drawees will accept and pay the Bill on due presentment, or in case of 
 their default, and notice, that they will pay it. All the cases, which de- 
 termine, that the nature and extent of the obligation of the Drawer are to 
 be ascertained and settled according to the law of the place, where the 
 Bill is drawn, are equally applicable to the Indorser ; for, in respect to 
 the Holder, he is a Drawer. Adopting this rule and construction, it fol- 
 lows, that the law of New York must settle the liability of the defendants 
 below. The Bill in this case is payable twenty-four days after sight, and 
 must be presented for acceptance ; and it is well settled Ijy our law, that 
 the Holder may have immediate recourse against the Indorser for the de- 
 fault of the Drawee in this respect. (3 Johns. R. 202; Chitty on Bills, 
 231, and cases there cited.) Upon the principle, that the rights and obli- 
 gations of the parties are to be determined by the law of the place, to 
 which they had reference in making the contract, there are some steps, 
 which the Holder must take according to the law of the place, on which 
 the Bill is drawn. It must be presented for payment, when due, having 
 regard to the number of days of grace there, as the Drawee is under obligar 
 tion to pay only according to such calculation ; and it is, therefore, to be 
 presumed, that the parties bad reference to it. So the protest must be ac- 
 cording to the same law, which is not only convenient, but grows out of 
 the necessity of the case. The notice, however, must be given according 
 to the law of the place where the contract of the Drawer or Indorser, as 
 the case may be, was made, such being an implied condition. (Chitty on 
 Bills, 93, 217, 266; Bayley on Bills, 28 ; Story's Conflict of Laws, 298.) 
 The contract of the Drawers in this case, according to the French Law, 
 40* 
 
474 BILLS OF EXCHANGE. [CH. X. 
 
 omission, or laches, to make a due presentment for 
 payment, or any presentment at all, is, as against the 
 Drawer (for it may be, and ordinarily is, otherwise, as 
 
 was, that if the Holder would present the Bill for acceptance within one 
 year from date, it being drawn in the West Indies, and it was not ac- 
 cepted, and was duly protested, and notice given of the protest, he would 
 give security to pay it, and pay the same, if default was also made in the 
 payment by the Drawee after protest and notice. This is the contract of 
 the Drawers, according to this law, and the counsel for the plaintiffs in 
 error insists, that it is also the implied contract of the Indorser in this 
 State. But this cannot be, unless the indorsement is deemed an adoption 
 of the original contract of the Drawers, to be regulated by the law gov- 
 erning the Drawer, without regard to the place where the indorsement is 
 made. We have seen, that this is not so ; that notice must be given ac- 
 cording to the law of the place of indorsement ; and if, according to it, 
 notice of non-payment is not required, none, of course, is necessary to 
 charge the Indorser. But, if the above position of the plaintiffs in error be 
 correct, notice could not then be dispensed with, the law of the Drawer 
 controlling. The above position of the counsel would also be irreconcil- 
 able with the principle, that the indorsement is equivalent to a new Bill, 
 drawn upon the same Drawee ; for then the rights and liabilities of the 
 Indorser must be governed by the law of the place of the contract, in like 
 manner as those of the Drawer are to be governed by the laws of the 
 place where his contract was made. Both stand upon the same footing in 
 this respect, each to be charged according to the laws of the country in 
 which they were at the time of entering into their respective obligations. 
 I am aware, that this conclusion may operate harshly upon the Indorsers 
 in this case as they may not be enabled to have' recourse over on the Drawers. 
 But this grows but of the peculiarity of the commercial code, which 
 France has seen fit to adopt for herself, materially different from that 
 known to the Law Merchant. We cannot break in upon the settled prin- 
 ciples of our commercial law, to accommodate them to those of France or 
 any other country. It would involve them in great confusion. The In- 
 dorser, however, can always protect himself by special indorsement, re- 
 q'uiring the Holder to take the steps necessary, according to the French 
 Law, to charge the Drawer. It is the business of the Holder, without 
 such an indorsement, only to take such measures as are necessary to 
 charge those, to whom he intends to look for payment." 12 Wend. R. 
 443 to 445. See also Ante, § 176, 177, and note, where this subject is 
 discussed. Mr. Chitty holds the same opinion as the Supreme Court of 
 New York. Chitty on Bills, ch. 10, p. 490, 491, 506 (8th edit. 1833) ; 
 Henry on Foreign Law, p. 220, Appendix. 
 
CH. X.] PRESENTMENT FOB PAYMENT. 475 
 
 to the Indorsers)/ that the Drawer had no right to 
 draw the Bill ; that he had no funds in the hands of 
 the Drawee, or expectation of funds, and there was no 
 promise, or obligation of the Drawee, authorizing the 
 drawing of the Bill ; for, in all these cases, as the 
 Drawer can suffer no loss, and the drawing of the Bill 
 may be treated as a deception, or fraud, upon the Payee, 
 or other Holder, the want of due presentment of the 
 Bill is excused.^ The same ruleHvill apply, if the 
 
 1 Ante, ^ 311, 327; Chitty on Bills, ch. 10, p. 470, and note, 472 to 
 480 (8th edit. 1833) ; Wilkes u. Jacks, Peake, R. 202. 
 
 2 Ante, § 311, and note ; Bayley on Bills, ch. 7, § 3, p. 294 to 300 
 5th edit. 1830) ; Chitty on Bills, ch. 9, p. 389 (8ih edit. 1833) ; Id. ch. 
 
 10, p. 467 to 482 ; French's Executors v. Bank of Columbia, 4 Cranch, 
 R. 141 ; U. States v. Barker's Administrators, 4 Wash. Cir. R. 464; 
 Baker v. Gallagher, 1 Wash. Cir. R. 461 ; Valk v. Simmons, 4 Mason, 
 R. 113 ; Biekerdike v, Bollman, 1 Term R. 495 ; Goodall o. Dolley, 1 
 Term R. 712 ; Rogers v. Hopkins, 2 Term R. 713 ; Legge v. Thorpe, 
 12 East, R. 171 ; Rucker v. Hiller, 16 East, R. 43. — The same doctrine 
 applies in the case of the omission of making a due presentment, and the 
 case of an omission to give due notice of the dishonor of a Bill to the an- 
 tecedent parlies ; and, therefore, the reasons for the latter apply directly 
 to the former. Mr. Chitty, on this subject, says : " The reason, why the 
 law in general reqoires the Holder to give prompt notice of nqn-payment 
 by the Drawee of a Bill, or Maker of a Note, is, that the Drawer of the 
 Bill, and Indorser of the Note, may, by such notice, be enabled forthwith 
 to withdraw his effects from the hands of tlie Drawee or Maker, or to stop 
 those, whieh were about to be delivered to him, and to suspend any further 
 credit, and that the Drawer and Indorsers may respectively take the neces- 
 sary prompt measures, against all parlies liable to them, to obtain and en- 
 force payment; and, if such prompt notice be delayed, it is a presumption 
 of law, that the Drawer and Indorsers have been prejudiced. Such dam- 
 age is always, in this country, presumed ; and almost the only allowed 
 proof of the negative is, that of the entire want of effects in the hands of 
 the Drawee continually, from the time of drawing the Bill, until and after 
 the day it fell due ; and this, under such circumstances, as to establish, 
 that the Drawer had no right to expect the Drawee, or any other person, 
 to accept or pay, and that the notice of non-payment would have been of 
 no use to the Drawer, because he could not have sued the Drjtwee, or any 
 other person, on account pf his neglect to pay ; nor will any other proof. 
 
476 BILLS OP EXCHANGE. [CH. X. 
 
 Drawer, having funds in the hands of the Drawee, or of 
 the Acceptor, at the time of drawing the Bill, has with- 
 drawn the same before the dishonor;' unless, indeed, 
 under the circumstances, it might properly be presumed 
 that the Bill would be paid by the Acceptor, and that 
 the Drawer would stand indebted to him for the same 
 amount.'' 
 
 however clear, that theibrawer had not, in fact, been prejudiced by the 
 want of notice, be admitted. And it is always presumed, until the con- 
 trary has been proved, that the Drawer of a Bill had effects in the hands 
 of the Drawee, or had a right to draw upon him for the stmount, and that 
 the Indors^r, or Assignor, had given value for it, and that each has been 
 prejudiced by the Holder's neglect to give due notice, by the delay in the 
 opportunity of resorting to the prior parties liable to them respectively ; 
 for, if due notice had been given to them, they might, by instant solicita- 
 tion and -pressure, perhaps, have obtained payment or security from the 
 Drawee, and a day, or even an hour's delay, in mercantile affairs, will 
 frequently occasion a total non-payment, when, by a prompt notice, pay- 
 ment might have been obtained. This presumption of damage or prejudice 
 having arisen from the laches of the Holder is so strong and uniform, that 
 it is only allowed to be rebutted by one description of proof, namely, that 
 the patty, who objects to the want of notice, had no effects in the hands of 
 the Drawee, and that the Bill was for his accommodation, and, conse- 
 quently that he had no right to draw, and that the notice of non-payment 
 would have been of no avail to him ; and in no other case is evidence ad- 
 missible to show, that, in truth, the Drawer or Indorser was not prejudiced 
 by the neglect. And, although the Holder may be certain, that he can 
 prove that the Drawer had no effects in the hands of the Drawee, yet, as 
 there are so frequently exceptions even to that circumstance, constituting 
 any excuse, it would be most imprudent, in any such case, to omit giving 
 a proper notice." Chitty on Bills, ch. 10, p. 467, 468 (8th edit. 1833). 
 See also Id. 477 to 480 ; 'Ante, § 311, and note. 
 
 ' Ante, § 313 ; Chitty on Bills, ch. 10, p. 473 (8th edit. 1833) ; Id. 
 489. But see ch. 9, p. 390 ; Id. ch. 10, p. 481, 482 ; Conroy v. Warren, 
 9 Johns. Cas. 259 ; Valk v. Simmons, 4 Mason, R. 113 ; Orr v, Magin- 
 nis, 7, East, R. 359; Bayley on Bills, ch. 7, § 2, p. 299, 300 (5lh edit. 
 1830) ; DoUfus v. Frosch, 1 Denio, R. 367. 
 
 2 Bayley on Bills, ch. 7, § 2, p. 296, 299, 300 (5th edit. 1830.)— On 
 this subject Mr. Chitty says : " Where a Bill has been refused acceptance 
 or payment, and the Drawer has either stopped or withdrawn the effects 
 from the hands of the Drawee, though he may be, prima facie, discharged 
 by the neglect to give him due notice, it seems, that, in Finance and Ame- 
 
OH. X.J PRESENTMENT FOR PAYMENT. 477 
 
 § 368. lu France, under the old law (as we have 
 already seen,) the rule was somewhat different from 
 ours, as to the subject of the want of funds in the 
 hands of the Drawee.^ In respect to the Drawer, it 
 was necessary, in order to free him from the obliga- 
 tion to pay the Bill upon its being dishonored either 
 by non-acceptance, or by non-payment, although there 
 were laches on the part of the Holder in making pro- 
 test and giving notice to him that he should prove 
 that he had made due provision for the payment of 
 the Bill, or that the Drawee was indebted to him to 
 the amount at the time, when the Bill ought to have 
 been protested, and notice thereof given to him.® The 
 same rule seems to have been applied to the Ind.orsers,, 
 
 rica, the Hqlder might recover from him the amount of such funds, but 
 there is no decision to this effect in this country. The case most like it ia 
 that of the Payee and Indorser of a Note, or the Drawer of a Bill, having 
 received money from the Maker of the Note, or Acceptor of the Bill, for 
 the express purpose of paying it, and who has, in that case, heen consider^ 
 ed liable, to the extent of that money, to be sued for money had and re- 
 ceived, although he had not had notice of the dishonor. In such a case as 
 that of Rucker v. Hiller, when the Bill was refused acceptance, because 
 the goods did not answer the sample, it should seem unreasonable to allow 
 the Drawer to keep the goods, and not pay the Holder ; and, in a work of 
 high authority, it is suggested, that, if the Drawer got back the goods, he 
 would be liable to that extent. But we have seen, that, where the Drawer, 
 apprehending that the Bill would be dishonored, placed other money, which 
 he had of the Drawee's, in the hands of an Indorser, on his undertaking 
 to return it, when he should have been exonerated from the Bill, the neg- 
 lect of the Holder to give due notice was not excused, because the Drawer 
 having such money in hand, was not justified in applying it in taking up 
 the Bill, unless he had notice of the dishonor." Chitty on Bills, eh, 10, 
 p. 481, 482 (8th edit. 1833). 
 
 1 Ante, § 315. 
 
 2 Pothier de Change, n. 157 ; Jousse, sur I'Ord. 1673, tit. 5, art. 16, 
 p. 108; Code de Comm. art. 115 to 117, 170; Pardessus, Droit Comm. 
 Tom. 2, art. 391 to 393, 435. 
 
478 BILLS OF EXCHANGE. [CH. X. 
 
 in the case of a dishonor for non-acceptance.^ But 
 Pothier was of opinion that the Indorsers were not, or 
 ought not to he held liahle, where there had heen an 
 acceptance of the Bill, even although the Drawee had 
 no funds of the Drawer in his hands ; because the 
 Drawee, by accepting the Bill, admitted himself to be 
 indebted thereby to the Indorsers, to whom it is pay- 
 able, and therefore they might properly be said to have 
 an interest in the debt, and a right of action for it 
 against the Acceptor.^ It would seem that the rule of 
 the old law has been somewhat modified or qualified by 
 the present Code of Commerce;^ for that, by this 
 Code, the acceptance is prima facie evidence of funds 
 of the Drawer in the hands of the Drawee ; and it is 
 full proof thereof in favor of the Indorsers. If the Bill 
 has not been accepted, the Drawer alone is held to 
 prove, in case of a denial, that the Drawee had funds in 
 his hands ; and, unless he does so he wiU be liable on 
 the Bill, although the protest has not been made at the 
 proper time.* This at least is the opinion of Pardes- 
 sus.^ But there seems to be some obscurity in the 
 Code of Commerce on this subject ; ^ and some contra- 
 riety of opinion as to its true interpretation among the 
 French jurists.'' If the Bill is originally made payable 
 at another place than the domicil of the Drawee, and 
 
 1 Ante, § 315 ; Pothier de Change, n. 158 ; Code de Cotnm. art. 116, 
 117, 170 ; Pardessus, Droit Coram. Tom. 2, art. 391 to 393, 435. 
 
 2 Pothier de Change, n. 158 ; Code de Comm. art. 116. 
 
 3 Ante, § 315 ; Code de Comm. art. 115 to 117, 120, 170 ; Pardessus, 
 Droit Comm. Tom. 2, art. 391 to 393. 
 
 * Code de Comm. art. 117. 
 
 K Pardessus, Droit Comm. Tom, 2, art. 435. 
 
 6 Code de Comm. art. 117, 169, 170. 
 
 7 Sautayra, Comm. Code de Comcti. ait. 117 ; Ante, ^ 315. 
 
CH. X.] PRESENTMENT FOE PAYMENT. 479 
 
 accepted accordingly, the -Drawer may be obliged to 
 show, that he had funds at that place ; but, if the 
 acceptance only point out another place than the domi- 
 cil of the Acceptor as the place of payment, then the 
 Drawer need only show that he had funds at the matu- 
 rity of the Bill, in the hands of the Acceptor.^ 
 
 § 369. It will not be a valid excuse for non-present- 
 ment of the Bill for payment at its maturity, that the 
 Drawer had no funds then in the hands of the Accep- 
 tor, if he had an expectation of funds, or, by agreement 
 with the Drawee, he had a right to draw the Bill, or 
 otherwise he had a right to expect the Bill to be paid,' 
 or he had some funds in the hands of the Acceptor 
 when the Bill was drawn, although the balance might 
 vary afterwards, or even be turned into the opposite 
 scale before the maturity of the Bill.^ The like rule 
 will apply to cases where the Drawer had effects at the 
 time of drawing the Bill in the hands of the Drawee, 
 although he was indebted to the Drawee to a much 
 larger amount.' And it may be generally stated, that 
 it will constitute no excuse for the want of a due pre- 
 sentment for payment, that the Acceptor had no funds 
 of the Drawer in his hands at the maturity of the Bill, 
 if the Drawer, or the Indorsers, who might otherwise 
 be liable thereon, will be entitled, upon taking up the 
 Bill, to sue either the Acceptor or any other party on 
 the Bill for the amount due.* Thus, if the Bill be 
 
 1 See Code de Comm. art. 123 ; Pardessus, Droit Comm. Tom. 2, art. 
 5B9, 393. 
 
 2 Orr V. Maginnis, 7 East, R. 359 ; Bayley on Bills, ch. 7, § 2, p. 299, 
 300 (5th edit. 1830) ; Ante, § 311. 
 
 3 BlacUhan v. Doren, 2 Camp. R. 503. 
 
 4 Bayley on Bills, ch. 7, § 2, p. 297 (5th edit. 1830) ; Id. p. 306 to 
 310; Ante, ^312; Ex parte Heath, 2 Ves. & Beames, 240 ; Coryi;. 
 
480 BILLS OF EXCHANQ6. [cfl. X. 
 
 dfawft fof the accotnmodation of the Acceptor, the 
 Drawer will he entitled to a strict presentmeftt, and 
 notice of the dishonor of the Bill;^ or, if drawn and 
 accepted for the accommodation of the Payee, or of a 
 subsequent Indorseej the same rule will equally pre- 
 vail.® 
 
 § 370. The same rule will apply to cases where the 
 Bill has been accepted for the mere accommodation of 
 the Drawer, and he has undertaken to supply funds to 
 pay it ; for in such a case there is no pretence to say 
 that he can suffer except from his own neglect and 
 laches.3 And, although in general, Indorsers are enti- 
 tled to insist upon a due presentment for payment to 
 the Acceptor, at the maturity of the Bill, when it is a 
 Bill drawn or accepted for the accommodation of the 
 Drawer ; yet, if the Bill is drawn and accepted for the 
 accommodation of any particular Indorser, that Indorser 
 will stand in the same predicament as if he were the 
 Drawer of the Bill, and -the omission to make a due 
 presentment Avill be excused as to him, although not as 
 to the other Indorsers.* 
 
 § 371. So, if there be an express agreement, either 
 verbal or in writing, between any of the parties to the 
 Bill to waive or dispense with the necessity of a due 
 
 Scott, 3 Barn. & Aid. 619 ; Norton v. Pickering, 8 Barn. & Cressw. 
 610; Robinson v. Gibson, 3 Camp. K. 334. 
 
 1 Ex parte Heath, 3 Ves. & Beames, R. 240. 
 
 2 Cory V. Scott, 3 Barn. & Aid. 619 ; Bayley on Bills, ch. 7, § 2, 
 p. 297 (5lh edit. 1830.) 
 
 3 Ante, § 300, 301, 310 to 313 ; Chitty on Bills, ch. 10, p. 468, 469 
 (8lh edit. 1833) ; Bayley on Bills, ch. 7,'^ 2, p. 294, 297 (5th edit. 1830) ; 
 Sharp V. Bailey, 9 Barn. & Cressw. 44 1 Brown v. Maffey, 15 East, R. 
 •216 ; Ex parte Heath, 2 Ves. & Beames, R. 240. 
 
 4 Ibid. ; Ante, ^ 310 ; Chitty on Bills, ch. 10, p. 481 (8th edit. 1833) ; 
 Id.- p. 470, 471 ; Bayley on Bills, ch. 7, § 2, p. 297 (5th edit. 1830.) 
 
CH. X.] PRESENTMENT FOR PAYMENT. 481 
 
 presentment of the Bill at its maturity, that will as 
 between themselves, although not as to other parties, 
 constitute a suflScient excuse for non-presentment there- 
 of.^ But a mere verbal agreement which may mislead, 
 but does not purport to waive such presentment, will 
 not be available.^ And equivocal circumstances or 
 agreements will not be deemed any waiver of a due 
 presentment, but the Holder is bound at his peril to 
 make the presentment. Thus, if the Indorser should, 
 upon his indorsing the Bill to a Holder, write over it 
 " Good to A, (the Holder) or order without notice ; " 
 this, although it would be a good waiver of notice to 
 
 1 Ante, ^ 317, 320, 327; Chitty on Bills, ch. 10, p. 541 to 546 (8th 
 edit. 1833); Id. ch. 10, p. 484, 485; Pardessus, Droit Comm. Tom. 2, 
 art. 436 ; Fuller v. McDonald, 8 Greenl. R. 213 ; DeTastet v. Crousillat, 
 2 Wash.' Cir. R. 132 ; Lane v. Steward, 2 Applet. E. 98 ; Coddington v. 
 Davis, 1 Comstock, R. 186 ; S. C. 3 Denio, R. 17.^ 
 
 2 Free v. Hawkins, 1 Holt, E. 550 ; Chitty on Bills, ch. 10, p. 466 
 (8th edit. 1833.) Mr. Chitiy here says : " Even an express verbal agree- 
 ment between all the parties to a Bill or Note, that it should not be put in 
 suit till certain estates had been sold, although it misled, and induced the 
 Holder not to give regular notice of non-payment, when the Bill or Note 
 fell due, constitutes no excuse for such neglect; because, in point of law, 
 no such parol agreement was available to the patty, as a defence to an im- 
 mediate action ; so, as it was inoperative for one purpose, it ought not to 
 have any effect, and therefore notwithstanding it, notice should have been 
 given. And, although there are some exceptions excusing the omission 
 to give notice, yet they are so qualified, that it is very imprudent in any 
 case to rely on them, and every cautious Holder should, immediately after 
 he has received notice of the dishonor of a Bill or Note, give a separate 
 and distinct notice thereof, not only to his immediate Indorser, but to every 
 other party to the instrument, whether by indorsement, or transfer by mere 
 delivery, or by guarantee, or otherwise responsible for the payment ; for, 
 although the want of effects may in some cases excuse the neglect, or a 
 notice from any party to a Bill niay enure to the use of the Holder, yet 
 these ate mere accidents in his favor, on which no prudent person should 
 rely." 
 
 B. OF EX. 41 
 
482 BILLS OP EXCHANGE. [CH. X. 
 
 the Indorser, would not be a waiver of due presentment 
 of the Bill for payment to the Acceptor.^ 
 
 § 372. In the next place, if the Bill has been re- 
 ceived by the Holder merely as collateral security, and 
 the party delivering it is not either a Drawer or In- 
 dorser upon it, or a transferrer of it by delivery, if pay- 
 able to the bearer, or he has merely caused it to be 
 drawn, or indorsed, or delivered over by a third person, 
 as a security to the Holder, such party will not be 
 deemed entitled to a strict presentment of the Bill at 
 its maturity ; nor will he be exonerated from the debt 
 for which it was delivered as collateral security unless 
 he can show, that he has actually sustained some 
 damage or prejudice by such non-presentment.^ The 
 same rule will apply to a party, who is a mere Guaran- 
 tor of the payment of the Bill.^ The reason of both 
 these decisions is, that the case does not fall within the 
 regular usage and custom of merchants as to Bills of 
 Exchange ; and, therefore, the party must bring him- 
 self within the rules of law applicable to other ordinary 
 cases of contract ; and show some loss, or damage, or 
 prejudice, by the neglect or laches of the Holder.^ In 
 
 1 Lane v. Steward, 2 Applet. R. 98 ; Story, Prom. Notes, § 272. 
 
 2 Chitty on Bills, ch. 10, p. 467, 474 (8th edit. 1833) ; Bayley on Bills, 
 oh. 7, § 2, p. 286 to 290 (5th edit. 1830) ; Ante, ^ 305, and note, § 310 ; 
 Post, § 393 ; Thomas v. Breedlove, 6 Mill. Louis. R. 577 ; Swinyard v. 
 Bowes, 5 Maule & Selw. 61 ; Van Wart v. Woolley, 3 B. & Cressw. 
 439, 445. 
 
 3 Ibid. ; Chitty on Bills, ch. 10, p. 529 (8th edit. 1833) ; 1 Bell,Comm. 
 B. 3, ch. 2, § 4, p. 377 (5th edit.) ; Ante, § 305, and note ; Post, § 393 ; 
 Rhett V. Poe, 2 How. Sup. Ct. R. 457 ; Gibbs v. Cannon, 9 Serg. & R. 
 198 ; Oxford Bank v. Haynes, 8 Pick. ,423, 428. See Lee v. Dick, 10 
 Peters, R. 482 ; Reynolds v. Douglas, 12 Peters, R. 497. 
 
 i Ibid. ; Douglas v. Reynolds, 7 Peters, R. 125 ; S. C' 12 Peters, R. 
 
CH. X.] PEESBNTMENT FOB PAYMENT. 483 
 
 this respect our law differs from that of France ; for, 
 wherever there is a guaranty upon the Bill by a third 
 person, which is common in France and upon the Con- 
 tinent of Europe, in such a case, the same protest must 
 be made for non-payment, and the same notice given of 
 the dishonor to the Gruarantor as to the Drawer and 
 Indorsers.^ But, by the French Law, and the foreign 
 
 497 ; Wildes v. Savage, 1 Story, R. 22 ; Hitchcock v. Humphrey, The 
 (English) Jurist for May 20, 1843, p. 433 ; Swinyard v. Bowes, 5 Maule 
 & Selw. 63. — Cases often occur where there is a general guaranty writ- 
 ten on a Bill, either by a person, who is a party to the Bill, or by a third 
 person ; and the question has arisen, whether such a guaranty takes place 
 and may be sued upon by any subsequent Holder of the Bill, where no 
 person in particular is named on the guaranty, to whom it is made. If the 
 guaranty is in terms in favor of any Holder, or the bearer, or is in any 
 other terras, expressed to be negotiable to the Indorsee, or his order, it 
 would seem to be negotiable, and all the rights immediately to pass to 
 every subsequent Holder against the Guarantor. And, if no language of 
 that sort is used, and yet if no person whatsoever is named to whom the 
 guaranty is made, then also it has been said, that it is equally negotiable, 
 and an action can be brought upon it in the name of any subsequent 
 Holder, who has the title to the Bill itself. But, if a particular person is 
 named on the Bill to whom alone the guaranty is made, then it is not 
 negotiable, and the right under the guaranty belongs exclusively to such 
 person. And it has been further suggested, but it may well be doubted, 
 whether it were founded in law, that if the guaranty be on a separate 
 paper, and in its terms negotiable, no person but the first Holder can sue 
 thereon. McLaren v. Watson's Executors, 26 Wend. R. 425. See 
 Miller v. Gaston, 2 Hill, N. Y. R. 188 : Post, § 455 to 459. 
 
 ' Code de Comm. art. 141, 143, 166 to 471 ; Pardessus, Droit Comm. 
 Tom. 5, art. 1497 ; Ante, § 305, and note ; Post, § 393 to 395. — The 
 Code of Commerce has the following articles on this subject; "Art. 141. 
 The payment of a Bill of Exchange, independently of the acceptance and 
 the indorsement, may be secured by a written guaranty. Art. 142. This 
 guaranty is given by a third person, on the Bill itself, or in a separate 
 instrument of writing. The person thus becoming Guaranty is jointly and 
 severally bound with the Drawers and Indorsers, saving any different 
 stipulations between the parties." In the case of McLaren v. Watson's 
 Executors, Mr. Senator Verplanck, in his elaborate opinion, maintained 
 that the guaranty of a Bill in New York was equally negotiable in favor 
 of any subsequent Holder, whether it was written on the Bill or on a 
 
484 BILLS OF EXCHANGE. [CH. X. 
 
 law generally, the want of protest and of due notice 
 will not in any case affect the rights of the Holder 
 unless he has suffered some injury or prejudice thereby, 
 and then only pro tanto} 
 
 § 373. In like manner, if the Drawer, or an Indorser, 
 after full knowledge of the fact of an omission to 
 make due presentment, promises to pay the Bill, it will 
 amount to a waiver of such presentment, and hind the 
 Promissor to pay the Bill.^ And such promise may be 
 express, or it may be implied from circumstances.^ 
 Thus, it has been decided, that a payment of a part, or a 
 promise to pay the whole or part of a bill, or to " see it 
 paid," or an acknowledgment, that " it must be paid," 
 or a promise, that " he will set the matter to rights," or 
 a qualified promise, or a mere unaccepted offer of a 
 composition with other creditors, made by the person 
 insisting on the want of notice (after he was aware of 
 the laches,) to the Holder of a Bill, amounts to a 
 waiver of the consequence of the laches of the Holder, 
 and admits his right of action.'* But such a promise, 
 
 separate paper, if it was made generally, not naming any person as Gua- 
 rantor, or making the guaranty to the Payee, or Indorser, or order. See 
 also Miller v. Gaston, 2 Hill, N. Y. R. 188 ; Ketchell v. Burns, 24 Wend. 
 R. 456 ; Uphara v. Prince, 12 Mass. R. 14. This subject will be resumed 
 in our subsequent pages, and more fully discussed there. Post, ^ 455 to 
 459. 
 
 1 Ante, § 306 ; Post, § 478, and note ; Pothier de Change, 156, 157. 
 
 2 Ante, ^ 280, 320, and note, 327 ; Chitty on Bills, ch. 9, p. 390 (8th 
 edit. 1833) ; Id. ch. 10, p. 533, 540 ; Stevens v. Lynch, 12 East, B. 38; 
 Thornton v. Wynn, 12 Wheat. R. 183 ; Fuller v. McDonald, 8 Greenl. 
 R. 213; Tibetts ». Dowd, 23 Wendell, 412; Van Derveer v. Wright, 
 6 Barbour, Sup. Ct. R. 547. 
 
 3 Ante, § 280, 320, and note. 
 
 4 Chitly on Bills, ch. 10, p. 533 (8th edit. 1833.) —Mr. Chitty has 
 added (p. 535, 536) : " And, in some of the cases upon this subject, the 
 eifect of such partial payment, or promise to pay, has been carried still 
 
CH. 
 
 X.] PEESENTMENT FOB PAYMENT. 485 
 
 made in ignorance of the facts, will not be binding, or 
 a waiver of the laches.' And if the promise be a quali- 
 
 farther, and been considered not merely as a waiver of the right to object 
 to the laches, but even as an admission, that the Bill or Note had, in fact, 
 been regularly presented and protested, and that due notice of dishonor 
 had been given ; and this, even in cases where ihe party who paid or 
 promised, afterwards stated, that in fact he had not had due notice. &c. ; 
 because it is to be inferred, that the part-payment, or promise to pay, 
 would not have been made unless all circumstances had concurred to sub- 
 ject the party to liability, and induce him to make such payment or pro- 
 mise. Thus, where an Indorsee, three months after a Bill became due, 
 demanded payment of the Indorser, who first promised to pay it, if he 
 would call again with the account, and afterwards said, that he had not 
 had regular notice, but, as the debt was justly due, he would pay it ; it 
 was held, that the first conversation, being an absolute promise to pay the 
 • Bill, was, 'prima facie, an admission that the Bill had been presented to 
 the Acceptor for payment in due time, and had been dishonored, and that 
 due notice had been given of it to the Indorser, and superseded the neces- 
 sity of other proof to satisfy those averments in the declaration ; and that 
 the second conversation only lipiited the inference from the former, so far 
 as the want of regular notice of the dishonor to the defendant went, which 
 objection he then waived. So, where the Drawer of a foreign Bill, upon 
 being applied to for "payment, said, ' My affairs are at this moment de- 
 ranged, but I shall be glad to pay it, as soon as my accounts with my 
 agents are cleared,' it was decided, that it was unnecessary to prove the 
 averment of the protest of the Bill. And, in an action by the Indorsee 
 against the Drawer of a Bill, the plaintiff did not prove any notice of dis- 
 honor to the defendant, but gave in evidence, an agreement made between 
 a prior Indorser and the Drawer, after the Bill became due, whreh recited, 
 that the defendant had drawn, amongst others, the Bill in question, that it 
 was over-due, and ought to be in the hands of the prior Indorser, and 
 that it was agreed the latter should take the money due to him upon the 
 Bill by instalments ; it was held, that this was evidence that the Drawer 
 was at that time liable to pay the Bill, and dispensed with other proof of 
 notice of dishonor. Again, where, in an action against the Drawer, in lieu 
 of proof of actual notice, the defendant's letter was proved, stating, ' that 
 he was an accommodation Drawer, and that the Bill would be paid before 
 next Term,' though not saying ' by defendant,' Lord EUenborough said, 
 
 1 Chitty on Bills, p. 390 (8th; edit. 1833) ; Id. oh. 10, p. 538, 539 ; 
 Bayley on Bills, ch. 7, § 3, p. 291 to 293 (5th,edit. 1830) ; Garland v. 
 The Salem Bank, 9 Mass. R. 408 ; 1 Bell, Comm. B. 3, ch. 2, § 4, 
 p. 423 (5th edit.) 
 
 41* 
 
486 BILLS OF EXCHANGE. [CH. X. 
 
 fied or conditional one, the Holder can recover only by 
 showing that the qualification or condition has been 
 strictly complied with or observed.' 
 
 § 374. If, before or at the time of the maturity of 
 the Bill, the Drawer or Indorsers have received full 
 security or Indemnity for the amount of the Bill, 
 either on account, or by funds or securities, deposited 
 
 ' The defendant does not rely upon the want of notice, but undertakes, 
 that the Bill will be duly paid before the Term, either by himself or the 
 Acceptor. I think the evidence sufficient.' " See also Wood v. Brown, 
 1 Stark. R. 217 ; Lundie v. Robertson, 7 East, R. 231 ; Gibbon v. Cog- 
 gan, 2 Camp. R. 188 ; Gunson v. Metz, 1 Barn. & Cressw. 193. Mr. 
 Chitty afterwards (p. 539) adds: "The conduct, however, of the party 
 insisting on the want of notice, must in general be unequivocal, and his* 
 promise must amount to an admission of the Holder's right to receive 
 payment; and, therefore, where a foreigner only said, .'I am not ac- 
 quainted with your laws, if I am bound to pay it I will,' such promise was 
 not considered a waiver of the objection of want of notice ; and it has 
 been considered, that, if the promise were made on the arrest, it shall not 
 prejudice ; but this doctrine seems questionable. If an Indorser propose 
 to the Holder to pay the Bill by instalments, and such offer be rejected, 
 he is at liberty afterwards to avail himself of the want of notice. So it 
 was decided, that, if the Drawer or Indorser, after having been arrested, 
 upon being asked, what he had to propose by way of settlement, said, ' I 
 am willing to give my Bill at one or two months,' but which was rejected, 
 this does not obviate the necessity of proving notice ; and Lord Ellenbo- 
 rough observed, ' This offer is neither an acknowledgment, nor a waiver, 
 to obviate the necessity of expressly proving notice of the dishonor of the 
 Bill. He might have offered to give his acceptance at one or two months, 
 although, being entitled to notice of the dishonor of the former Bill, he 
 had received none, and, although upon this compromise being refused, he 
 meant to rely upon this objection. If the plaintiff accepted the offer, good 
 and well ; if not, things were to remain on the same footing as before it 
 was made.' But an offer to the Holder of a Bill of a general composition, 
 of so much on the pound on all a party's debts, although not accepted, has 
 been considered as dispensing with proof of notice of dishonor." In the 
 case of Borradaile v. Lowe, 4 Taunt. R. 93, it seems to have been thought, 
 that, in case of the Drawer, the waiver might be either express or implied. 
 But, in case of an Indorser, it must be express. There does not seem 
 any solid ground to support such a distinction. 
 
 1 Chitty on Bills, ch. 10, p. 540, and note (8th edit. 1833.) 
 
CH. X.] PRESENTMENT FOR PAYMENT. 487 
 
 with them to meet their liability on the Bill upon its 
 dishonor, then, and in that case, as to the party so 
 having such security, the omission to make due pre- 
 sentment thereof for payment will be excused ; for 
 such party cannot, under such circumstances, suffer any 
 real loss.' The same rule seems, substantially, incor- 
 porated into the Law of France.^ 
 
 § 375. In this connection, it may be proper also to 
 state what will not be held a sufficient excuse for laches 
 in the Holder, in making due presentment for payment. 
 Some of the cases under this head have been already 
 considered, in treating of the want of a due present- 
 ment of Bills for non-acceptance.^ But it is important 
 , to bring them again under review in this connection. 
 In the first place (as we have seen,) neither the bank- 
 ruptcy, nor insolvency, nor death of the Acceptor, will 
 constitute any excuse for not making a due present- 
 ment* Nor will it constitute any excuse, that the 
 Drawee, although he had effects in his hands, told the 
 J)rawer at the time of the drawing of the Bill, that he 
 should not be able to provide for it ; ^ and that the 
 Drawer understood that he should have to provide for 
 
 1 Bayley on Bills, ch. 7, § 3, p. 310 (5th edit. 1830) ; Chitty on Bills, 
 ch. 8, p. 368 (Sih edit. 1833) ; Id. ch. 10, p. 473, 489 ; Bond v. Farnham, 
 5 Mass. R. 170 ; Mechanics Bank v. Griswold, 7 Wend. R. 165 ; Barker 
 V. Parker, 6 Pick. R. 80 ; Mead v. Small, 2 Gieenl. R. 207 ; Barton v. 
 Baiter, 1 Serg. & Rawle, 334 ; Corney v. Da Costa, 1 Esp. R. 302 ; 
 Ante, § 316. 
 
 2 Code de Comra. ait. 171 ; Pardessus, Droit Coram. Tom. 3, art. 435. 
 
 3 Ante, 306, § 318 to 320; 3 Kent, Coram. Lect. 44, p. 104 to 109 
 (4th edit.) 
 
 ■* Ante, § 234,279,307, 318, 319, 326; 1 Bell, Coram. B. 3, ch. 2,^4, 
 p. 421 (5th edit.) ; Pardessus, Droit Coram. Tora. 2, art. 426 ; Pierce v. 
 Whitney, 16 Shepley, R. 188 ; Story, Prom. Notes, § 288. 
 
 6 Bayley on Bills, ch. 7, § 2, p. 304, 305 (5th edit. 1830) ; Staples v. 
 Okines, 1 Esp. R. 332; Ante, § 311. 
 
488 BILLS OF EXCHAHGE. [CH. X. 
 
 it. Nor will it constitute any excuse, that the Drawer 
 or the Indorsers of the Bill became so merely for the 
 accommodation of the Acceptor, and knew him to be 
 insolvent, when the Bill was drawn.' Nor will it con- 
 stitute any excuse, that the Drawer has reason to be- 
 lieve, that the Bill will not be paid at its maturity, and 
 has even promised the Holder that he will endeavor to 
 provide funds to pay the Bill, whatever may be the 
 .effect of such facts in excusing the Holder from giving 
 due notice to him of the dishonor, if the Bill were duly 
 presented and not paid.^ Nor will a waiver of a right 
 to notice of the dishonor excuse the Holder from making 
 a due presentment of the Bill for payment.® Nor, per- 
 haps, will it be any sufficient excuse, that the Drawer 
 has given notice to the Acceptor not to pay the Bill, if 
 presented.'* 
 
 § 376. In the next place, the fact that the Drawer 
 or Indorser of a Bill belongs to two firms, one of which 
 firms has signed the Bill, and the other has indorsed it, 
 is no excuse for non-presentment of the same at its 
 maturity; for knowledge of a non-payment is not 
 equivalent to notice of non-payment* So, the fact 
 
 1 Walton V. Watson, 13 Martin, R. 347 ; Nicholson v. Gouthit, 2 H. 
 Black. R. 609. See also Chitty on Bills, ch. 10, p. 470, 471, 473 (8th 
 edit. 1833) ; Bayley on Bills, ch. 7, § 2, p. 297, 308 (5th edit. 1830) ; 
 Ante, § 311, 312, 314, 316, 369, 370. 
 
 2 Chitty on Bills, ch. 9, p. 390 (8th edit. 1833) ; Bayley on Bills, ch. 7, 
 ^ 2, p. 305 (5th edit. 1830) ; Prideaux v. Collier, 2 Stark. R. 57. 
 
 3 Berkshire Bank «. Jones, 6 Mass. R. 534; Backus v. Shipherd, 11 
 Wend. R. 629. 
 
 4 Chitty on Bills, ch. 9, p. 390 (8th edit. 1833.) But Mr. Chitty puts 
 a query. See also Chitty on Bills, ch. 10, p. 484 (8th edit.) 
 
 6 Dwight V. Scovill, 2 Connect.* R. 654 ; Caunt v. Thompson, 7 Man- 
 ning, Gr. & Scott, R. 400. But see Stevens v. West, 1 Howard, Mis- 
 sissippi, R. 308. 
 
CH. X.] PRESENTMENT FOR PAYMENT. 489 
 
 that the Acceptor has told the Drawer, before the 
 maturity of the Bill, that he could not take it up, and 
 the Drawer must, and that the Acceptor has given 
 money to the Drawer Tor that purpose, will not excuse 
 the want of a due presentment ; ^ nor, that the Drawer 
 in apprehension of the dishonor of the Bill, has lodged 
 other money of the Acceptor in the hands of the In- 
 dorser, upon an undertaking by the Indorser to return 
 it, if he should be exonerated from payment of the 
 Bill.® So, the fact, that the Drawer of a Bill is dead at 
 the maturity of the Bill, and that the Indorser is ap- 
 pointed his administrator, is, for the same reason, no 
 dispensation from the necessity of making a due pre- 
 sentment of the Bill for payment at its maturity.^ 
 
 § 377. The reason of all these decisions turns upon 
 one and the same general principle. . The Commercial 
 Law having required a due presentment for payment, 
 and a due notice of dishonor, these acts are to be 
 deemed waived or dispensed with, only when, from the 
 nature or the circumstances of the case, both of them 
 must be unnecessary or immaterial to the Drawer or 
 the Indorsers, who may be affected thereby.'' Such a 
 presentment, and such a notice, are, therefore, to be 
 treated as conditions precedent to the liability of the 
 Drawer or Indorsers, belonging to the leading character 
 of the contract ; and it is of no consequence, that the 
 
 1 Bayley on Bills, ch. 7, § 2, p. 303 (5th edit. 1830) ; Baker v. Birch, 
 3 Camp. R. 107. 
 
 2 Baylev on Bills, ch. 7, § 2, p. 304 (5th edit. 1830) ; Clegg v. Cotton, 
 3 Bos. & Pull. 239. 
 
 3 M'Gruder v. Union Bank of Georgetown, 3 Peteis, R. 87 ; Juniata 
 Bank v. Hall, 16 Serg. & Rawle, 157. 
 
 * French's Executors v. Bank of Columhia, 4 Cranch, R. 141 ; Gaunt 
 V. Thompson, 7 Manning, Gr. & Scott, R. 400. 
 
490 BILLS OP BXOHANaE. [CH. X. 
 
 Drawer or Indorsers may not have been actually pre- 
 judiced thereby.' Of course, nothing short of an ex- 
 press or implied agreement, or waiver of such present- 
 ment and notice, ought to bind the Drawer or Indor- 
 sers ; and such an agreement, or waiver, ought never, 
 in derogation of their admitted rights, to be inferred 
 from doubtful or equivocal acts or circumstances, which 
 are capable of different interpretations. 
 
 1 Bayleyon Bills, ch. 7, ^ 2, p. 302, 303 (5th edit. 1830) ; Ante, §311 ; 
 Pierce v. Whitney, 16 Shepley, R. 158. 
 
CH. XI.] PEOCEEDINGS ON NON-PAYMENT. 491 
 
 CHAPTER XL 
 
 NON-PAYMENT — PROCEEDINGS ON. 
 
 § 378. Having considered the rights and duties of 
 the Holder in the presentment of Bills for payment at 
 their maturity, we are next led' to the consideration of 
 his obligations and duties in cases of the dishonor of 
 foreign Bills by non-payment, either in whole or in 
 part. And these may be comprised under two heads : 
 (1.) The obligation or duty to make a due protest for 
 non-payment; and (2.) That of giving due notice of 
 the dishonor to the other parties upon the Bill, who 
 may be liable to pay him the amount, in case of its 
 dishonor. These topics have been already discussed at 
 large in the precedingpartof this work, when we were 
 considering the obligations and duties of the Holder 
 upon the non-acceptance of the Bill ; ' and, therefore, a 
 very concise summary of them in this place will suf- 
 fice ; since the duties and obligations in these respects, 
 are, in general, exactly the same in cases of non-pay- 
 ment of foreign Bills, as they are in cases of non- 
 acceptance thereof 
 
 § 379. In the first place, then, it is ordinarily indis- 
 pensable, unless excused by some of the circumstances 
 already adverted to,® that a protest should be made 
 immediately upon the dishonor, according to the course 
 
 1 Ante, § 273, 296 to 301, 305 to 321. 
 
 2 Ante, § 373 to 284. 
 
492 BILLS OP EXCHANGE. [CH. XL 
 
 prescribed by law therefor.^ And this rule prevails 
 not only in the law of England and America, but it 
 seems adopted by all modern commercial nations, with 
 a view to the public policy of having a known uniform 
 proof of the fact of dishonor under the sanction of 
 public authority.^ The place of the payment of the 
 Bill is that, where the protest is to be made f and the 
 law of the place is to govern as to the time and for- 
 malities, and acts, of protest.* By the law of Eng- 
 land, and Scotland, and America, the protest should be 
 made on the last day of grace, where the Bill is due ; * 
 
 1 Ante, § 273 ; Pothier de Change, n. 133 ; Pardessus, Droit Comtn. 
 Tom. 2, art. 417, 420, 424 to 427, 429 to 438 ; Union Bank v. Hyde, 6 
 Wheat. 572. 
 
 2 Ante, § 273, 274, 277 ; Pardessus, Droit Comm. Tom. 2, art. 381, 
 382 ; Id.. Tom. 5, art. 1495 ; Sa,vary, Le Parfait, N^gociant, Tom. 1, Ft. 
 3, ch. 14, p. 850, 851 ; Heineco. de Camb. cap. 4, ^ 40 ; Ohitty on Bills, 
 ch. 10, p. 489, 490 (8th edit. 1833.) 
 
 3 Ante, § 282. 
 
 4 Ante, ^ 138, 276, 278, 282, 283 ; Bank of Rochester v. Gray, 2 Hill, 
 N. Y. Rep. 227 ; Pardessus, Droit Comm. Tom. 5, art. 1495, 1497 ; Sa- 
 vary, Le Parfait N6gociant, Tom. 1, Part 4, ch. 14, p. 851 ; Pothier de 
 Change, u. 155, 172. — W^hat the protest should contain, and the form 
 thereof, has been already adverted to. Ante, § 276, 277, and note ; Par- 
 dessus, Droit Comm. Tom. 2, art. 431. See also Cayuga County Bank 
 V. Hunt, 2 Hill, N. Y. Rep. 635 ; Heineco. de Camb. cap. 4, § 36. 
 Heineccius says : " Fiunt protestationes non quidem ad acta, (quamvis si 
 talis interponatur, ilia procul dubio itidem rata esset, censente Zipsell.) 
 sed adhibitis notario et duobus testibus, quibus praesentibus exactor litteras 
 cambiales trassato iterum ad acceptandum offert. Quo facto, negataque 
 acceptatione, notarius declarat, er woUe hiermit wider Trassirern des 
 Vechsels, sowohl wegen nieht erfolgter Bezahlung, als auoh wegen alles 
 hieraus entstehenden Schadens, Unkosden, Interesse, Wechsels, und 
 Wieder-Wechsels sollenniter protestiret haben. Super quo acta notarius 
 deinde conficit instrumentum solemne, idque a se et testibus subscriptum 
 tradit praesentanti domum trassantis remiltendum." See also Chitty on 
 Bills, ch. 10, p. 489 to 494, 497, 500 (8th edit. 1833) ; Code de Comm. 
 art. 173. 
 
 5 Chitty on Bills, ch. 10, p. 508 (8th edit. 1833.) 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 493 
 
 but by the law of France, and of most, if not of all 
 the nations of continental Europe, the protest should 
 be made on the next day, or next business day, after 
 the non-payment.^ 
 
 § 380. If part payment only is made by the Acceptor, 
 
 1 Ante, § 278, 283, 290 ; Code de Comm. art. 153, 162, 172 ; Pothier 
 de Change, n. 139, 140, 145 ; Pardessus, Droit Comm. Tom. 2, art. 408 
 to 410; Id. Tom. 5, art. 1489, 1497, 1498; Heinecc. de Camb. cap. 4, 
 § 41 ; 1 Savary, Le Parfait N6goeiant, Part 3, ch. 14, p. 850 ; Chitty on 
 Bills, eh. 10, p. 508 (8th edit. 1833.) Heineccius says, that the protest 
 may be on the day of a fair, unless specially prohibited by law ; but not on 
 a Sunday : " Protestatio hsec, quia non est actus contentiosBe jurisdictionis, 
 et res ita comparata est, ut moram non ferat, diebus etiam feriatis recte 
 interponitur, nisi leges cambiales id diserte prohibeant. Prohibent autem 
 O. C. Brunisuic. art. 41, Norimberg. cap. 2, § 1, Colon, art. 1, Dantisc. 
 art. 18, Brandenburg, art. 24. In 0. C. Augustan, cap. 1, ^ 15. Tan- 
 tum solis dies excipitur, non autetn reliqua festa, si id exigat neoessitas." 
 Heinecc. de Camb. cap. 4, § 37, 41. Pothier de Change, n. 140, 142. 
 Pothier says, that Bills payable at fairs, ought to be protested on the last 
 day of the particular fair, without any allowance of grace. Pothier de 
 Change, n. 142. Heineccius, as to Bills payable at fairs, says : " Si 
 Gambia feriarum praesentantur, tunc trassatus aut pure declarat, se lilteras 
 non acceptaturum, aut oh defectum aliquem, e. gr., ob nondum acceptas 
 litteras adviSorias, acceptationem denegat. Priore casu statim interponen- 
 da est protestatio, domumque remittenda, nee opus est, ut exspeetetur dies 
 solutionis. Posteiiore casu itidem interponitur protestatio, neo tamen ea 
 domum remittitur, nisi finita prima hebdomade nundinarum. Si ergo in- 
 terea trassatus sese ad acceptationem adhuo offert, protestatio plane re- 
 jioienda est." Heinecc. de Camb. cap. 4, § 31. Heineccius adds, that 
 the hour when demand of payment is to be made on Bills, payable at fairs, 
 is sunset. His language is : " Ut vero salvus sit prsesentanti ille regres- 
 sus, necesse est, ut rite et stato tempore interponatur protestatio; id quod 
 in cambiis feriarum fieri debet ipso solutionis die usque ad vesperam vel 
 solis occasum computando, nisi hora specialis legibus sit definita. Extra 
 nundinas protestatio interponenda circumaciis diebus induciarum (nach 
 Ablauf der Respit-Tage,) sicubi tales concedantur." Heinecc. de Camb. 
 cap. 4, ^ 40. The modern Code of Commerce of France (art. 133) de- 
 clares, that a Bill of Exchange, payable at a fair, becomes payable on the 
 eve of the day (that is, the evening before the last day) appointed for the 
 breaking up of the fair, and on the day on which the fair is held, if it is 
 not to last longer than one day. 
 
 B. OF EX. 42 
 
494 BILLS OF EXCHANGE. [CH. XL 
 
 our law requires, that protest should be made, and due 
 notice given, exactly as in other cases, stating the 
 facts.' And this is equally true in the law of France, 
 and in that of other commercial countries.*' Heinec- 
 cius says : " Nee permissum est trassato, loco toiius summce 
 partis soMionem in se reaper e, nee prcesentans in eo promisso 
 adquiescere debet, sed statim interponere protestationem, 
 guamvis summam dblatam omnino aeeipere possit." ^ 
 
 § 381. In the next place, as to notice of dishonor by 
 non-payment of a Bill of Exchange. This is, in general, 
 and unless under special circumstances, which constitute 
 an excuse or dispensation, such as those already men- 
 tioned,* indispensable by our law, in order to charge 
 either the Drawer or the Indorsers with the payment 
 of the Bill ; and, if any party, who is entitled to notice 
 of the non-payment, has not due notice thereof given or 
 sent to him, he will be discharged from all liability to 
 pay the Bill, although other parties, who have had due 
 notice, may be liable to pay the same. The Holder, 
 therefore, must, in all cases, subject to the exceptions 
 above referred to, give due notice to all the antecedent 
 parties, from whom he means to require payment of the 
 Bill, otherwise they will be discharged.* What consti- 
 
 1 Ante, § 240, and note; 1 Bell, Comm. B. 3, ch. 2, ^ 4, p. 415 (5th 
 edit. 1830). 
 3 Ante, § 241. See also Code de Comm. art. 124, 162, 163. 
 
 3 Heinecc. de Carob. cap. 4, § 39. 
 
 4 Ante, § 275, 479, 280 ; 1 Bell, Coram; B. 3, ch. 2, p. 417, 418 (5th 
 edit.); Chitty on Bills, ch. 10, p. 631 (8ih edit. 1833). 
 
 6 Chitty on Bills, ch. 10, p. 530, 531 (8lh edit. 1833) ; Ante, § 324, 325. 
 — Mr. Chitty says ; " It was once thought, that notice of non-acceptance 
 must, in all cases, be given to the drawer of the Bill, and demand of pay- 
 ment made of him ; or that in default thereof, the Indorsers would be dis- 
 charged, notwithstanding they had regular notice ; because, for want of 
 notice to the Drawer, the Indorsers were without remedy against him after 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 495 
 
 tutes due diligence, seems properly to be a matter of 
 law, where all the facts and circumstances are ascer- 
 tained.' 
 
 § 382. Notice must be given within a reasonable 
 time ; and what that time is, must depend upon the 
 circumstances of particular cases.® It must also be 
 given in a reasonable mode or manner ; and both these 
 considerations may be materially affected by usages in 
 particular places or countries. In general, it may be 
 said, that notice may be given to the Drawer or Iiidorsers 
 personally (where that is the proper mode) on the 
 same day that the dishonor takes place, after that event 
 has happened ; and by mail of the same day, if that is 
 the proper mode of giving notice.^ But, in all cases. 
 
 they had successively taken up the Bill. This opinion, however, so far as 
 it related to foreign Bills, was overruled in the case of Bomley v. Frazier 
 (I Str. R. 441) ; and, in its relation to inland Bills, in the case of Heylyn 
 and others against Adamson (3 Burr. 669) ; and, as to checks on bankers, 
 in Bickford v. Ridge (3 Camp. 539) ; on the principle, that, to require a 
 demand of the Drawer, or prior Indorser, would be laying such a clog 
 upon Bills, as would deter every person from taking them. Besides, the 
 Acceptor is primarily liable, and, as the act of indorsing a Bill is equi- 
 valent to making a new Bill, every Indorser thereby separately undertakes, 
 as well as the Drawer, that the Drawee shall honor the Bill, and the 
 Holder may, consequently, immediately resort to him, without calling on 
 any of the other parties ; and it is the business of the Indorser, as soon 
 as he has received notice himself, to forward the like notice to the Drawer 
 and all persons to whom he means to resort. However, it is advisable for 
 the Holder to give notice to every party, as soon as he can ascertain 
 his residence ; for, otherwise, he will be without remedy against him, 
 unless some other party to the Bill has given him notice, in which case 
 such notice may enure to his use." Chitty on Bills, ch. 10, p. 530 (8th 
 edit. 1833). 
 
 1 Rhett V. Poe, 2 How. Sup. Ct. R. 457. 
 
 2 Ante, § 284 to 286 ; 3 Kent, Comm. Lect. 44, p. 104 to 109 (4lh 
 edit.) ; Rhett v. Poe, 2 How. S. C. R. 457. 
 
 s Ante, § 288, to 291, 305 ; Burbridge v. Manners, 3 Camp. 193 ; Shed 
 V. Brett, 1 Pick. R. 401 ; Corp v. M'Comb, 1 Johns. Cas. 328 ; Bussard t'. 
 
496 BILLS OF EXCHANGE. [CH. XI 
 
 where notice is required to be given, it is sufficient, if 
 the notice is personal, that it is given on the day 
 succeeding the day of the dishonor, early enough for 
 the party to receive it on that day.' If sent by the 
 mail, it is sufficient, if it is sent by the mail of the next 
 day, or the next practicable mail.'' The notice must be 
 personal, or by a verbal or written notice, delivered to 
 the party, entitled to notice, or at his dwelling-house, 
 or place of business, if he lives in or near the town or 
 city, where the dishonor takes place.* And, if, by the 
 usage of such city or town, there is a penny-post to 
 carry letters and notices within the city or town, that 
 will be sufficient.* If the party, entitled to notice, does 
 not reside in or near the same town or city, personal 
 notice is not necessary ; and the notice is sufficient, if 
 sent by the mail, directed to the proper post-office, where 
 he lives, or is accustomed to receive his letters, or to the 
 nearest post-office, if there be none in the town, where 
 he lives.® In most cases, also, the notice may be sent 
 
 Levering, 6 W^heat. R. 102 ; Lindenberger v. Beall, 6 Wheat. R. 104 ; 
 Ex parte Maline, 19 Ves. 216 ; Chitty on Bills, ch. 10, p. 512 to 514 (8th 
 edit. 1833) ; 1 Bell, Coram. B. 3, ch. 2, § 4, p. 415 to 419 (5th edit.) ; 
 3 Kent, Comm. Lect. 44, p. 104 to 109 (4th edit.) ; Carter v. Burley, 9 
 New Hamp. R. 556. 
 
 1 Ante, ^ 388 to 291 ; 3 Kent, Comm. Lect. 44, p. 104 to 109 (4th 
 edit.). 
 
 2 Ante, ^ 288 to 290; 3 Kent,. Comm. Lect. 44, p. 106 to 108 (4th 
 edit.) ; Carter v. Burley, 9 New Hamp. R. 556. 
 
 3 Ante, § 289, 297, 300, 305 ; Ransom v. Mark, 2 Hill, N. Y. Rep. 
 587 ; Chitty on Bills, ch. 10, p. 515, 516 (8th edit. 1833). 
 
 * Ante, \ 289, 291 ; Chitty on Bills, ch. 10, p. 503 to 505 (8th edit. 
 1833) ; Ransom v. Mark, 2 Hill, N. Y. Rep. 587 ; 3 Kent, Comm. Lect. 
 44, p. 106, 107 (4th edit.). 
 
 5 Ante, § 288, 290, 291, 297, 300 ; Ransom v. Mark, 2 Hill, N. Y. R. 
 587 ; Stuckert v. Anderson, 3 Whart. R. 116 ; Weakley v. Bell, 9 Watts, 
 R. 213 ; Chitty on Bills, ch. 10, p. 517, 518 (8th edit. 1833) ; 3 Kent, 
 €omm. Lect. 44, p. 107, 108 (4th edit.). 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 497 
 
 by a special messenger, if that be an appropriate mode, 
 and there be no unnecessary delay occasioned thereby.' 
 
 § 383. If notice is to be sent to a foreign country, it 
 should go by the next regular packet, if there be any, 
 and there be a reasonable time to send it by that convey- 
 ance.^ If there be no regular packet, then it may be 
 sent by the next convenient and seasonable opportunity, 
 either directly to the port or place, where the notice is 
 to be sent, or as near thereto as practicable.^ If the usual 
 course is by mail with the foreign country, where the 
 notice is to be sent, that mode of conveyance should be 
 pursued, and the most usual particular route adopted.* 
 
 § 384. Where an Indorser receives notice, and is enti- 
 tled to reimbursement from other parties upon the Bill, 
 he is in the same manner, bound to give notice of the 
 dishonor, to those parties, within a reasonable time ; and 
 the same rule will apply to his case, as to the case of 
 the Holder.* And each successive Indorser, receiving 
 such notice, has until the next day to give or send notice 
 to the other parties, to whom he is entitled to look for 
 reimbursement.^ If an Indorser receives notice of the 
 dishonor earlier than the law positively requires, but 
 still a valid notice, as for example, by the mail, or other- 
 wise, on the very day of the dishonor, still he must send 
 
 i Ante, § 290, 291, 295 ; Chitty on Bills, ch. 10, p. 518, 519 (8th edit. 
 1833) ; 3 Kent, Coram. Lect. 44, p. 106, 107 (.4th edit.). As to what 
 constitutes a sufficient notice where the parties reside in different States, 
 see Rhett v. Poe, 2 How. Sup. Ct. R. 460. 
 
 2 Ante, § 286, 298; Chitty on Bills, ch. 10, p. 505 (8th edit. 1833). 
 
 3 AtJte, i 286, 298. 
 * Ante, ^ 287. 
 
 5 Ante, i 291, 292, 294 ; Chitty on Bills, ch. 10, p. 520, 521 (8th edit. 
 1833) ; 3 Kent, Coram. Lect. 44, p. 108, 109 (4th edit.). 
 
 6 Ante, § 294 ; Chitty on Bills, ch. 10, p. 519, 520 (8th edit. 1833) ; 
 Carter v. Burley, 9 New Hamp. R. 556. 
 
 •42 
 
498 BILLS OF EXCHANGE. [CH. XI. 
 
 notice of the dishonor to the other parties, to whom 
 he means to have recourse, by the next day's mail, 
 or the next practicable mail after he has received the 
 notice.^ 
 
 § 385. So, too, in all cases, where notice is req[uired, 
 or is to be given, either by the Holder, or by any other 
 party to the Bill, if he receives that notice upon a Sun- 
 day, or other holyday, he is not bound to attend to it 
 upon that day, for it is not deemed a day of business ; 
 but the case is to be treated, exactly as if it had been 
 received on the next succeeding business day.^ If he 
 receives the notice on the day before Sunday or any 
 other holyday, it will be sufficient to send notice to the 
 other antecedent parties on the Bill, on the day next 
 succeeding the Sunday or other holyday.' The same 
 rule applies to Jews, and other persons, who, according 
 to the rules of their sect, treat particular days as devo- 
 ted to religious services.* 
 
 § 386. In respect to the place, where the notice is to 
 be sent, similar considerations apply, as in cases of non- 
 acceptance. If the party, entitled to notice, has changed 
 his domicil, after he became a party to the Bill, notice 
 hould be sent to his new domicU, if it is known, or i^ 
 by reasonable diligence and inquiry, it can be ascer- 
 tained ; ^ and, if the notice goes by mail, it should be 
 directed and go to the post-office of the town, in which 
 he no\y dwells, or to the post-office (if known), where he 
 
 ' Carter v. Barley, 9 New Hamp. R. 556. 
 
 ^ Ante, ^ 293, and note ; Chitty on Bills, ch. 10, p. 519, 530 (8th edit. 
 1833) ; 3 Kent, Comm. Lect. 44, p. 106, 107 (4th edit.). 
 3 Ante, $ 293, and note. 
 * Ante, ^ 300. 
 5 Ante, § 297. 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 499 
 
 is accustomed to receive his letters, or to the nearest 
 post-office, if there be none in the town.* 
 
 § 387. If the residence, or place of business, of the 
 party, entitled to notice, is unknown, and cannot, by 
 reasonable diligence and inquiry, be found, then the 
 Holder will be excused from giving notice.^ If notice 
 is to be given to a partnership, notice to either of 
 the partners will be sufficient.^ And where both the 
 Drawer and Acceptor are either general partners or spe- 
 cial partners in the adventure of which the Bill consti- 
 tutes a part, notice of the dishonor of the Bill need not 
 be given to the Drawer.* But, if notice is to be given 
 to two joint Drawers or Indorsers, not partners, each of 
 them is entitled to notice.® 
 
 § 388. In respect to the person, by whom notice of 
 the dishonor is to be given, it is sufficient, if it be given 
 by the Holder, or by his agent, or by any person, who 
 is a party to the Bill entitled to reimbursement.® But 
 a , notice, given by a mere stranger, is a nullity. The 
 notary-public, who presents the Bill for payment, and 
 protests it for the non-payment, is sufficiently authorized 
 by his character and employment to give notice, on 
 behalf of the Holder, to any of the other parties on the 
 Bill.'' But neither a notary, nor any other agent, is 
 
 1 Ante, § 289 ; Stuckert v. Anderson, 3 Whart. R. 116 ; Filler v. Mor- 
 ris, 6 Whart. R. 402 ; Weakley v. Bell, 9 Watts, R. 213. 
 3 Ante, § 299. 
 3 Ibid. 
 * Rhett V. Poe, 2 How. Sup. Ct. R. 457. 
 
 5 Ibid. 
 
 6 Ante, § 303, 304 ; Chitty on Bills, ch. 10, p. 525 to 527 (8th edit. 
 1833) ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 419, 420 (5th edit.) ; Miers v. 
 Brown, 11 Mees. & Wels. R. 373. 
 
 '' Bank of Cape Fear v. Seawell, 2 Hawks, R. 560; Bank of Rochester 
 
500 BILLS OP EXCHANGE. [CH. XL 
 
 absolutely bound, at least, so far as the other parties to 
 the Bill are concerned, to give notice, except to his 
 principal, the Holder; and, that done, it will be suffi- 
 cient.^ When the presentment is made by a notary, or 
 other agent of the Holder, he will be treated, as to the 
 other parties to the Bill, as a Holder, so that he will be 
 entitled, like any other Holder, to a whole day, to give 
 notice to his principal of the dishonor ; and notice to 
 the other parties, by the principal, on the next day 
 after the principal himself has received notice, will be 
 sufficient.'' If the Holder is dead, notice of the dishonor 
 should be given by his executor or administrator, if 
 there be any duly appointed.^ If the Holder becomes 
 bankrupt, notice should be given by his assignees, 
 if any be appointed; otherwise, by the bankrupt 
 himself.* 
 
 § 389. As to the persons, to whom notice is to be 
 given. This, of course, includes all the persons, who 
 are parties to the Bill, and are entitled to reimbursement 
 from other parties, upon payment of the Bill.^ If any of 
 those persons are dead, notice should be given to their 
 executors or administrators.® If any of them are bank- 
 rupt, notice should be given to them and to their assign- 
 ees, if any are appointed ; otherwise, to the bankrupts 
 
 V. Gray, 2 Hill, N. Y. Rep. 227. See also Filler v. Morris, 6 Whart. R. 
 402. 
 
 1 Bank of Rochester v. Gray, 3 Hill, N. Y. Rep. 227 ; Bank of U. 
 States V. Davis, 2 Hill, N. Y. Rep. 451. 
 
 3 Ante, ^ 292 ; Chitty on Bills, ch. 10, p. 521, 522 (Slh edit. 1833). 
 
 3 Ante, \ 308 ; Chitty on Bills, ch. 9,'p. 389, 401 (8th edit. 1833). 
 
 4 Ante, \ 305. 
 
 B Ante, § 305 ; Chitty on Bills, ch. 10, p. 528 to 533 (8th edit. 1833) ; 
 1 Bell, Comm. B. 3, ch. 2, ^ 4, p. 420 (5th edit. 1830). 
 6 Ante, ^ 305. 
 
CH. XI.] PROCEEDINGS ON NON-PAYME^IT. 501 
 
 themselves.^ If they are partners, notice to either part- 
 ner is sufficient.^ If they are joint Drawers or Indorsers, 
 and not partners, then notice should be given to both.^ 
 If one partner is dead, notice should be given to the 
 survivor.* But notice to a Guarantor of the non- 
 payment of the Bill does not seem to be indispensable, 
 although it may, in most cases, be highly expedient ; 
 for, if the Guarantor sustains any damage, or loss, or 
 prejudice, by the vpant of notice, he ■will be exonerated, 
 pro tanto, from payment of the Bill.^ 
 
 § 390. As to the form of the notice, the same rule 
 prevails in cases of the non-payment of Bills, as applies 
 to cases of Promissory Notes, and to non-acceptance of 
 Bills; no particular form or language is indispensable.® 
 But it will be sufficient, if, by express terms, or by 
 natural or necessary implication from the language 
 used, it contains, in substance, a true description of the 
 Bill, an assertion of due presentment and dishonor of 
 the Bill, and that the Holder, or other person, looks to 
 the party, to whom the notice is sent, for indemnity and 
 reimbursement.'' [The notarial charges at the bottom 
 
 ' Ibid ; Chitty on Bills, ch. 8, p. 369 (8th edit. 1833) ; Id. ch, 10, p. 
 529, 531. 
 
 2 Ante, § 305 ; Bayley on Bills, ch. 7, § 2, p. 285 (5th edit. 1830) ; 
 Chitty on Bills, ch. 10, p. 531 (8lh edit. 1833). 
 
 3 Ante, § 305; Chitty on Bills, ch. 10, p. 532 (8th edit. 1833) ; Shep- 
 aid V. Hawkey, 1 Connect. R. 368 ; Bank of Chenango v. Root, 4 Cowen, 
 R. 126. 
 
 * Ante, § 305 ; Cayuga County Bank v. Hunt, 2 Hill, N. Y. Rep. 
 635. 
 
 5 Ante, ^ 305, and note ; Chitty on Bills, ch. 10, p. 474, 475, 581 (8th 
 edit. 1833). 
 
 6 Ante, § 301 ; Chitty on Bills, ch. 10, p. 501, 503 (8th edit. 1833) ; 3 
 Kent, Comm. Lect. 44, p. lOS, 109 (4th edit.) 
 
 T Ante, § 301, 303 ; Bayley on Bills, ch. 7, § 2, p. 256 (5th edit. 1830) ; 
 Solarte v. Palmer, 7 Bing. B. 530 ; S. C. on Appeal, 8 Bligh, R. (N. S. ) 
 
502 BILLS OF EXCHANGE. [CH. XI. 
 
 of the notice, as for " noting 5s." have been construed to 
 imply that there has been one presentment of the Bill 
 
 874 ; 1 Bing. New Cas. 194 ; Ransom v. Mark, 2 Hill, N. Y. Rep. 587 ; 
 Mills V. Bank of United States, 11 Wheat. R. 431; Shed v. Brett, 1 
 Pick. R. 401 ; Sanger v. Stimpson, 8 Mass. R. 260 ; Bank of United States 
 V. Carneal, 3 Peters, R. 543 ; Reedy v. Seixas, 2 John. Cas. 337 ; Smith v. 
 Whiting, 13 Mass. R. 6 ; Bank of Cape Fear v. Seawell, 2 Hawkes, R. 
 560 ; Saltmaish v. Tuthill, 13 Alabama R. 390 ; Chitty on Bills, ch. 10, p. 
 501 (Sth edit. 1833) ; Furze v. Sharwood,2 Gale & David. R. 116; Robson 
 V. Curlewis, 1 Carr. & Marsh. R. 378; S. C. 2 Adolph. & Ell. New R. 421 ; 
 Gilbert v. Dennis, 3 Mete. R. 495 ; King v. Bickley, 2 Gale & David. R. 
 131j S. C. 2 Adolph. & Ell. New R. 419 ; Boulton v. Welsh, 3 Bing. New 
 Cas. 688 ; Furze v. Sherwood, 2 Adolph. & Ell. New R. 388 ; S. C. 2 Gale 
 & David. R. 116. In this last case Lord Denman,in delivering theopinion 
 of the Court, reviewed the principal authorities, (which are certainly not 
 easily reconcilable) ; and said, " Lord Mansfield, after observing, in the 
 case of Tindal v. Browne (1 T. R. 167), that certainty is of the highest im- 
 portance in mercantile transactions, proceeded to settle the question there 
 raised, whether the notice of dishonor was in point of law too late. The 
 whole Court affirmed that proposition, and more than once set aside a 
 verdict founded on the opposite assumption. Nothing mote was required 
 for the decision. But Mr. Justice Willes took a second objection ; and 
 Mr. Justice Ashhurst a third. 'Notice' (said his Lordship), (Judgment 
 of Ashurst, J.), 'means something more than knowledge; because it i^ 
 competent to the Holder to give credit to the Maker. It is not enough to 
 say that the Maker does not intend to pay, but ' (it ought to be farther 
 said) ' that he (the Holder) does not intend to give credit. In the present 
 case there is no notice ; for the party ought to know whether the 
 Holder intends to give credit to the Maker, or whether he intends 
 to resort to the Indorser.' This is repeated with great approbation 
 by Buller, J., (and see Esdaile v. Sowerby, 11 East, R. 114.) Near 
 forty years after, the sufficiency of notice of dishonor was canvassed in 
 an action between Hartley v. Case (4 B. & C. 339), decided by Lord 
 Tenterden at Nisi Prius. It ran thus; 'I am desired to apply to you 
 for the payment of the sum of 150^ due to myself on a draft drawn by 
 Mr. Case on Mr. Case, which I hope you will on receipt discharge, to 
 prevent the necessity of law proceedings, which otherwise will immedi- 
 ately take place.' The report says, 'The Lord Chief Justice was of 
 opinion that as this letter did not apprize the party of the fact of dishonor 
 but contained a mere demand of payment, it was not sufficient, and the 
 plaintiff was nonsuited.' After argument on a rule for setting aside the 
 nonsuit, his Lordship said, 'There is no precise form of words necessary 
 
CH. XI.] PROCEEDmaS ON NON-PArMENT. 503 
 
 to the Acceptor, and a refusal to pay.-^ So the term 
 "protested," in a notice that a Bill had been "protested 
 
 to be used in giving notice of dishonor, but the language used must be 
 such as to convey notice to the party what the bill is, and that payment 
 of it has been refused by the Acceptor. Here the letter in question did 
 not convey to the defendant any such notice ; it does not even say that 
 the Bill was ever accepted. We therefore think the notice was insuffi- 
 cient.' The short judgment in which the whole Court concurred, com- 
 prising Bayley, Holroyd, and Littledale, Js., is perfectly correct in its 
 statement of the fact and the law, and has the merit of adhering closely 
 to the point raised in argument. It has never been questioned by any 
 judicial authority. The same learned Chief Justice was afterwards 
 called upon to decide on the sufficiency of the following notice ; ' A bill 
 for 683/., drawn by ' A. upon B. C. ' and bearing your indorsement, has 
 been put into our hands by the assignees of Mr. J. R. de Alzedo, with 
 directions to take legal measures for the recovery thereof, unless imme- 
 diately paid to, gentlemen, your very obedient servants, J. and S. P.' 
 Here was no statement of the dishonor, the presentment, or the accept- 
 ance. If any notice of the dishonor as a distinct fact is necessary, this 
 document is plainly worthless. It was so holden by Lord Tentetden ; 
 but, from the magnitude of the sum and the importance of the question, 
 his Lordship suggested that a bill of exceptions might be tendered. This 
 was done, and the case (Solarte v. Palmer, 1 Cro. & Jac. 417; S. C. 
 1 Tyrwh. 371 ; 7 Bing. K. 530) brought by writ of error into the Ex- 
 chequer Chamber, when, as might have been expected, the Lord Chief 
 Justice delivered a unanimous judgment, that Lord Tenterden's direction 
 to the Jury was right, and the notice insufficient. It was, however, 
 thought right to bring the matter before the House of Lords, where the 
 late Mr. Justice Park delivered the opinion of all the Judges present 
 (nine in number) to the same effect. Thus, without one dissentient 
 voice, the Judges of all the Courts on these different occasions concurred 
 with Lord Tenterden in holding express notice of the fact of dishonor to 
 be necessary ; the only point on which he had given an opinion. This 
 was the celebrated case of Solarte v. Palmer, (8 Bligh, N. S. 874 ; S. C. 
 1 New Ca. 194.) The Lord Chief Justice in the Exchequer Chamber laid 
 down this rule, that, ' The notice of dishonor ' ' should at least inform the 
 party to whom it is addressed, either in express terms or by necessary im- 
 plication, that the Bill has been dishonored, and that the holder looks to 
 him for payment of the amount.' Park, J., when delivering the Judges' 
 opinion to the Lords, omits the latter clause, and merely says that ' such 
 a notice ought, in express terms, or by necessary implication, to convey 
 
 1 Armstrong v. Christiani, 5 Manning, Granger & Scott, E. 687. 
 
504 BILLS OP EXCHANGE. [CH. XL 
 
 for non-payment," has been held to imply that payment 
 had been demanded and refused.^] A copy of the pro- 
 
 full information that the Bill had been dishonored.' This decision, there- 
 fore, did not turn upon or require any allusion to the doctrine of Ash- 
 hurst and Buller, Js., in Tindal v. Brown, (1 T. R. 167,) on the necessity 
 of staling that the Holder looks to the party addressed, and does not give 
 credit to any other person. But much controversy has arisen on the 
 branch of the notice, as to which the Lord Chief Justice and Park, J., 
 agree, requiring notice of dishonor in express terms, or by necessary im- 
 plication ; and hence the task of examining all the decisions is imposed 
 upon us. In Grugeon v. Smith, (6 A. & E. 499,) this Court held the dis- 
 honor of a Bill to be sufficiently notified by the phrase ' the Bill is this day 
 returned vrith charges.' A few days after, but without being awaije of 
 this decision, the Court of Common Pleas, in Boulton o. Welsh, (3 New 
 Ca. 688,) held the notice insufficient where it said ' the promissory note' 
 ' became due yesterday, and is returned to me unpaid ; ' the Lord Chief 
 Justice there observing that he did not see how it was 'possible to escape 
 from thd rule established by the two decided cases, without resorting to 
 such subtle distinctions as would make the rule itself useless in practice. 
 The rule requires that, either expi:essly or by necessary inference, the 
 notice shall disclose that the Bill or note has been dishonored.' Upon 
 which we will merely observe, .in passing, that there is no necessary dif- 
 ference of opinion between the two courts, as Parke, B., supposed in 
 Hedger v. Steavenson, (2 IM. & W. 799.) The Common Pleas might 
 have held, that ' returned with charges' did necessarily imply present- 
 ment and dishonor. And it does not follow for anything we said that 
 we might "not have thought ' returned to me unpaid ' insufficient. But the 
 case of Hedger v. Steavenson, (2 M. & W. 799,) brought the Court of 
 Exchequer into direct collision with the Common Pleas, not indeed on the 
 sufficiency of the notice (for it was not identical in the two cases,) but on 
 the principle of deciding. The note, &c., 'is returned unpaid,'" was the 
 form which the Common Pleas held wrong. The same form, with the 
 addition of \s. 6d. for noting, the Exchequer held right; and Parke, B., 
 (2 M. & W. 805,) while submitting to the authority of Solarte v. Palmer, 
 (In Exch. Ch. 7 Bing. 530 ; 2 Cro. & J. 417 ; 1 Tyrwh. 371. In Dom. 
 Proo. 8 Bligh, N. S. 874 ; 1 New Ca. 194) excepts to the reasons given 
 for the judgment, and the language in which they are couched, and doubts 
 whether he could go so far as to say, that ' it ought to appear upon the 
 
 1 Spies V. Newberry, 2 Douglas, Michigan R. 425; Smith v. Little, 10 
 N. Hamp. R. 520 ; Ontario Bank v. Petrie, 3 Wend. R. 456. See Piatt 
 V. Drake, 1 Douglas, Mich. R. 296. 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. . 505 
 
 test need not, although it is often sent, accompany the 
 notice of the dishonor ; and it will be sufficient, if it is 
 
 face of the instrument " by express terms or necessary implication, that 
 the bill was presented and dishonored ; " ' thinking it ' enough if it appear 
 by reasonable intendment, and would be inferred by any man of business, 
 that the bill has been presented to the Acceptor, and not paid by him.' 
 He remarks, however, that, even if the rule were properly laid down in 
 those words, it ought to receive a more liberal construction than the Com- 
 mon Pleas appeared to have adopted, in which sentiment Barons Bolland 
 and Alderson agreed, having been two of the Judges consulted by the 
 Lords when Park, J. promulged their opinion there. The next case in 
 order of time is Houlditch ii- Cauty, (4 New Ca. 411.) There the general 
 doctrine was discussed ; and the Lord Chief Justice declared his adherence 
 to Boulton V. Welsh, (3 New Ca. 688,) but distinguished the case then 
 before him. The sufficiency of the written notice was not directly in 
 question ; for it had been followed by a verbal communication between the 
 plaintiff and defendant. Strange D.Price (10 A. & E. 125) followed. 
 This Court there held it insufficient to ' inform Mr.. James Price ' ' that Mr. 
 John Betterton's acceptance 87Z. 5s. is not paid.' A fortiori, the Common 
 Pleas would have agreed with us. I do not believe that the Exchequer 
 would have differed. In Easter term, 1840, doubts springing from the 
 . same fruitful source were stirred in the Court of Common Pleas (Messen- 
 ger V. Southey, 1 M. & G. 76,) and the Exchequer, (Lewis v. Gonipertz, 
 6 M. & W. 399) ; the former condemning, the latter supporting, the notice 
 in those'respective cases ; but the forms were so entirely different that the 
 judgments given might have been consistently formed by either Court. 
 But Messenger v. Southey (1 M. & C 76) shows a great relaxation of 
 the rigor of the rule laid down in the Exchequer Chamber and House of 
 Lords, on the part of the Lord Chief Justice, who admits that Grugeon v. 
 Smith (6 A. & E. 499,) might have been well decided by force of the 
 words ' returned with charges,' and possibly Hedger v. Steavenson (2 M. 
 & W. 799,) also, because the notice declared the Bill to have been ' re- 
 turned unpaid.' But these are the very words whiclk were held insuffi- 
 cient under the operation of the rule in Boulton v. Welsh, (3 New Ca. 
 688,) a case decided by the Common Pleas, reluctantly, from deference to 
 what was decided in Solarte v. Palmer, (In Exch. Ch. 7 Bing. 530 ; 1 
 Cro. & Jac. 417 ; 1 Tyrwh. 371. In Dora. Proc. 8 Bligh, N. S. 874 ; 1 
 New Ca. 194,) and which can hardly be now deemed a satisfactory au- 
 thority. Upon the whole, it is to be feared that none of the rules for con- 
 struing this branch of the instrument designed to be a notice of dishonor 
 will be found capable of very general application. The advantage of clear 
 and certain rulfes, where it can be secured, is indeed inestimable. Perhaps 
 
 B. OF EX. 43 
 
506 ^ BILLS OF EXCHANGE. [CH. XI. 
 
 proved to have been made, and is produced, if the dis- 
 honor is controverted.^ 
 
 Lord Mansfield never conferred so great a benefit on the commercial world 
 as by his decision of Tindal v. Brown (1 T. R. 167,) where his perse- 
 verance compelled them, in spite of themselves, to submit to the doctrine 
 of requiring immediate notice as a matter of law. But in the matter in 
 hand we can scarcely hope to attain such a rule. For, if we ate to refer 
 the question to a reasonable intendment, and what a man of business 
 would naturally conclude from the words, we can hardly decide it 
 without the intervention of a Jury, whose opinions will naturally vary 
 with the circumstances of each case ; and, if, on the other hand, the 
 Court must decide on examination of the document according to legal 
 and grammatical rules of interpretation, we shall frequently give it a 
 sense in which neither party could ever have understood it. If we 
 adopt the middle course, requiring at least a necessary implication, but 
 qualifying these words by Lord Eldon's comment in Wilkinson v. Adam, 
 (1 Ves. & B. 422, 466, cited by Parke, B., in Hedger v. Steavenson, 2 M. 
 & W. 805,) we have just seen that (if the reports be accurate) the same 
 eminent Judge who gave them one sense in Boulton v. Welsh, (3 New 
 Ca. 688,) may admit them to be susceptible of a sense directly opposite 
 in Hedger v. Steavenson (2 M. & W. 799.) This rule, however, was 
 recommended by great aiithority, twice asserted by the Court of Exche- 
 quer, not repudiated by the Court of Common Pleas. Perhaps it goes no 
 farther than to require that the Court must see that, by some words or 
 other, notice of dishonor has been given. We have entirely excluded the 
 supposition that the mere fact of making a communication respecting the 
 non- payment of the Bill at the proper season can extend the meaning of 
 the words conveying notice of dishonor. This exists in almost every 
 case ; and, as one can hardly conjecture any other motive for giving the 
 information, so the parly addressed can hardly fail to infer that it is given 
 in order to fix him with liability. Yet no one disputes that the fact must 
 be stated, the notice of dishonor plainly given. But, if this be done, we 
 may now inquire, w^ere is the authority establishing the position, of Ash- 
 hurst and Buller, Js. (unnecessary for the case before them,) that the 
 notice must also tell the party addressed that he looks to him for pay- 
 ment! If not, why send the notice? True; he may have some other 
 reason for informing the party addressed of the dishonor, while looking 
 elsewhere for his money. But, unless he tells him this, the receiver of 
 such a notice cannot but be certain that the sender means to call upon 
 
 1 Ante, § 302 ; Chitty on Bills, ch. 10, p. 498, 499 (8th ejlit. 1833) ; 
 Piatt V. Drake, 1 Douglas, Michigan, R. S96. 
 
CH. XI.] PROCEEPINGS ON NON-PAYMENT. 507 
 
 § 391. It may be proper here, also, to repeat the re- 
 mark already made, that the law of the place, where 
 the Bill is drawn, regulates the right, and time, and 
 mode, and place of notice to be given to. the Drawer; 
 and, that the law of the place, where any indorsement 
 has been made, in like manner, regulates the right, and 
 time, and mode, and place of the notice to be given to 
 such Indorser.^ This proceeds upon the general princi- 
 ple, that the obligation, character, extent, and conditions 
 of every contract are to be governed by the law of the 
 
 him for payment. The protest, for which notice was substituted, has no 
 such clause, but begins and ends with the history of the dishonored Bill, 
 including the protest itself. Where notice has been given by another 
 party than the holder, there may be good sense in requiring that it shall 
 be accompanied by a direct demand of payment, or a statement that it will 
 be required of the party addressed ; but in no case has the absence of 
 such information been held to vitiate a notice in other respects complete, 
 and which has come directly from the holder. Nothing now remains but 
 to declare our opinion on the several forms of notice set forth in the spe- 
 cial verdict. And the second, of July 11th (count 6, and plea 15) ; 
 the third, July 20th (count 9, and plea 24) ; the fourth, July 13th (count 
 11, and plea 31) ; the fifth, September 11th (count 13, and plea 35) ; 
 the sixth, September 25th (count 13, and plea 44) ; and the eighth, Sep- 
 tember 25th (count 13, and plea 38) ; we think bad, because they contain 
 no notice of dishonor according to any of the decisions, or within any of 
 the rules. Consistently with all that is set forth, the plaintiff, either from 
 ignorance or inadvertence, or because he may really have loolced to another, 
 may have abstained altogether from presenting any one of these Bills. 
 But this amount reduces the plaintiff's claim below the defendants' set-off. 
 Our judgment must then be for the latter, even on the supposition that it 
 would be against them on all the important general points that have been 
 raised." King v. BicUley, 2 Adolph. & Ell. New R. 419 ; Miers v. 
 Brown, 11 Mees. & Welsh. 372; Stockman v. Parr, 11 Mees.,.& Welsh. 
 309; Bradley «. Davis, 13 Shepley, R. 45; Clark v. Eldridge, 13 Met- 
 calf, 96 ; Wheaton v. Wilmarth, Ibid. 422 ; Chapman v. British Guiana 
 Bank, 6 Moore, Cases before ' Privy Council, 26 ; Caunt v. Thompson, 
 7 Manning, Gr. & Scott, R. 400. 
 
 ' Ante, § 157, 176, 177, and note, 285, 296, 366 ; Pardessus, Droit 
 Comm. Tom. 5, art. 1497. 
 
508' BILLS OP EXCHANGE. [CH. XI. 
 
 place, where it is entered into, and is to be executed.^ 
 And, in cases of Bills the Drawer engages to pay upon 
 due presentment, and due protest and notice of the dis- 
 honor of a Bill, according to the law of the place, 
 where he draws it ; and the Indorser, in like manner, 
 according to the law of the place, where he indorses the 
 Bill.- 
 
 § 392. And here the circumstances, which will or 
 will not excuse the neglect to make a due protest, and 
 giving due notice thereof to the parties, entitled to 
 notice, of the dishonor and non-payment of the Bill, 
 would naturally come under our review. But they are, 
 in general, the same as will ordinarily excuse or not 
 excuse the want of due presentment of the Bill for 
 acceptance or for non-payment; and, therefore, it is 
 sufficient, to refer to those heads in the preceding pages, 
 for complete information on the subject.^ To the cases 
 already stated, however, it may be added, that no notice 
 whatsoever is necessary to be given to a Drawer, at 
 whose house the Bill is payable ; for it affords presump- 
 tive proof, that the Bill has been drawn and accepted 
 for his sole accommodation, and that he is to provide 
 funds for its due payment at its maturity. This pre- 
 sumption, however, may be repelled by proof, that the 
 
 1 Ante, ^ 157, 176, 177, and note, 285, 296, 366 ; Pardessus, Droit 
 Comm. Tom. 5, ait. 1497. 
 
 2 Ibid. — This subject was fully discussed in the note to Ante, § 176, 
 177. The- case of Rothschild v. Currie (1 Adolph. & Ellis, New Rep 
 43) is, however, to the contrary. See Pardessus, Droit Comm. Tom. 5, 
 art. 1498. 
 
 S Ante, ^ 257, 279, 281, 307 to 320, 326 ; Chitty on Bills, ch. 10, 
 p. 524, 533 to 541 (8lh edit. 1833) ; 1 Bell, Comm. B. 3, ch. 2, § 4, 
 p. 421 to 424, 427 to 431 (5th edit.) ; 3 Kent, Comm. Lect. 4'4, p. 110 to 
 114 (4th edit.) 
 
CH. XI.J PROCEEDINGS ON NON-PATMENT. 509 
 
 Drawee really had effects in the hands of the Acceptor, 
 and that it was to be paid by the latter.^ Nor is notice 
 necessary to the Drawer or Indorser of a Bill, of its 
 non-payment, if he is one of the firm, which accepted the 
 Bill ; * for the law imputes to him a full notice of the dis- 
 honor, from his relation to the firm.® 
 
 § 393. In cases of the guaranty of Bills of Exchange, 
 and in cases where Bills of Exchange are taken by the 
 Holder as collateral security for another debt, the same 
 principles apply as to his duty to make due protest, 
 and to give due notice of the dishonor thereof to the 
 Drawer and Indorsers thereof, in order to bind them, 
 as apply to the ordinary cases of Bills possessed by the 
 Holder, as owner, solely on his own account, and for 
 their full value. But between the Holder himself and 
 the Gruarantor of a Bill, and also between the Holder 
 himself and the party from whom he receives a Bill as 
 collateral security, the effect of an omission to make 
 due protest or give due notice, is very (different from the 
 effect of the omission between the Drawer and Indorsers 
 and himself. In the latter case the Drawer and Indor- 
 sers are ordinarily discharged from all liability to pay 
 the same. But in the former cases the Guarantor, and 
 the giver of the collateral security, are not discharged 
 by the emission, unless they have sustained some loss or 
 
 1 Ante, § 370 ; Chitty on Bills, ch. 5, p. 174 (8th edit. 1833) ; Id. ch, 
 10, p, 469, 470 ; Sharp v. Bailey, 9 Barn. & Cressw. 44. 
 
 2 Ante, § 305, note ; Gowan v. Jackson, 20 Johns. R. 176. 
 
 3 Chitty on Bills, ch. 10, p. 531 (8th edit. 1833) ; Porthouseu. Parker, 
 1 Camp. R. 82 ; Alderson ti. Pope. 1 Camp. R. 484. See also Jacaud v. 
 French, 12 East, R. 317, 322, 323 ; Blgnold v. Waterhouse, 1 Maule & 
 Selw. 259 ; Bayley on Bills, ch. 7, § 2, p. 285 (5th edit. 1830.) As to 
 notice to an Indorser or Guarantor, see Rhett v. Poe, 2 How. Sup. Ct. R, 
 457. 
 
 43* 
 
510 
 
 BILLS OF EXCHANGE. [CH. XI. 
 
 damage thereby, and then only pro tanto to the extent 
 of the loss or damage.' The French Law (as we have 
 seen®), in cases of guaranty, requires the protest and 
 notice of the dishonor to be g^ven to the parties, who 
 guaranty Bills, in the same manner, and within the 
 same time, as they are required in cases of Drawers and 
 Indorsers of such Bills.^ And in each class of cases the 
 same consequences follow from the neglect of due protest 
 and notice, that the parties entitled thereto are not dis- 
 charged thereby, unless they have sustained some injury 
 or prejudice, and then only pro tanto^ The general pro- 
 visions of that law may deserve, therefore, to be stated 
 at large. 
 
 § 394. By the old law of France, the Holder was 
 allowed fifteen days to give notice to the Drawer or 
 the Indorsers of the dishonor of the Bill by non-pay- 
 ment ; and he was bound to pursue them in guaranty 
 within that time, if they lived within the distance of five 
 leagues; and, if they lived beyond it, then he was 
 allowed two months to give notice to the parties resi- 
 dent in England, Flanders, and Holland, three months 
 to the parties in Italy, Germany, and the Swiss Cantons, 
 four months to the parties in Spain, and six months in 
 Portugal, Sweden, and Denmark.^ The language of the 
 Article, that the Drawer and the Indorsers shall be pur- 
 
 1 Ante, § 305, and note, ^ 372 ; Post, § 478, and note. 
 
 2 Ante, \ 322, 372; Post, § 394, 395, 478 ; I Bell, Coram. B. 3, ch.2, 
 §4, p. 425, 426 (5th edit.) 
 
 3 Ante, ^ 322, 333, note, 372 ; Post, § 478 ; Code de Coram, art. 142, 
 160 to 172. See also Savary, Le Parfait N6gociant, Tora. 1; Pt. 3, Liv. 
 1, cb. 14, ^ 14 to 28, p. 849, 850. 
 
 4 Ante,.§ 306, 372, 478, and note; Pothier de Change, n. 156, 157. 
 
 5 Jousse, sur I'Ord. of 1673, art. 13, p. 105 ; Pothier de Change, n. 
 148, 152. 
 
CH. XI.] PKOCEEDINQS ON NON-PAYMENT. 511 
 
 sued in guaranty (seront poursuivis en garantie), would 
 seem to import, that it should be by a judicial proceed- 
 ing, and that only. But Pothier informs us, that a 
 different construction was put upon the Article by the 
 usage of merchants ; and it was held, that, although the 
 Holder might proceed by a judicial act, yet it was suffi- 
 cient to protest the Bill, (which was deemed to be the 
 commencement of a pursuit in guaranty,) and to give 
 notice of the dishonor, in writing, within the proper pe- 
 riod, to the Drawer and Indorsers.^ And the like course, 
 as to notice, was to be followed by any Indorser, who had 
 received notice, in respect to the antecedent Indorsers 
 and the Drawer, within the like periods.^ The modern 
 Code of Commerce has adopted regulations of a similar 
 nature, varying, however, somewhat as to the periods 
 of notice ; but, in substance, embracing similar princi- 
 ples.^ The same law (as we have just seen) applies to 
 
 1 Pothier de Change, n. 148 to 151. 
 
 2 Pothier de Change, n. 153. 
 
 3 Code de Comm. art. 164 to 168 ; Sautayra, sur Code de Comm. art. 
 164 to 168, p. Ill to 113 ; Pardessus, Droit Comm. Tom. 3, art. 429 to 
 437. — These articles are as follows : "The Holder of a Bill of ExchangS 
 protested for non-payment, may pursue his remedies against the sureties, 
 either individually against the Drawer and each of the Indorsers, or jointly 
 against the Indorsers and Drawer. The same right exists for each of the 
 Indorsers, in regard to the Drawer, and all the preceding Indorsers. If 
 the Holder would pursue his remedy individually against his immediate 
 Indorser, or the Drawer, in case the Bill came directly from him, he must 
 give him notice of the protest, and, in default of reimbursement, commence 
 his suit against him within fifteen days from the date of the protest, if the 
 said Indorser or Drawer reside within the distance of five myriameters 
 (ten leagues, equal to about twenty-five miles.) This period of delay 
 with respect to the Indorser or Drawer, domiciled at a greater distance 
 than five myriameters from the place where the Bill of Exchange was 
 payable, shall be increased one day for every two and a half myriameters 
 exceeding the five before mentioned. In case of the protest of Bills of 
 Exchange drawn in France, and payable out of the continental territory of 
 
512 BILLS OF EXCHANGE. [CH. XL 
 
 Guarantors of Bills, who, upon the face of the Bill, and 
 ordinarily, make themselves liable, and sign a declara- 
 tion of guaranty, at the foot or bottom of the Bill, which 
 is called, upon that account, Garantie par un aval} 
 
 § 395. The same usage, as to guaranty of Bills, 
 exists in other parts of the continent of Europe, under 
 the same name ; and it may be by a writing, either 
 at the foot or bottom of the Bill, sr on a separate 
 paper ; the obligations of which, however, are somewhat 
 different ; for, when the guaranty is at the foot of the 
 Bill, the Holder is entitled, against the Guarantor, to 
 
 France in Europe, the remedy against the Drawers and Indorsers residing 
 in France must be pursued within the following periods, to wit : Two 
 months for Bills payable in Corsica, in the island of Elba, or of Capraja, 
 in England, and in the countries bordering on France. Four months for 
 those payable in the other Slates of Europe. Six months for those pay- 
 able in the ports of the Levant, and on the northern coasts of Africa. A 
 year for those payable on the western coasts of Africa^ as far as, and in- 
 cluding the Cape of Good Hope, and in the West Indies. Two years for 
 those payable in the East Indies. These periods of delay are allowed in 
 the same proportions for pursuing the remedy against the Drawers and 
 Indorsers residing in the French possessions situated out of Europe. The 
 above-mentioned delays of six months, a year, and two years, are allowed 
 to be doubled in time of maritime war. If the Holder pursue his remedy 
 against the Indorsers and the Drawer jointly, he is allowed, with respect 
 to each of them, the period of delay determined by the preceding articles. 
 Each of the Indorsers has the right of pursuing the same remedy, either 
 individually or jointly, within the same periods of delay. In respect to 
 them, the time allowed begins to run from the day after the service of 
 judicial citation. After the expiration of the above-mentioned periods of 
 delay for the presentment of a Bill of Exchange at sight, or at one or 
 more days, or months, or usances, after sight, for the protest for non- 
 payment, for the action against the sureties, the Holder of a Bill of Ex- 
 change is barred of all rights against the Indorsers." Code de Comm. 
 art 164 to 168. See also Chitty oa Bills, ch. 10, p. 507, 508 (8th edit. 
 1833) ; Ante, § 296. 
 
 1 See Ante, § 372, 393 ; Post, ^ 455 to 459 ; Pardessus, Droit Comm. 
 Tom. 2, art. 394 to 398 ; Pothier de Change, n. 50 ; Savary, Le Parfait 
 N6gociant, Tom. 1, Pt. 3, Liv. l,ch. 14, § 1, 30, 31, 38, p. 847, 851, 853. 
 
CH. XI.] PE0CEEDIN68 ON NON-PAYMENT. \ 513 
 
 the same right to the summary remedy on Bills, or 
 Processus CamUalis, which Holders have jure cambiali- 
 But, if written on a separate paper, then the Holder is 
 entitled only to the common action upon a contract 
 against the Guarantor.' Heineccius, on this subject 
 says : " Sunt at fidejussiones qucedam, cambiis quodam 
 modo similes, et quae plerumque camhio, tamquam ohiigationi 
 principali, accedunt. Id tero fit dupUciter. Aut enim quis 
 fidejulet separatim, tradito instrumento fidejussionis, et iune 
 juri cambiali adversus fidefussorem non est locus ; aut in 
 ipsis Utteris camUalibus fidejussia latitai, et tunc fidejussor 
 convenitur processu cambiali. Vocari hcec fidejussio solet 
 Avallum, idque fit sola subscriptione litterarum cambialium, 
 db uno cohscriptarum ; tunc enim primus est debitor ; reli- 
 quipro fidejussoribus habenlur. MuUum ergo interest inter 
 avallum, et obligationem correalem, quae pottissimum in camr 
 Mis propriis locum hahd, quaque tenentur, qui se in solidum 
 in cambio obligarwni. Fidejussor enim, si debitor princi- 
 palis solvendo est, tanium in su^isidium ; Correus in solidum 
 principaliter tenetur, sive alter Correus solvendo sit, sive non 
 sit, quamvis uno solvente alter liberetur. Si singulari in- 
 strumento quis fidejusset, is tantum ex jure communi tenetur ■ 
 adeoque ordinario tantum processui locus est. Sin in ipso 
 cambio facta est fidejussio, is, qui avallo se obstrinxit, jure 
 camMali conveniri potest. Perinde vero est, sive quis pro 
 trassartte, sive pro remittente, sive pro indossante, sive pro 
 acceptaitte, denique fidejubeat. Omnibus enim obligationibus 
 fidejussionem securitatis caussa aecedere posse, ex ipso jure 
 communi satis notum est. Quoties pro indossante fit fide- 
 jussio, opus tanium est subscriptione jidejussoris, adeoque et 
 tunc fit Avallum? 
 
 1 Post, § 455 to 459. 
 
 2 Heinecc. de Camb. cap. 3, § 26 to 29 ; Id. cap. 6, ^ 10. 
 
514 BILLS OP EXCHANGE. [CH. XI. 
 
 § 396. Hitherto we Mve spoken of cases where there 
 has been an acceptance and non-payjtient by the original 
 Drawee of the Bill. But, in cases, where there has been 
 an acceptance supra protest, \h& like demand of payment 
 must be made of the original Drawee at the maturity 
 of the Bill, and the like protest and notice of the dis- 
 honor, by non-payment, be given to the Acceptor supra 
 protest, in like manner, and under the like circum- 
 stances, as they are by law required to be given to the 
 Drawer or Indorsers ; otherwise the Acceptor, supra 
 protest, will be discharged.' And, where, upon such 
 protest and notice, the Acceptor supra protest pays the 
 Bill, he should, according to the custom of merchants, 
 declare, before a notary, that he does so pay it, supra 
 protest ; and he should give notice accordingly, to those 
 parties on the Bill, for whose honor he accepted it.^ In 
 such a case, the Acceptor supra protest will be entitled 
 to recourse to, and reimbursement from, the particular 
 parties for whom he has accepted and paid the Bill,' 
 If the Acceptor supra protest refuses to pay the Bill, 
 then the Holder should cause it again to be protested 
 for such non-payment, and due notice thereof given to 
 the parties interested, as in other cases.* In general, 
 the French and the foreign law agree with ours in these 
 particulars, as to the proceedings of the Holder and the 
 
 1 Ante, ^ 123 to 126, 255, 261, 363 ; Chitty on Bills, ch. 8, p. 381, 382 
 (8th edit. 1833) ; Id. ch. 10, p. 542 to 544 ; Williams v. Germaine, 7 
 Barn. & Cressw. 468; Hoare «. Cazenove, 16 East, R. 391 ; 1 Bell, 
 Comra. B. 3, ch. 2, ^ 4, p. 424, 425 (5th edit.) 
 
 2 Chitty on Bills, ch. 8, p. 382 (8th edit. 1833) ; Id. ch. 10, p. 342 to 
 344 ; Ante, § 124, 256, 257, 261 ; 1 Bell, Comm. B. 3, ch. 2, ^ 4, p. 424, 
 425 (5th edit.) ^ 
 
 8 Ante, § 124, 135 ; Paidessus, Droit Comm. Tom. 2, art. 441. 
 4 Ibid. 
 
CH. XI.] PKOCEEDINGS ON NON-PAYMENT. 515 
 
 Acceptor, in cases of accepiance supra protest} But 
 Pothier thinks a proiest by the Acceptor supra protest, 
 upon payment of the Bill, is unnecessary and use- 
 less.^ 
 
 § 397. Having thus considered the duties of the 
 Holder upon the presentment of a Bill for payment, 
 and the dishonor thereof by non-payment by the Ac- 
 ceptor, and also by the Acceptor supra protest, let us 
 now consider the rights of the Holder, supposing that 
 he has entitled himself, by a due course of proceedings, 
 to a recourse against the otber parties to the Bill. The 
 Holder, under such circumstances, is entitled, by our 
 law, to a fall reimbursement and recompense of all the 
 damages sustained by him by reason of the dishonor, 
 against all the other parties to the Bill, according to 
 their respective liabilities as Acceptors, or Drawers, or 
 Indorsers, or Guarantors, of the' Bill.' We say, accord- 
 ing to their respective liabilities, which is, of course (as 
 we have seen,) to be ascertained by the law of the 
 place, or country, where their respective contracts are 
 made, and by which they are to be expounded and 
 governed.^ The Acceptor is liable, according to the 
 law of the place or country of acceptance ; the Drawer, 
 according to that of the place or country where the Bill 
 is drawn ; the Indorsers and Guarantors by the law of 
 the place or country where the indorsements or guaran- 
 
 i Pothier de Change, n. 113, 114, 170, 171 ; Jousse, sur I'Ord. 1673, 
 art. 3, p. 73 to 75 ; Codede Coram, art. 126 to 128, 158, 159 ; Pardessn^, 
 Droit Coram. Tom. 2, art. 405 to 408 j Heinecc. de Camb. cap. 6, § 9, and 
 note. 
 
 ^ Pothier de Change, n. 114. 
 
 3 3 Kent, Coram. Lect. 44, p. 115, 116 (4th edit.) 
 
 * Ante, § 164, 176, 177, and note, 285, 321, 391 ; Chitty on Bills, Part 
 2, ch. 6, p. 661 (8th edit. 1833.) 
 
516 BILLS OF EXCHANGE. [CH. XL 
 
 ties, respectively, were ma^e or entered into.' So that 
 the parties do not, in all cases, inQur the same, or an ■ 
 equal responsibilty ; for the Drawer and Indorsers of 
 foreign Bills are ordinary liable for damages, to a far 
 greater extent than the Acceptor. 
 
 § 398. In respect to the Acceptor, he is not, upon 
 non-payment of the Bill, ordinarily liable to the Holder 
 for anything more than the principal sum, and the 
 expenses of the protest, and interest thereon from the 
 time of the maturity of the Bill, and not liable for 
 reexchange.® But, if the Acceptor has expressly or 
 impliedly agreed, with the Drawer, or with any In- 
 dorser, for a valuable consideration, to pay the Bill at 
 its maturity, and has failed so to do, and the Drawer 
 or Indorser has been compelled to take up the Bill, 
 and pay damages, and other expenses necessarily in- 
 curred thereby, he may, perhaps, be compellable fully 
 to indemnify the Drawer or Indorser for all the damages 
 and expenses, so paid by him on account of the breach 
 of his contract.^ 
 
 1 Ibid. 
 
 2 Chitty on Bills, part 2, ch. 6, p. 661 to 666, 668, 669 (8th edit. 1833); 
 Woolsley v. De Crawford, 2 Camp. R. 445 ; Napier v. Schneider, 12 
 East, R. 420 ; Bowen v. Stoddard, 10 Mete. R. 375 ; Bain v. Ackworth, 1 
 Eep. Con. Ct. (S. C. 107. But Mr. Bayley thinks he ought to be held 
 liable, where he has effects. Bayley on Bills, ch. 9, p. 353, and note (5th 
 edit. 1830) ; Id. ch. 10, p. 456, note 85 ; 1 Bell, Coram. B. 3, ch. 2, § 4, 
 p. 407 (5lh edit.) 
 
 3 Riggs V. Lindsay, 7 Cranch, R. 500. Mr. Bayley uses language 
 upon this point, which shows that, under such circumstances, he thought 
 the Acceptor bound to pay the reexchange. He says : "It has been said, 
 that the Acceptor is not liable for reexchange, and that his contract cannot 
 be carried further than to pay the sum specified in the Bill, together with 
 legal interest, where interest is due ; but, if by his breach of contract, 
 the expense of reexchange be actually incurred, ought he not to pay it ? " 
 Bayley on Bills, ch. 9, p. 353 (5th edit. 1830) ; Id. ch. 10, p. 456, note 
 
CH. XI.] PEOCEEDINGS OiST NON-PAYMENT. 517 
 
 § 399. In respect to the Drawers and Indorsers of 
 Bills of Exchange, which have been dishonored, either 
 
 (85,) where he adds : " And it seems reasonable, that he should be liable 
 to all parties, where he has effects, and to all excepting the Drawer, 
 where he has not." Id. oh. 10, p. 456, note. In Francis v. Rucker, 
 Ambler, R. 673, Lord Camden allowed the Drawer of a Bill, which had 
 been drawn in pursuance of orders of the Acceptors, to prove his debt, in- 
 cluding re'exchange against (the Acceptors, who had become bankrupt. 
 The same point was decided in Ex parte Hoffman, I Cook's Bank. Law, 
 173 ; S. C. cited 1 Deacon, Bank. Law, ch. 9, § 15, p. 263. See also Ex 
 parte Moore, 2 Bro. Ch. E. 597. Pothier goes farther, and holds, that, in 
 all cases, the Acceptor ought to pay to the Holder, or proprietor of the 
 Bill, not only the principal sum, but interest, the expenses of the protest, 
 and also the reexehange ; in like manner as the Drawer is bound to pay 
 the like amounts, as an incident to his contract created by the acceptance. 
 Pothier de Change, n. 115 to 117. Jousse positively affirms this doctrine, 
 and, in so doing, he follows the doctrine of Savary. He says : "Lorsque 
 celui sur qui la lettre est tiiee 6tait dtbiteur da tireur au temps du Protfit, 
 ce dernier a son recours centre lui pour tons les frais de Prot6t, voyage et 
 autres, qu'il est obligfi de payer ; pourvu nfianmoins que celui sur qui la 
 lettre est tit&e e>lt mand6 auparavant au tireur qu'il pouvait tirer sur lui, 
 ou que le tireur lui eAt remis provision h cet effet avant r6ch6ance de la 
 lettre, ou que ce dernier I'eAt acceptfee ; mais ce recours cesse d'avoir lieu 
 si le tireur avait tir6 sa lettre sur I'autre, quoique son d6biteur, sans lui en 
 avoir auparavant donn6 I'ordre. C'est ainsi que le pense Savary en son 
 Parfait Negociant, partie 3, livre 1, ch. 16, page 859, 886. La raison 
 qu'en donne cet Auteur, c'est que ce serait donner occasion k des trom- 
 peries qui ruineraient entifirement le commerce, parce qu'un Banquier ou 
 N6gociant k qui il est dil de I'argent pour prfit, ou vente de marchandises 
 par un autre Negociant, n'a pas droit de tirer une lettre de change sur ce 
 dernier sans son consfentement ; mais s'il veut 6tre pay6 de sa dette, il a 
 les voies ordinaires de se ponrvoir en justice, pour obtenir une Sentence de 
 ■cbndamnation centre son dfebiteur, en vf rtu de laquelle il le contraindra au 
 paiement. Ce sentiment de Savary n'est pas sans difficultfe." Jousse, 
 Comm. sur I'Ord. 1673, tit. 6, art. 4, p. 140, 141. Mr. Bell says : " But 
 it has been questioned, Whether the Acceptor's estate is liable to a claim 
 for reexehange. The foreign jurists seem to hold the claim good against 
 the Acceptor. It is not a demand, which naturally arises against the 
 Acceptor by the porleur, for his proper recourse is against the Drawer. 
 But, as the Drawer will, on answering that demand, have his claim against 
 the Acceptor, provided he have funds in his hands, for indemnification, it 
 does not appear that any bar would lie to a claim by the porteur against 
 the Acceptor's estate, in the case of the Drawer becoming bankrupt ; for 
 B. OP EX. 44 
 
518 BILLS OF EXCHANGE. [CH. XI. 
 
 by non-acceptance or by non-payment, they are ordi- 
 narily liable to the Holder for the principal sum, and 
 interest, and the damages, and expenses, incurred by 
 the dishonor.* These damages may, according to the 
 laws-of different countries, vary in their amount, and in 
 the mode of ascertaining them. But the same general 
 principles of the Law Merchant pervade the systems of 
 most, if not of all, commercial nations in modern times, , 
 founded upon a large and comprehensive equity. The 
 principal sum is of course ascertained by its true or 
 par value at the place of the acceptance or payment. 
 The damages, in the absence of any positive or cus- 
 tomary rule, are ascertained by the rate of reexchange 
 
 it seems to be implied, in the nature of the Acceptor's engagement to this 
 peculiar sort of instrument, that he is tacitly bound for the common mer- 
 cantile damage arising from its dishonor. In England, however, there are 
 cases denying to the Bill-holder a claim for reexchange against the Ac- 
 ceptor, and restraining the remedy to a claim against the Drawer. And 
 these will certainly deserve very great attention, when such a question 
 shall arise in Scotland." 1 Bell, Comm. B. 3, ch. 2, § 4, p. 407 (5th 
 edit.) But see Napier v. Schneider, 12 East, R. 420, where an opinion 
 seems to have been incidentally suggested against the allowance of re- 
 exchange in case of an Acceptor. To the same effect is Woolsley v. De 
 Crawford, 2 Camp. R. 440. 
 
 1 Chitty on Bills, ch. 9, p. 433 (8th edit. 1833) ; Id. ch. 10, p. 632 ; 
 Id. Pt. 2, ch. 8, p. 668 ; Bayley on Bills, ch. 9, p. 352, 353 (5th edit. 
 1830) ; 1 Bell, Comm. B. 3, ch. 2, § 4, p. 404 to 407 (5th edit.) ; 3 Kent, 
 Comm. Lect. 44, p. 115 to 120 (4th edit.) — Mr. Bayley says: "The 
 only incidental expense, in the case of the person who made the present- 
 ment, is the charge of the noting and protest ; in the case of any ante- 
 cedent party, that of the return of the Bill or note must be added. Upon 
 a foreign Bill, the reexchange forms a part of the expense of the return ; 
 and let the Bill be returned through ever so many hands, the Drawer is 
 liable for the reexchange upon each return. And the Drawer is liable for 
 the reexchange, and every other expense arising from the non-acceptance 
 or non-payment, notwithstanding the dishonor of the Bill was expressly 
 ordered by the country on which it was drawn^" Bayley on Bills, ch. 9, 
 p. 352, 353 (5th edit. 1830) ; Bank of U. States v. United States, 2 How. 
 Sup.Ct.R. 711. 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 519 
 
 between the country where the Bill is accepted, and 
 the country where the Bill is drawn, in the case of the 
 Drawer ; and between the former and the country 
 where the Bill is indorsed in the case of the Indorser, 
 The interest is allowed according to the law of the 
 place, where the money is due and ought to be paid ; 
 and the expenses are the ordinary charges of protest- 
 . ing the Bill and other incidental expenditures.^ If the 
 
 1 Mr. Chitty, speaking upon this subject, says : " The rate of interest 
 allowed in this country is £5 per cent, per annum, as well in courts of 
 equity as at law. But, when a higher rate of interest is allowed in a 
 foreign country, it may be recovered here, and in India it is not always 
 limited to £12 per cent. In an action against the Drawer of a foreign 
 Bill of Exchange, dishonored here by non-acceptance, where the plaintiff 
 is allowed a per centage, as of £10 per cent, in the name of damages, he 
 is only entitled to interest from the day the Bill ought to have been 
 paid ; but, where there is no such allowance for damages, the plaintiff is 
 entitled to interest from the day the Bill was dishonored for non-accept- 
 ance. And, in a late case, upon a Bill drawn in Bermuda, on England, 
 which ought to have been paid in England, the plaintiff recovered 7 1-2 in- 
 terest, being the rate of interest at Bermuda. We have before suggested, 
 that it may be expedient to limit the amount of interest as well as reex- 
 change, and expenses, by the express terms of the Bill. The only ex- 
 pense which the Holder of a Bill, at the time it became due, can be put, 
 to by the dishonor of it, is that of the charge for noting and protesting ; 
 and he cannot demand more of any of the parties to the Bill than a satis- 
 faction for that expense. But a party who has been obliged to pay the 
 Holder in consequence of the Acceptor's refusal, frequently is put to other 
 expenses by the return of the Bill, such as reexchange, postage, commis- 
 sion, and provision. An Indorser of a Bill having had an action brought 
 against him by the Indorsee, is not entitled to recover from the Acceptor 
 the cost incurred in such action unless there was an express and collateral 
 contract of indemnity. Reexchange is the expense iricurred by the Bill 
 being dishonored in a foreign country, in which it was payable, and 
 returned to the country in which it was made or indorsed, and there taken 
 up ; the amount of it depends on the course of the exchange between the 
 countries through which tlje Bill has been negotiated. It is not neces- 
 sary for the plaintiff to show that he has paid the reexchange ; it suffices, 
 if he were liable to pay it ; but if the jury find that there was not at the 
 time any course of reexchange between the two foreign places, then no 
 
520 BILLS OF EXCHANGE. [CH. XL 
 
 Bill has been in part paid by the Acceptor, the reex- 
 
 reexehange is recoverable. It appears not to be decided, whether any 
 exchange or reexchange can be allowed between this and an enemy's 
 country. It is said that the relative abundance or scarcity of money in 
 different countries, is what forms the exchange between those countries. 
 In the drawing of Bills, on a foreign country, the value of money in that 
 country is the first thing to be inquired into ; thus, for instance, suppos- 
 ing 71,000 livres tournois are worth £603 19s. lOd. English money ster- 
 ling, and that an English merchant has sold goods of the value of jG603 
 19s. lOd. to a Frenchman, who wishes to pay him for the same by a Bill 
 of Exchange payable in France, the Bill must of course be drawn for 
 71,000 Jivres tournois ; if, at the time the Bill is due, the exchange is in 
 favbr of France, and consequently, the value of 71,000 livres tournois 
 exceeds that of jE603 19s. lOd. English money, and the Bill be returned 
 to this country, and the Drawer or an Indorser be called on to take it up, 
 he may (as in the case of Mellish v. Simeon) be obliged to pay £309 4s. 
 5d. more than the amount of the Bill, which sum forms what is called the 
 reexchange, and is the difference between the draft and re-draft. It ap- 
 pears that the Drawer of a. Bill is liable for the whole amount of the 
 reexchange, occasioned by the circuitous mode of returning the Bill 
 through the various countries in which it has been negotiated, as much as 
 for that occasioned by a direct return, although payment of the Bill were 
 expressly prohibited by the laws of the country on which it was drawn. 
 But the Acceptor is not liable for reexchange ; for his contract cannot be 
 carried further than to pay the sum specified in the Bill, together with 
 legal interest, where interest is due: We have before suggested the ex- 
 pediency of limiting the amount of reexchange either on the Bill or indorse- 
 ment. Where A. deposited a sum of money at the banking-house of B. 
 in Paris, for which B. gave him his note payable in Paris, or, at the choice 
 of the bearer, at the Union Bank in Dover, or at B.'s usual residence in 
 London, according to the course of exchange upon Paris, and, after this 
 note was given, the direct course of exchange between London and Paris 
 ceased altogether, having been previously to its total cessation extremely 
 low, and the note was at a subsequent period presented for acceptance and 
 payment at the residence of B. in London, at which time there was a cir- 
 cuitous course of exchange on Paris, by way of Hamburg, it was holden 
 that A. was entitled to recover on the note according to such circuitous 
 course of exchange upon Paris at the time when the note was presented. 
 Between this country and India, it is not customary to make a distinct 
 charge of reexchange ; but it has been the cotistant course with respect to 
 Bills for payment of pagodas in the East Indies, and returned protested to 
 allow, at the rate of lOs. per pagoda, and 5 per cent, after the expiration of 
 thirty days from the notice to the defendant of the Bill's dishonor, which 
 
CH, XI.] PROCEEDINGS ON NON-PAYMENT. 521 
 
 change and interest, and damages, are to be deducted, 
 pro tanio} 
 
 includes interest, exchange, and all other charges ; and by an arrange- 
 ment entered into in 1822, between certain persons connected with the 
 East India trade, 25 per cent, appears to have been considered a proper 
 sum. But that arrangement could of course only bind the parties to it." 
 Chitty on Bills, Pt. 2, ch. 6, p. 665 to 668 (8th edit. 1833.) The com- 
 missions, also, of an agent to whom the Bill has been indorsed to obtain 
 payment is sometimes allowed. It is called, in the French Law, Provi- 
 sion. With respect to provision, it is said by Pothier, that it is usual for 
 the Holder of a Bill to allow his agent, to whom he indorses it for the 
 purpose of receiving payment for him, a certain sum of money called 
 " provision," at the rate of so much per cent, to recompense him not only 
 for his trouble, but also, if such agent be a banker, for the risk he runs of 
 losing the money, which he is obliged to deposit with his correspondents 
 in different places for the purpose of repaying his principal the amount of 
 the money received on the Bills. And it is said, that one half per cent. 
 is not an unreasonable allowance, whether the agent be a banker or not. 
 The charges above enumerated are the only legal ones ; nor can any ex- 
 traordinary loss not necessarily incidental, which the Holder or other par- 
 ties may be put to by travelling, or by some advantageous engagement 
 being delayed or defeated by the want of punctual payment, be in any 
 case legally demanded. But where it is necessary or more convenient for 
 the Holder to send notice of dishonor by other conveyances than the post, 
 he may send a special messenger, and he may recover the reasonable 
 expenses incurred by that mode of giving notice. Chilty on Bills, Pt. 2, 
 ch. 6, p. 670 (8th edit. 1833.) 
 
 1 Chitty on Bills, Pt. 2, ch. 6, p. 669, 670. Mr. Chitty here says : 
 "In a late case a question arose upon the subject of damages, as to the 
 sum to be allowed, as the damages upon the dishonor and protest of a 
 Bill. It appeared in evidence, that upon the dishonor of a Bill drawn in 
 Demarara upon England, and sent back dishonored and protested, .£25 
 per cent, was considered to be the amount of the loss ; and the plaintiff 
 accordingly claimed damagfes at that rate, upon the whole amount of the 
 Bill of jG500. It appeared, however, upon further examination, that the 
 Bill had not been sent back protested for the whole amount, and that the 
 usual practice in such cases was (to which some of the special jury pledged 
 their own knowledge,) to retain the dishonored Bill in this country, and 
 send a protest to Demarara, where, upon arrival of the protest, security 
 was demanded of and given by the Drawers, and that the whole of the 
 loss from the dishonor was not incurred unless the Bill in the result was 
 not paid. It appearing, in the present instance, that the Bill had been 
 44* 
 
522 BILLS OF EXCHANGE. [CH. XI. 
 
 § 400. By Reexcbange, in the commercial sense here 
 alluded to, is meant the amount for 'which a Bill can be 
 purchased in the country where the acceptance is made, 
 drawn upon the Drawer or Indorser in the country 
 where he resides, which will give the Holder of the ori- 
 ginal Bill a sum exactly equal to the amount of that 
 Bill at the time when -it ought to be paid, or, when he 
 is able to draw the reexchange Bill, together with his 
 necessary expenses, and interest; for that is precisely 
 the sum, which the Holder is entitled to receive, and 
 which will indemnify him for its non-payment.^ Now, 
 
 retained in this country until ;C400 had been paid, and that ultimately it 
 had been sent back protested and dishonored to the amount of £100 only, 
 no more than £25 damages were allowed in that respect." 
 
 1 3 Kent, Comm. Lect. 44, p. 115, 116 (4th edit.) — Mr. Chancellor 
 Kent,' in this place, says : " The engagement of the Drawer and Indorser 
 of every Bill is, that it shall be paid at the proper time and place ; and, if 
 it be not, the holder is entitled to indemnity for the loss arising from this 
 breach of contract. The general Law Merchant of Europe authorizes the 
 Holder of a protested Bill immediately to re-draw /rom the place, where 
 the Bill was payable, on the Drawer or Indorser, in order to reimburse 
 himself for the principal of the Bill protested, the contingent expenses at- 
 tending it, and the new exchange, which he pays. His indemnity requires 
 him to draw for such an amount, as will make good the face of the Bill, 
 together with interest from the time it ought to have been paid, and the 
 necessary charges of protest, postage, and broker's commission, and the 
 current rate of exchange at the place, where the Bill was to be demanded 
 or payable, on the place, where it was drawn or negotiated. The law 
 does not insist upon an actual re-drawing, but it enables the Holder to re- 
 cover what would be the price of another new Bill, at the place, where the 
 Bill was dishonored, or the loss on the reexchange ; and this it does, by 
 giving him the face of the protested Bill, with interest, and the necessary 
 expenses, including the amount, or, price of the reexchange. But the 
 Indorser of a Bill is not entitled to recover of the Drawer the damages in- 
 curred by the 'non-acceptance of the Bill, unless he has paid them, or is 
 liable to pay them. Nor is the Acceptor liable for the extra charges on the 
 reexchange. He is only chargeable for the sum specified ii^ the Bill, with 
 interest according to the rate established at the place of payment. The 
 claim for the reexchange is against the Drawer, who undertakes to indem- 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 523 
 
 this rate of Reexchange, exactly like the rate of the 
 original Bill of Exchange, varies in different countries, 
 and at different times in the same country, and, there- 
 fore, it becomes a variable quantity .^ 
 
 § 401. The subject is exceedingly well illustrated in 
 a case, where a Bill was drawn in London upon Lisbon 
 in Portugal, and was there dishonored by non-payment, 
 and the Holder afterwards brought a suit against an 
 Indorser, who had indorsed it in London, and had 
 received due notice of the dishonor ; and the question, 
 for the consideration of the Court, was, whether any, 
 
 nify the Holder, if the Bill be not paid." S. P. Kingston ». Wilson, 4 
 Wash. Cir. R. 310, 316. 
 
 1 Pothier (De Change, n. 64) gives the following account of reexchange : 
 " Pour savoir ce que c'est que ce rechange, il faut observer que celui, k 
 qui la leltre a 6l6 fournie, peut, en cas de refus de paiement de la lettre, 
 aprfis avoir fait son prot^t, prendre d'un banquier du lieu, oil la lettre 6tait 
 payable, une somme d'argent pareille 4 cells port6e par la lettre, qui n'a 
 pas 6t6 acquittfie, at donner k ce banquier, en fechange de I'argent, qu'il 
 regoit de lui, une lettre de change de cette somme tir6e h vue sur celui, qui 
 lui avait fourni la sienne, ou sur quelque autre personne. Si, pour avoir 
 cet argent en ^change de cette lettre, il a pay6 k ce banquier un droit de 
 change, parce que I'argent alors gagnait sur les lettres, ce droit de change, 
 qu'il a pay6 a ce banquier pour avoir I'argent dont il avait besoin, est ce 
 qu'on appelle le rechange, dont il doit 6tre rembours6 par celui, qui lui a 
 fourni la lettre, dont on lui a refas6 le paiement. Celui, k qui la lettre a 
 6t6 fournie, pour pouvoir se faire rembourser de ce rechange, est tenu de 
 justifier, par des pieces valables, qu'il a pris de I'argent dans le lieu auquel 
 la lettre, qui lui a 6t6 fournie, 6tait tir6e. L'int6r6t de ce rechange ne lui 
 est du que du jour de la demande." See also Pardessus, Droit Comm. 
 Tom. 3, art. 437 to 440; Jousse, Comm. sur I'Ord. 1673, tit. 6, art. 4, p. 
 139 to 141 ; Code de Comm. art. 177, 178 ; Heineccius de Camb. cap. 4, 
 §45. Heineccius says : " Per cambium intelligitur ipsa summa, quse sol- 
 venda erat, nee tamen soluta est. Recambium (Ricambio), quod vocant 
 den Wieder-Riick-Gegen-Wechsel, in eo consistit, quod prsesentans, non 
 aoceptatis litteris cambialibus, a tertio mutuam sumit pecuniam, et pro ea 
 litteras cambiales trassat ad trassantem. Quum vero id sine impendiis fieri 
 nequeat, damnum illud omne repetitur sub nomine recambii." See also 
 1 Bell, Comm. B. 3, oh. 2, § 4, p. 404 to 406 (5th edit.). 
 
524 BILLS OP EXCHANGE. [CH. XI. 
 
 and what rate of damages ought to be allowed to the 
 Holder for reexchange ? Upon that occasion, the follow- 
 ing clear exposition of the subject was stated by the 
 counsel for the plaintiff: " Then the nature of the trans- 
 action, which gives rise to the question of Exchange 
 and Reexchange, is this : A merchant in London draws 
 on his debtor in Lisbon a Bill in favor of another, for so 
 much, in the currency of Portugal, for which he receives 
 its corresponding value, at the time, in English cur- 
 rency; and that corresponding value fluctuates, from 
 time to time, according to the greater or lesser demand 
 there may be, in the London market, for Bills on Lis- 
 bon, and the facility of obtaining them. The difference 
 of that value constitutes the rate of exchange on Lisbon. 
 The like circumstances and considerations take place at 
 Lisbon, and constitute, in like -manner, the rate of 
 exchange on London. When the Holder, therefore, of 
 a London Bill, drawn on Lisbon, is refused payment of it 
 in Lisbon, the actual loss, which he sustains, is not the 
 identical sum which he gave for the Bill in London, 
 but the amount of its contents, if paid at Lisbon, where 
 it was due, and the sum, which it will cost him to 
 replace that amount upon the spot, by a Bill upon Lon- 
 don, which he is entitled to draw upon the persons there 
 who are liable to him upon the former Bill. That cost, 
 whatever it may be, constitutes his actual loss, and the 
 charge for reexchange. And it is quite immaterial, 
 whether or not, he in fact re-draws such a Bill on Lon- 
 don, and raises the money upon it in the Lisbon mar- 
 ket. His loss, by the dishonor of the London Bill, is 
 exactly the same, and cannot depend on the circum- 
 stance, whether he re-pay himself immediately by re- 
 drawing for the amount of the former Bill, with the ad- 
 dition of the charges upon it, including the amount of 
 
CH. XI.J PROCEEDINGS ON NON-PAYMENT, 525 
 
 the reexchange, if unfavorable to this country at the 
 time ; or, whether he wait till a future settlement of 
 accounts with the party, who is liable to him on the 
 first Bill here. But that party is, at all events, liable 
 to him for the diiference ; for, as soon as the Bill was 
 dishonored, the Holder was entitled to re-draw. That, 
 therefore, is the period to look to. It ought not to de- 
 pend on the rise or fall of the Bill market, or exchange 
 afterwards ; for, as he could not charge the increased 
 difference, by his own delay in waiting tiU the exchange 
 grew more unfavorable to England, before he re-drew ; 
 so, neither could the party here fairly insist on having 
 the advantage, if the exchange happened to be more 
 favorable, when the Bill was actually drawn. Where 
 reexchange has been, recovered on the dishonor of a fo- 
 reign Bill, it has not been usual to prove, that, in fact, 
 another Bill was re-drawn. If the quantum of damage 
 is not to be ascertained by the existing rate of exchange 
 at the time of the dishonor, the rule will become ex- 
 tremely complex for settling what is to be paid on the 
 Bill between different Indorsees, each of whom takes it 
 at the value of the exchange, when he purchased it. 
 If, then, the amount of the reexchange between the two 
 countries, at the time of the dishonor, be the true 
 measure of damage, which the Holder at Lisbon was 
 entitled to receive from his Indorsee in England ; and 
 that reexchange consists of the amount of a Bill on 
 London, which would put the Holder of the dishonored 
 Bill in the same situation, as if he had received the 
 contents of it, when due, in Lisbon ; it cannot make any 
 difference, whether the exchange between Lisbon and 
 London, at the time, were carried on directly, or through 
 the medium of other places. The more circuitous and 
 
526 BILLS OF EXCHANGE. [CH. XI. 
 
 difficult it was, the greater would be the loss of the 
 Holder by the dishonor." ' 
 
 I De Tastet v. Baring, 11 East,R. 265, 369 to 271. The doctrine may 
 be farther practically illustrated by another case, which has actually passed 
 into judgment. It was as follows : On the 9th of July, 1793, two Bills of 
 Exchange were drawn by Simeon in London, on Boyd & Co. in Paris, 
 one for 35,000, the other for 36,000 livres, tournois, amounting together to 
 £603 19s. lOd. sterling, according to the rate of exchange between Lon- 
 don and Paris of 6J(/. for the French crown of three livres, and payable to 
 the order of IVlellish & Co., who indorsed them in London to Feysset & 
 Co. at Amsterdam. Feysset & Co. indorsed them to Meryolet at Am- 
 sterdam, and Meryolet to Androine at Paris. When they were presented 
 for acceptance, Boyd & Co. refused to accept them, but promised that they 
 should be paid when they became due. In the mean time, the French 
 Convention passed a decree, prohibiting the payment of any Bills drawn in 
 any of the countries at war with France, and, of course, the Bills in ques- 
 tion were not paid. In consequence of this, they were sent back by An- 
 droine to Meryolet at Amsterdam, protested for non-acceptance and non- 
 payment, and, at the same time Androine drew another Bill on Meryolet 
 for the amount of them, at the rate of 18 1-2 groots for the French crown of 
 three livres, for the reexchange between Paris and Amsterdam, together 
 with the ordinary charges, which Bill Meryolet paid, and was reimbursed 
 by Feysset & Co., by compromise between them, at the rate of 18 groots 
 for the French crown, amounting to jC905 13s. 9d. sterling, for which 
 sum, together with charges at Amsterdam, and the reexchange between 
 that place and London, making in the whole £913 is. 3d. sterling, Feys- 
 set & Co. drew a Bill on Mellish & Co., which they paid, and took back 
 the former Bills, on which they brought the present action against Simeon, 
 the Drawer, and recovered a verdict for the whole sum of £913 4s. 3d. 
 And now Le Blanc, Serjeant, moved for a new trial on the ground that 
 the defendant was not liable for the loss on the reexchange. It is true, he 
 said, that the Drawer of a Bill of Exchange undertakes, by the act of 
 drawing it, that the Drawee shall be found in the place where he is described 
 to be, and shall have effects in his hands, but the undertaking does not ex- 
 tend to the case of a prohibition to accept or pay the Bill, imposed by the 
 law of a foreign country, in which the Drawee resides. When a person 
 takes a Bill, circumstanced as this was, he must submit to the laws of that 
 country. Th^e was no default in the Drawer ; he therefore cannot, in 
 justice, be liable for more than the sum he originally received for the Bills, 
 with interest, and the expenses of protesting them. Lord Chief Justice 
 Eyre. — I see no distinction between this case and the common one of a 
 Bill being refused payment. The Drawer must pay for all the conse- 
 
CH. XI.] PEOCEEDINGS ON NON-PAYMENT. 527 
 
 § 402. In respect to reexchange, if there be a direct 
 commercial iatercourse between the country where the 
 acceptance and payment are to be made, and the 
 country where the Drawer lives, the- rate of that re- 
 exchange is the proper amount to be allowed to the 
 Holder.' But if, owing to political events, or com- 
 mercial embarrassments, or otherwise, there be no such 
 
 quences of the non-payment, and the loss on the reexchange seems to me 
 to be part of the damages arising from the contract not being performed. 
 
 1 thought, indeed, at the trial, that it might be a question. Whether the 
 Drawer were liable for the reexchange occasioned by the circuitous mode 
 of returning the Bills, through Amsterdam ; but the jury decided it. Bul- 
 ler, J. — What is the engagement of the Drawer of a Bill of Exchange? 
 He undertakes that the Bill shall be paid when due. If it be not paid, 
 it is not necessary for the Holder to inquire, for what reason it is not paid, 
 and if the Holder has been guilty of'nodefault, the Drawer is answerable 
 for the amount of the Bill ; and, if he is liable for the Bill, he must also 
 
 ■ be liable for the reexchange, which is a consequence of the Bill not being 
 paid. Heath, J., of the same opinion. He, who undertakes for the act of 
 another, undertakes that it shall be done at all events. Mellish v. Simeon, 
 
 2 H. Black. R. 378, 379. 
 
 1 Jousse, Comm. sur I'Ord. 1673, tit. 6, art. 4, p. 139, 140. Jousse, 
 on this occasion, said: "Si le porteur de la leltre protestfie, qui a 6t6 
 oblig6 de prendre de I'argent, au lieu de fournir une lettre de change sur 
 celui, dont la lettre a 6t6 protestfee, ou dans le mSme lieu, en fournissait 
 sur une autre place, oil le change fut plus considerable, que celui de I'en- 
 droit, d'oili est venue la lettre protest6e, il ne parait pas que le porteur de 
 la lettre protest6e piit exiger le rechange sur le pied du second change ; 
 car c'est une maxime, prise des premieres regies de r6quil6, que toutes 
 les fois que le porteur d'une lettre de change protestfee pent prendre son 
 Ak dommagement a moins de perte et de dommage pour le tireur de cette 
 lettre d'une fajon que d'une autre, ce dernier n'est oblig6 de rembouser le 
 rechange que de la fafon, qui produit le moins de dommage pour lui. 
 Woin il suit, qui toutes les fois, qu'il y a un commerce ordinaire et r6gl6 
 entre la place ou la lettre de change devait 6tre pay6e, et le lieu d'ou elle 
 est tir6e, v. g. entre Paris et Lyon, il y a moins de perte pourle tireur que 
 le rechange suit pris k Paris pour Lyon, que s'il 6tait ptis pour une autre 
 Ville, comme pour Londres, ou Amsterdam; et par consequent le tireur 
 d'une lettre de change tir^e de Lyon, payable et protest6e i Paris, ne doit 
 que le rechange de Paris El Lyon, et ce serait une injustice de I'obliger 4 
 le rembourser d'une autre maniere." 
 
528 BILLS OF EXCHAJ!JQE. [CH. XL 
 
 direct intercourse, then the Drawer is bound to pay the 
 whole amount of the reexchange occasioned by a cir- 
 cuitous mode of transmitting and negotiating the Bill 
 in the various countries, through which it must pass, or 
 be negotiated, in order to reach its proper destination, 
 or to obtain the sum due to Ihe Holder. In this way, 
 the Drawer may, under peculiar cii'cumstances, be bur- 
 dened with successive reexchanges, if there arises a 
 necessity of drawing diiFerent Bills in the different 
 countries, through which the negotiation is to be ac- 
 complished.^ Such events are rare, and, in the present 
 state of the commerce of the world, can scarcely occur ; 
 but in oases of war, or sudden revolutions. 
 
 § 403. Nay, as it should seem, if there have been 
 successive indorsements of the original dishonored Bill, 
 in different countries, the Holder may draw, by way of 
 reexchange, upon the last Indorser, and he upon the 
 next, and so each Indorser upon the antecedent party, 
 and thus the Drawer be compelled to pay all these accu- 
 mulated reexchanges upon the demand of the last Indor- 
 ser, or party, who has paid them on the redraft upon 
 himself.^ Upon the same ground, it may be said that 
 each Indorser is liable to his immediate Indorsee, in the 
 like manner ; since every Indorser is, as to the subse- 
 quent parties, to be treated as a new Drawer. The 
 same rule is laid down by Pardessus as the modern law 
 
 1 Ante, V399, 400, 401, and note; Chitty on Bills, Pt. 2, ch. 6, p. 668 
 (8th edit. 1833) ; Id. ch. 9, p. 438 ; Id. ch. 10, p. 532 ; Hellish v. Si- 
 meon, 2 H. Black. R. 378 ; Pollard v. Herries, 3 Bos. & Pull. 335 ; Bay- 
 ley on Bills, ch. 9, p. 354, 355 (5th edit. 1830) ; 1 Bell, Comm. B. 3, ch. 
 2, ^ 4, p. 405, 406 (5th edit.) 
 
 2 Mellish V. Simeon, 2 H. Black. R. 378 ; Chitty on Bills, Pt. 2, ch. 6, 
 p. 666 to 668 (8th edit. 1833) ; Bayley on Bills, ch. 9, p. 352 to 354 (5th 
 'edit. 1830.) 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 529 
 
 of France.^ But, in all these cases, the Holder, and so 
 each antecedent Indorsee, as against the prior parties, 
 can only avail himself of one satisfaction by reexchange, 
 and is not entitled to any accumulation of reexchange 
 against several and distinct Indorsers, or against the 
 Drawer and an Indorser ' also.^ But, in no event, is 
 the Drawer or any Indorser hound to pay any re- 
 exchange, or accumulated reexchange, by circuitous 
 negotiations through diiferent countries, excepting 
 when it is authorized and allowed by the law of 
 the country where the Bill was drawn, or where it was 
 indorsed by the Indorser.^ 
 
 § 404. The old law of France provided, in like 
 manner, for^ the reimbursement or indemnity, of the 
 Holder, in case of a dishonor of a Bill by non-pay- 
 ment, by entitling him to reexchange, and interest, and 
 postage, and commissions, and the expenses of protest- 
 ing the Bill, as well as other incidental expenses.'' 
 But then the Drawer was made liable only for the 
 reexchange in the place where the payment ought to 
 have been made, and not for that in other places where 
 the Bill had been negotiated, unless an express author- 
 ity to negotiate it in other places was given by the 
 Bill.^ And, in like manner, the Indorsers were liable 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 438, 445 ; Id. Tom. 5, art. 
 1498. 
 
 2 Chitty on Bills, Pt. 2, ch. 6, p. 669 (8tii edit. 1833) ; Pardessus, Droit 
 Comm. Tom. 2, art. 439. 
 
 3 Ante, ^ 400, 401, and note; Code de Comm. art. 179; Pardessus, 
 Droit Comm. Tom. 2, art. 438,^445 ; Id. Tom. 5, art. 1498, 1499, 1500. 
 
 * Ante, § 400, 401, and note ; Pothier de Change, n. 64 ; Jousse, Comm. 
 sur I'Ord. 1673, art. 4 to 7, p. 139 to 144. 
 
 6 Jousse, Comm. sur I'Ord. 1673, art. 5, 6, p. 141 to 143. Jousse 
 after citing the Article, says, in his Commentary : " Ainsi quand m£me 
 
 B. OF EX. 45 
 
530 BILLS OF EXCHANGE. [CH. XL 
 
 for such reexchange only in the places where they had 
 indorsed the Bill, or it had been negotiated, according 
 to their order.' 
 
 § 405. The modern law of France does not, in its 
 main provisions, substantially differ from the old law. 
 The Holder, upon the dishonor by non-payment, has an 
 election, either to receive from the antecedent parties 
 to the Bill the amount expressed therein, with interest 
 from the protest for non-payment, and the expenses 
 thereof; or, if he prefers it, the restitution of the sum 
 
 une lettre de change revenue k Prot^t aurait 6t6 n6goci6es dans plusieurs 
 Villes du Hoyaume, ou m6me hors do Royaume, comme si une Lettre de 
 change lir6e de Paris sur Lyon avail 6i& n6goci6e h Bordeaux, k Amster- 
 dam, etc., neamoins le tireur ne sera tenu de payer que le reohange de 
 Lyon k Paris, et non les changes et rechnnges dAs pour les nfegociations 
 faites dans les autres Villes ; les autres rechanges seront d<is par les don- 
 neurs d'ordre, chacun en droit soi pour les ordres qu'ils auront donnes. 
 Autremenl ce serait une chose d6savantageuse au commerce, si une sim- 
 ple lettre de change, qui aurait ili nigoci6e sans la participation du tireur 
 et pour le seul avantage du porteur, venant k Stre protest6e, on pouvait 
 obliger ce tireur 4 payer autant de rechanges qu'il se trouverait d'ordres 
 sur sa lettre. C'est-A-dire, que si la lettre tit6e de Paris sur Lyon a fet6 
 nfegoci^e, v. g. de Paris k Bayonne, et ensuite de Bayonne k Amsterdam, 
 €t enfin d'Amsterdam A Lyon, le porteur de la lettre payable k Lyon, apris 
 le Proidt, n'aura son recours pour le paiement du contenu en la lettre, et 
 pour le rechange, que centre le M6gociant ou Banquier d'Amsterdam qui 
 a pass6 I'ordre k son profit, celui d'Amsterdam contre celui de Bayonne 
 qui lui a pass6 I'ordre, celui de Bayonne contre celui de Paris, et celui de 
 Paris contre celui de Lyon qui est le tireur et qui lui a fourni la lettre. 
 Ainsi soil que les changes soient plus hauts ou plus has dans chacunes de 
 ces Villes, n6anmoins le tireur ne devra que le prix du rechange de Lyon 
 k Paris." And again : " Ainsi dans une lettre tiiie de Paris sur Lyon, si 
 ]e tireur donnait pouvoir par la lettre, ou par an icrit particulier d'en dis- 
 poser, V. g. pour Amsterdam, et que cette lettre revint k Protet, ce tireur 
 serait tenu envers celui k qui la lettre a iik fournie, du rechange de Lyon 
 k Amsterdam, et de celui d'Amsterdam k Paris, ce qui est une suite de la 
 condition qui s'est faite entr'eux. II en est de mSme du cas oi^ le pouvoir 
 de n6gocier est ind^fini ; car alors il sera dO autant de rechanges par le 
 tireur, qu'il y a de lieux differ6nis sur lesquels la lettre a 6t6 n6goci6e." 
 1 Ibid. 
 
OH, XI.] PROCEEDINGS ON NON-PAYMENT. 531 
 
 to obtain the Bill of Exchange ; or, if he prefers it, he 
 has a right to redraw from the place, where the Bill is 
 payable, upon the Drawer or the Indorsers, another 
 Bill of Exchange (Reexchange, or, as it is usually 
 called in the French Law, Retraite,) for the amount of 
 the principal sum of the protested Bill, and interest 
 from the date of the protest, the expenses of the pro- 
 test, and the other lawful expenses, such as commis- 
 sions, or brokerage, or journeys, when requisite to ob- 
 tain payment, and the necessary stamp duties, and 
 postage ; provided these expenses do not exceed what 
 of right are demandable. The proof of these charges 
 is established by an account {un compte de retour,) 
 which ought to be annexed to the Bill of reexchange, 
 and to contain the name of the person on whom the 
 reexchange is drawn, and it ought also to state what is 
 the rate of exchange, at which the new Bill (the reex- 
 change) has been negotiated.-' The reexchange, as to 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 437 ; Code de Comm. art. 177 
 to 186 ; Locr6, Esprit du Code de Comm. Tom. 1, art. 177 to 180, and 
 Comment, p. 536 to 555. I have followed, in substance, the text of Par- 
 dessus, a good summary of which is g-iven in Chlity on Bills, ch. 10, p. 
 541 (8ih edit. 1833.) The articles of the Code of Commerce, on this sub- 
 ject, are as follows : " Reexchange results from the act of redrawing. 
 Redrawing is, when the Holder of a Bill protested draws another Bill on 
 the Drawer, or one of the Indorsers, of the former Bi!I, to reimburse him- 
 self for the principal of the Rill protested, his expenses, and the new ex- 
 change which he pays. Reexchange is regulated, with respect to the 
 Drawer, at the current rate of exchange at the place where the Bill was 
 payable on the place, whence it was dra*n. It is regulated, with respect 
 to the Indorsers, by the rate of exchange at the place where the Bill has 
 been remitted or negotiated by them, on the place where the Yeimbursement 
 is to be effected. The Bill redrawn is accompanied with the return ac- 
 count. The return account contains the amount of the Bill protested, the 
 expenses of protest, and other lawful charges, such as banker's commis- 
 sion, brokerage, stamp duties, and postage of letters. It mentions the 
 name of the person on whom the Bill for reimbursement is drawn, and 
 
532 BILLS OP EXCHANGE. [CH. XL 
 
 the Drawer, is regulated by the rate of exchange at 
 the place where the Bill is payable, upon the place 
 where the Bill was drawn ; and, as to the Indorsers, by 
 the rate at the place where the Bill was payable, upon 
 the place where they respectively made their indorse- 
 ments.^ 
 
 § 406. Heineccius lays down the general doctrine 
 that, upon the dishonor of the Bill by non-payment, 
 the Holder is entitled to reexchange, the charges of 
 protest, interest, commissions, and brokerage, all of 
 which are included under the general name of damages. 
 Quum ergo, uti paullo ante diximus, rite iTiterpositce protes- 
 tattoms is effectus sit, ut jus protestantis conservet ; conse- 
 quens est, ut, ea facta, prcesentans adversus eum, a quo cam- 
 hium halet, regressum haheat ratione, sortis, usurarum, dawr 
 novum, et impensarum ; ea vero neghcta, vel plane omissa. 
 
 the rate of exchange at which it is negotiated. It is certified hy an ex- 
 change agent. In places where there are no exchange agents it is cer- 
 tified by two merchants. It is accompanied with the Bill of Exchange 
 protested, the protest, or a certified copy of it. In case the Bill for re- 
 imbursement be drawn on one of the Indorsers it is accompanied, besides, 
 with a certifieate attesting the course of exchange at the place where the 
 Bill protested was payable, on the place whence it was drawn. There can 
 be made only one return account on the same Bill of Exchange. This re- 
 turn account is reimbursed from Indorser to Indorser, and, finally, by the 
 Drawer. The reexchanges cannot be accumulated. Each Indorser, as 
 well as the Drawer, is charged with only one. Interest on the principal of 
 the Bill of Exchange, protested for non-payment, is due from the date of 
 the protest. Interest on the expenses of protest, reexchange, and other 
 lawful charges, is due only from the day of judicial demand. No re- 
 exchange is due if the return account be not accompanied with the cer- 
 tificates of an exchange agent, or of merchants, as prescribed in article 
 181,'' Code of Commerce, art. 177 to 186, in Rodman's Translation. 
 
 1 Pardessus, Droit Comm. Tom. 2, art. 438 ; Code de Comm. art. 179 ; 
 Locr6, Esprit du Code de Comm. art. 179, Tom. 2, p. 638,539; Par- 
 dessus, Droit Comm. Tom. 5, art. 1498 to 1500 ; Ante, ^ 176, 177, note, 
 and f) 321, note. 
 
CH, XI. J PROCEEDINGS ON NON-PAYMENT. 533 
 
 regressus iste omnino cessat. Id quod tamen ad alias per- 
 sonas, qiuxm cordrahentes, porrigi non potest, si in litterarum 
 commercio paullofuerint negligentiores} 
 
 § 407. la some couatries, ia order to avoid the in- 
 conveniences arising from tlie fluctuations of exciiange 
 and reexchange, and tiie difficulty, in many instances, 
 of ascertaining what is the true rate, and whether it 
 should be direct or circuitous in certain cases, a usage 
 has prevailed, and sometimes provision has been ex- 
 pressly made by statute, to allow a certain fixed sum 
 in lieu of damages and reexchange. Thus, for exam- 
 ple, in Massachusetts the old rule, founded upon usage 
 (which has since been modified by statute,) was, to 
 allow upon all foreign Bills drawn upon England, and 
 probably, also, upon any part of Europe, ten per cent, 
 as damages, in lieu of reexchange.® In New York, the 
 
 1 Heinece. de Camb. cap. 4, § 34 ; Id. § 44 to 48. 
 
 2 Grimshaw i>. Bender, 6 Mass. R. 157, Ifil, 162. On this occasion 
 Mr. Chief Justice Parsons, in delivering the opinion of the Court, said : 
 " The next question concerns the rnle by which damages are assessed in 
 actions upon foreign Bills of Exchange, -sued here against the Drawer. 
 According to the Law Merchant, uncontrolled by any local usage, the 
 Holder is entitled to recover the face of the Bill and the charges of the 
 protest, with interest from the time when the Bill ought to have been paid, 
 and also for the piice of reexchange, so that he may purchase another 
 good Bill for the remittance of the money, and be indemnified for the 
 damage arising from the delay of payment. But he cannot claim the ten 
 per cent, of the Bill which it is here ihe usage to pay. But the rule of 
 damages, established by the Law Merchant, is, in our opinion, absolutely 
 controlled by the immemorial usage in this State. Here, the usage is to 
 allow the Holder of the Bill the money for which it was drawn, reduced 
 to our currency at par, and also the charges of protest, with American in- 
 terest on those sums from the time when the Bill should have been paid ; 
 and the further sum of one-tenth of the money for which the Bill was 
 drawn, with interest upon it from the lime when payment of the dishonored 
 Bill was demanded of the Drawer. But nothing has been allowed foe re- 
 exchange, whether it is below, or at par. This usage is so ancient that 
 we cannot trace its origin ; and it forms a part of the Law Merchant of the 
 
 45* 
 
534 BILLS OF EXCHANGE. , [CH. XL 
 
 old rule, founded also upon usage, used to be (for it has 
 been changed by statute,) to allow twenty per cent, 
 damages, in lieu of reexchange, upon all Bills drawn 
 upon England or any part of Europe.' In Pennsyl- 
 vania, the old rule used to be to allow twenty per cent, 
 damages, in lieu of reexchange, upon all Bills drawn 
 upon England, or any part of Europe, under a statute 
 passed in ITOO.** This statute has since been super- 
 seded by more recent enactments.^ In Virginia, the 
 statute rule is, or was, in like cases, to allow ten per 
 cent, damages, in lieu of reexchange.* 
 
 Commonwealth. Courts of law have always recognized it, and juries 
 have been instructed to govern themselves hy it in finding their verdicts. 
 This jisage also governs in actions against the Indorsers of foreign Bills ^ 
 and, by a reasonable analogy, must in this case be conformed to, although, 
 in form, the defendants appear to be Acceptors. For, in fact, the inten- 
 tion of the parties was, that the Acceptors, as the original debtors, should 
 in this way be holden to remit the money which they owed to London, 
 where it was to be paid. The origin of this usage was probably founded 
 ■ in the convenience of avoiding all disputes about the price of reexchange, 
 and to induce purchasers to take their Bills, by a liberal substitution often 
 per cent., instead of a claim for reexchange. And such is the course of 
 exchange between this State'and England that the usage is generally 
 favorable to the Holders of dishonored Bills, and tends to discourage the 
 drawing of Bills by persons who have no funds to meet them. Conform- 
 ably to this usage the plaintiff in this case is entitled to the money men- 
 tioned in the Bill, reduced to our currency at par, which, together with 
 the expenses of protest, he shall receive, with Massachusetts interest, from 
 the time the Bill was payable to the present time ; and to these items let 
 there be added one-tenth of the Bill, with the like interest on it, from the 
 time payment of the Bill was demanded of the defendants, and refused, to 
 this time." The statute of Massachusetts of 4th of March, 1826, ch. 177, 
 first altered this rule; and the Revised Code of 1835, ch. 33, prescribes 
 the rule now in force in Massachusetts. 
 
 1 Hendricks v. Franklin, 4 Johns. R. 119; Graves v. Dash, 12 Johns. 
 R. 17. 
 
 2 Francis v. Rucker, Ambler, R. 673 ; Hendricks v. Franklin, 4 Johns. 
 R. 119. 
 
 3 3 Kent, Comm. Lect. 44, p. 116, 117 (4th edit.) 
 
 * Slacum V. Pomery, 6 Cranch, 221 ; 1 Virg. Revised Code, ch. 77, 
 
CH. XI.] PROCEEDINGS ON NON-PAYMENT. 535 
 
 § 408. In England, also, in particular cases, artificial 
 rules of the same sort have been adopted, either by 
 
 ^ 1, p. 113 ; Bayley on Bills, ch. 9, p. 383, note (o,) (by Phillips and 
 Sewall, Amer. edit. 1836.) Mr. Chancellor Kent has stated the present 
 rules existing in many of the American Slates, in 3 Kent, Comm. Lect. 
 44, p. 116 to .121 (4th edit.) He says: "In this country, a different 
 practice from that of reexchange was introduced, while we were English 
 Colonies, and it has continued to this day. Our usages on this subject 
 form an exception to the Commercial law of Europe. In New York, the 
 rule had uniformly been to allow twenty per cent, damages on the re- 
 turn of Foreign Bills protested for non-acceptance or non-payment ; and 
 the damages were computed on the principal sum, with interest on the 
 aggregate amount of the Bill and damages, from the time that notice of 
 the protest was duly given to the Drawer or Indorser. The mercantile 
 usage was, to consider the twenty per cent, an indemnity for consequen- 
 tial damages, and to require the Bill to be paid at the rate of exchange at 
 the time of return, or a new Bill to be furnished upon the same princi- 
 ples. But the Supreme Court considered the twenty per cent, to be in lieu 
 of damages in case of reexchange, and the demand, with that allowance, 
 was to be settled at the par of exchange. This doctrine was overturned 
 by the Court of Errors, and the Holder was held to be entitled to recover, 
 not only the twenty per cent, damages, together with interest and charges, 
 but also the a,mount of the Bill, liquidated by the rate of exchange, or 
 price of Bills on England, or other place of demand in Europe, at the 
 time of the return of the dishonored Bill, and notice to the party to be 
 charged ; and this rule was subsequently followed in the courts of Jaw. 
 The rate of damages on Bills drawn and payable within the United Slates 
 or other parts of North America, was subsequently, in 1819, regulated in 
 New York by statute, and the damages fixed at five, or seven and a 
 half, or ten per cent., according to the distance or situation of the 
 place on which the Bill was drawn. But, by the new Revised Statutes 
 which went into operation on the 1st of January, 1830, the damages on 
 Bills, foreign and inland, were made the subject of a more extensive regu- 
 lation. They provide, that, upon Bills drawn or negotiated within the 
 State, upon any person, at any place within the six States east of New 
 York, or in New Jersey, Pennsylvania, Ohio, Delaware, Maryland 
 Virginia, or the District of Columbia, the damages to be allowed 
 and paid, upon the usual protest for non-acceptance or non-payment 
 to the Holder of the Bill, as purchaser thereof, or of some interest 
 therein, for a valuable consideration, shall be three per cent, upon the 
 principal sum specified in the Bill ; and upon any person at any place 
 within the States of North Carolina, South Carolina, Georgia, Kentucky 
 
536 ' BILLS OF EXCHANGE. [OH. XI. 
 
 contract or usage. Thus, in the commerce between 
 England and India, it is not customary to make a dis- 
 
 and Tennessee, five per cent. ; and upon any person in any other State or 
 Territory of the United Slates, or at any other place on, or adjacent to 
 this continent, and north of the equator, or in British or foreign posses- 
 sions in the West Indies, or elsewhere in the Western Atlantic Ocean, 
 or in Europe, ten per cent. The damages are to be in lieu of interest, 
 charges of protest, and all other charges incurred previous to, and at the 
 time of giving notice of non-acceptance or non-payment. But the Holder 
 will be entitled to demand and recover interest upon the aggregate amount 
 of the principal siitn specified in the Bill, and the damages, from the 
 time of notice of the protest fur non-acceptance, or notice of a demand 
 and protest for nonpayment. If the contents of the Bill be expressed 
 in the money of account of the United States, the amount due thereon, 
 and the damages allowed fur the non-payment, are to be ascertained and 
 determined without reference to the rale of Exchange existing between 
 New York and the place on which the Bill is drawn. But, if the con- 
 tents of the Bill be expressed in the money of account or currency of 
 any foreign country, then the amount due, exclusive of the damages, la 
 to be ascertained and determined by the rate of exchange, or the value of 
 such foreign currency at the time of the demand of payment. The laws 
 and usages of the other States vary essentially on the subject of damages 
 on protested Bills. In some cases the regulations of States approximate 
 to each other, while in others they are widely different. In some. cases 
 the law or rule is unlike, but the result is nearly similar ; while, between 
 other Stales the result varies from four and a half to fifteen per cent. In 
 Massachusetts, the usage was to recover the amount of the protested Bill 
 at the par of exchange and interest, as in England, from the time pay- 
 ment of the dishonored Bill was demanded of the Drawee, and the charges 
 of the protest, and ten per cent, damages in lieu of the price of exchange. 
 But this rule has been changed by statute, in 18^5, 1835, and 1837 ; and 
 Bills drawn or indorsed in that State, and payable without the limits of 
 the United States, and duly protested for non-acceptance or non-payment, 
 are now settled at the current rate of exchange and interest, and five per 
 cent, damages ; and if the Bill be drawn upon any place beyond the Cape 
 of Good Hope, twenty per cent, damages. The rate of damages in Mas- 
 sachusetts on inland Bills, payable out nf the Slate, and drawn or indorsed 
 within the State, and duly protested for non-acceptance or non-payment, 
 is two per cent, in addi.tion to the contents of the Bill, with interest and 
 costs, if payable in any other New England State, or New York ; and 
 three per cent, if payable in New Jersey, Pennsylvania, Delaw.are, and 
 Maryland ; and four per cent, if payable in Virginia, District of Columbia, 
 
CH. XI.] PEOCEEDINGS ON NON-PAYMENT. 537 
 
 tinet charge of reexchange ; but it has been the con- 
 stant course, with respect to Bills for payment of pago- 
 
 North Carolina, South Carolina, or Georgia ; and five per cent, if payable 
 in any other of the United Slates, or the Territories thereof. The rule of 
 damages in Connecticut on Bills returned protested, and drawn on any 
 person in New York, is two per cent, upon the principal sum specified in 
 the Bill ; in New Hanapshire, Vermont, Maine, Massachusetts, Rhode 
 Island, New York, (city of New York excepted,) New Jersey, Pennsyl- 
 vania, Delaware, Maryland, Virginia, or Territory of Columbia, three per 
 cent.; in North Carolina, South Carolina, Ohio, or Georgia, five per cent.; 
 in any other part of the United States, eight per cent, upon such principal , 
 sum, and to be in lieu of interest and all other charges, and without any 
 reference to the rate of exchange. In Rhode Island the rule formerly was, 
 according to the Revised Code in 1776, on Bills returned from beyond 
 ' sea protested for non-acceptance or non-payment, ten per cent, damages, be- 
 sides interest and costs. In Pennsylvania, the rule for a century past, was 
 twenty per cent, damages, in lieu of reexchange; but by statute, in 1831, 
 five per cent, damages were allowed upon Bills drawn upon any person in 
 any other of the United States, except Louisiana ; if on Louisiana, or any 
 other part of North America, except the Northwest Coast and Mexico, 
 ten per cent. ; if on Mexico, the Spanish Main, or the islands on the coast 
 of Africa, fifteen per cent. ; and twenty per cent, upon protested Bills on 
 Europe, and twenty-five per cent, upon other foreign Bills, in lieu of all 
 charges except the protest, and the amount of the Bill is to be ascertained 
 and determined at the rate of exchange. ^In Maryland the rule, by sta- 
 tute, is fifteen per cent, damages, and the amount of the Bill ascertained 
 at the current rate of exchange, or the rate requisite to purchase a good 
 Bill of the same time of payment upon the same place. " In Virginia and 
 South Carolina the damages, by statute, are fifteen per cent. The dama- 
 ges on Bills drawn, in the State of Alabama, on any person resident 
 within the State, are ten per cent., and on any person out of it, and 
 within the United States, are fifteen per cent. ; and on persons out of the 
 United States, twenty per cent, on the sum drawn for, together with inci- 
 dental charges and interest. In Louisiana, in 1838, the rate of damages 
 upon the protest for non-acceptance or non-payment of Bills of Exchange, 
 drawn on, and payable in foreign countries, was declared, by statute, to be 
 ten per cent. ; and in any other State in the United States, five per cent., 
 together with interest on the aggregate amount of principal and damages. 
 "On protested Bills, drawn and payable within the United States, the 
 damages include all charges, such as premiums, and expenses, and inte- 
 rest on those damages, but nothing for the difference of exchange. In 
 North Carolina, by statute, in 1828, damages on protested Bills drawn or 
 
538 BILLS OF EXCHANGE. [CH. XL 
 
 das in the East Indies, and returned protested, to allow 
 at the rate of ten shillings per pagoda, and five per 
 
 indorsed in that State, and payable in any other part of the United States, 
 except Louisiana, are six per cent. ; payable in any other part of North 
 America, except the West India Islands, ten per cent. ; payable in South 
 America, the African Islands, or Europe, fifteen percent.; and payable 
 elsewhere, twenty per cent. In Kentucky, the damages on Foreign 
 Bills protested for non-acceptance or non-payment, are ten per cent. 
 The damages in Tennessee, by statute, in 1830, on protested Bills, over 
 and above the principal sum, and charges of protest, and interest on the 
 principal sum, damages, and charges of protest from the time of notice, 
 are three per cent, on the principal sum, if the Bill be drawn upon any 
 jlerson in the United States ; and fifteen per cent, if upon any person in 
 any other place or State in North America bordering on the Gulf of 
 Mexico or in the West Indies ; and twenty per cent, if upon a person in 
 any other part of the world. These damages are in lieu of interest and 
 all other charges, except the charges of protest, to the time of notice of 
 the protest and demand of payment. The damages in Georgia, by sta- 
 tute, in 1827, on Bills drawn on a person in another State, and protested 
 for non-payment, are five per cent. ; and on foreign Bills protested for 
 non-payment, are ten per cent., together with the usual expenses and in- 
 terest, and the principal to be settled at the current rate of exchange- 
 The dama<;es in Indiana and Illinois, on foreign Bills, are ten per cent. ; 
 and on Bills drawn on any person out of the State and within the United 
 States, are five per cent., in addiiion to the costs and charges. In Missis- 
 sippi, the damages on inland Bills protested for nun-payment are five per 
 cent. ; if drawn on any person resident out of the United States, ten per 
 cent. In Missouri, the damages on Bills of Exchange drawn or negoti- 
 ated within the State, and protested for non-acceptance or non-payment, 
 as against the Drawer and Indorser, are four per cent, on the principal 
 sum ; if drawn on any person out of the State, but within the United 
 States, ten per cent. ; if out of the United States, twenty per cent. ; the 
 same rale of damages as against the Acceptor on non-payment. The 
 inconvenience of a want of uniformity in the rule of damages, in the 
 lawsof the several States, is very great, and has been strongly felt. 
 The mischiefs to commerce, and perplexity to our merchants, resulting 
 from such discordant and shifting regulations, have been ably, justly, 
 and frequently urged upon the consideration of Congress ; and the 
 right of Congress to regulate, by some uniform rule, the rate and rule 
 of recovery of damages upon protested foreign Bills, or Bills drawn in 
 one State upon another, under the power in the Constitution, ' to re- 
 gulate commerce with foreign nations, and among the several States,' 
 
CH. XI.J PKOCEEDINGS ON NON-PAYMENT. 539 
 
 cent, after the expiration of thirty days from the notice 
 to the defendant of the Bill's dishonor, which includes 
 interest, exchange, and all other charges ; and, by an 
 arrangement entered into in 1822 between certain per- 
 sons connected with the East India trade, twenty-five 
 per cent, appears to have been considered a proper 
 sum. But that arrangement could, of course, only bind 
 the parties to it.^ And it seems that, upon Bills drawn 
 in the West Indies upon England, the rate of damages 
 is ten per cent, in lieu of reexchange.® 
 
 and the expediency of the exercise of tliat right, have heen well, and 
 I think conclusively shown, in the official documents which have been 
 prepared on that subject.". See also Mr/ Phillips's and IMr. Sewall's 
 edition of Bayley on Bills, ch. 9, p. a'^S, note {p ) (Amer. edit. 1836.) 
 The mode of adjustment of the amount due upon Bills of Exchange dififers, 
 as we have seen, in New York, from the rule adopted in Massachusetts. 
 In New York, the principal of the Bill is ascertained by the rate of ex- 
 change, and is included in the computation. In Massachusells, the par of 
 exchange is taken. 3 Kent, Comm. Lect. 44, p. 117 (4th edit.) ; Grim- 
 shaw V. Bender, 6 Mass. R. 157, 161. 
 
 1 Ante, ^ 399, and note ; Chitly on Bills, Ft. 2, ch. 6, p. 668 (8lh edit. 
 1833) ; Bayley on Bills, ch. 9, p. 354, ;55 (5lh edit. 1830) ; Auriol v. 
 Thomas, 2 Term R. 52. 
 
 2 Ante, ^ 399, and note ; Chilty on Bills, Ft. 2, ch. 6, p. 665, 666 (8th 
 edit. 1833) ;. Gantt v. Mackenzie, 3 Camp. R. 51. 
 
540 BILLS OF EXCHANGE. [CH. XIL 
 
 CHAPTER XIL 
 
 PAYMENT, AND OTHER DISCHARGES OF PARTIES TO BILLS 
 OF EXCHANGE. 
 
 § 409. Having thus ascertained the rights and duties 
 of the Holder against the antecedent parties to Bills, 
 upon dishonor by non-payment thereof at maturity, let 
 us now pass to the consideration of the Payment of 
 Bills, and of other Discharges, which will extinguish 
 the rights and demands of the Holder, or of other 
 parties who would otherwise he entitled to the benefit 
 thereof. 
 
 § 410. In the first place, as to payment by the Ac- 
 ceptor. It is obvious, from what has been already said, 
 that it is his primary duty to pay the Bill, and, by his 
 due payment thereof, he discharges all the other par- 
 ties thereto from liability on the Bill, either as Draw- 
 ers, or Indorsers, or Guarantors, if the payment is 
 rightfully made by him to the Holder without any 
 knowledge of any infirmity in the title of the latter, 
 and, if the names of the parties on the Bill through 
 whom the Holder derives his title, are genuine, and 
 not founded upon forgeries.^ But there may be infirm- 
 ities of various sorts, which may make a payment by 
 the Acceptor, to the Holder, no discharge or extin- 
 guishment of the claim against him, founded on his 
 acceptance and payment thereof. 
 
 1 Chitty on Bills, ch. 9, p. 425, 426 (8th edit. 1833) ; Bayley on Bills, 
 ch. 8, p. 318 to 323 (5th edit. 1830) ; Pardessus, Droit Coram. Tom. 2, 
 art. 399, 401; Pothier de Change, n. 168, 169, 
 
CH. XII.J PAYMENT AND OTHER DISCHAKGES. 541 
 
 § 411. Let us consider some of these infirmities, 
 which may or may not affect the title of the Holder, 
 and the duties and obligations of the Acceptor. First, 
 then, if the signature of the Drawer is forged, and the 
 Bill is accepted by the Acceptor, he will be bound 
 thereby to pay the same to a lonafide Holder, having 
 no notice of the forgery ; and, if he has paid it, he can- 
 not recover back the money, although the forgery is 
 established by the most conclusive evidence ; for, by 
 accepting the Bill, he, by implication, in favor of such 
 a Holder admits its genuineness, and is not permitted 
 to dispute it afterwards, although he can have no re- 
 course against the Drawer for any reimbursement for 
 his payment.' This doctrine proceeds upon the intel- 
 ligible ground, first, that the Drawee, before he accepts 
 is bound, as a matter of duty, to ascertain, whether the 
 signature of the Drawer is genuine or not ; and next, 
 that, where one of two innocent persons must suffer, he, 
 who has caused a misplaced confidence, or has mislead 
 another, or has omitted his duty, shall suffer, rather 
 than the other party.'' The same doctrine applies to 
 an Acceptor supra protest, as to the signatures of the 
 parties, for whose honor he accepts.^ 
 
 \ 412. But it is said, that the like doctrine does not 
 apply to the Acceptor in the case of a forgery of the 
 signature of the Payee, or of any other Indorser, be- 
 
 1 Ante, § 113, 262 ; Chitty on Bills, Ft. 1, ch. 7, p. 336, 337 (8th edit. 
 1833) ; Id. Ft. 2, ch. 5, p. 625, 628, 629, 635 ; Bayley on Bills, ch. 8, p. 
 318 to 330 {5th edit. 1830) ; Price v. Neale, 2 Burr. R. 1354 ; Smith v. 
 Mercer, 6 Taunt. R. 76 ; Bank of U. States v. Bank of Georgia, 10 
 Wheat. R. 333 ; Levy v. Bank of U. States, 1 Birm. R. 27. 
 
 2 1 Story on Eq. Jurisp. ^ 386, 387. 
 
 3 Bayley on Bills, ch. 10, p. 320 (5th edit. 1830) ; Wilkinson v. John 
 stone, 3 Barn. & Cressw. 42S. 
 
 B. OF EX. 46 
 
542 BILLS OF EXCHANGE. [CH. XIL 
 
 cause the Acceptor is not presumed to know their sig- 
 natures, or to vouch for their genuineness.' And it 
 makes no difiference in this particular, whether the in- 
 dorsement is on the Bill at the time of the acceptance 
 or not.^ Neither does the acceptance admit the sig- 
 nature of the Drawer, when he is an Indorser also, 
 although the Bill is payable to the Drawer's order, and 
 his signature, as Drawer, is admitted.^ Nor does the 
 acceptance admit the authority of an agent to indorse 
 a Bill in the name of the Drawer, although the Bill is 
 drawn by the same agent, in the name of his principal 
 by procuration.* The same reason prevails in each of 
 these cases ; for the acceptance admits only the genu- 
 ineness of the Drawer's signature and that of his agent 
 and his competency and authority to draw ; but the 
 act of indorsement is very different from the act of 
 drawing, and may not have been contemporaneous, and 
 the Acceptor looks only to the signature of the Drawer.' 
 The distinction between these cases is certainly very 
 nice, and perhaps does not stand upon a very satisfac- 
 tory ground, where the indorsement is on the Bill at 
 the time, when it is accepted. It. seems, however, well 
 established. But every Indorser, by indorsement of a 
 Bill, admits the genuineness of the signature of the 
 
 1 Ante, ^ 113, 262, 263, 264 ; Bayley on Bills, ch. 11, p. 464, 465 (5th 
 edit. 1830) ; Smith v. Chester, 1 Term R. 654 ; Oarrick v. Vickery, Doug. 
 R. 630. See Coggiil v. American Exchange Bank, 1 Comstock, R. 113. 
 
 a Ibid. 
 
 3 Bayley on Bills, ch. 11, p. 465 (5th edit. 1830); Robinson ». Yar- 
 row, 7 Taunt. R. 455 ; Canal Bank v. Bank of Albany, 1 Hill, N. Y. Rep. 
 287. 
 
 * Ibid.; Bayley on Bills, ch. 8, p. 321 to 324 (5th edit. 1830). 
 
 ^ Smith V. Chester, 1 Term R. 654. 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 543 
 
 Drawer, and his ability to draw the Bill, and also the 
 signature and ability of every antecedent Indorser.' 
 
 § 413. Secondly. If the Holder, before or since the 
 acceptance, has become bankrupt, and the fact is known 
 to the Acceptor, payment by him to the Holder will be 
 invalid, and not binding upon the assignees.® So if the 
 Acceptor knows, that the Holder is a mere Agent, and 
 that his authority has been revoked ; ^ but if he does 
 not know of the revocation, then the payment is good.'* 
 If the Holder is dead, but his death is unknown, pay- 
 ment to his agent, previously appointed, will, according 
 to Pothier, be valid, although the death operates as a 
 revocation of the authority of the agent.* But it may 
 be doubtful, whether, according to our law, the payment, 
 in such a case, would not be treated as a nullity ; since 
 the agent's power is absolutely gone by the death of 
 his principal, and the receipt by him, for his principal, 
 is a receipt by a person, who acts without title or 
 authority.^ But the death of the Drawer, or of an 
 Indorser, is no objection to the payment of a Bill by 
 the Acceptor, where the party is a Holder for value.'' 
 Indeed, it may be laid down, as a general rule, that the 
 
 1 Ante, § 111, 225, 262, 263 ; Bayley on Bills, ch. 11, p. 462, 463 (5th 
 edit. 1830) ; Lambert v. Pack, 1 Salk. R. 127, 1 Ld. Rayra. 483; Critcii. 
 low V. Parry, 2 Camp. R. 182. 
 
 2 Ciiilty on Bills, ch. 9, p. 426 to 428, 430 (8th edit. 1833) ; Bayley on 
 Bills, ch. 5, ^ 2, p. 136, 137 (5th edit. 1830) ; Id. ch. 8, p. 314, 315. 
 
 3 Chitiy on Bills, ch. 9, p. 425, 426 (8ih edit. 1833.) 
 1 Pothier de Change, n. 168. 
 
 5 Ibid. ; Story on Agency, § 470 to 473, 491 to 494. 
 
 6 See Story on Agency, ^ 495 to 499. 
 
 "> Chilly on Bills, ch. 7, p. 309 (8th edit. 1833) ; Id. ch. 9, p. 425, 426 ; 
 Bayley on Bills, ch. 8, p. 314, 315 (5th edit. 1830); Tate v. Hilbert, 
 2 Ves. jr. 115, 116 ; Hammonds v. Barclay, 2 East, R. 227, 235, 236; 
 Cutts V. Perkins, 12 Mass. R. 206. 
 
544 BILLS OF EXCHANGE. [CH. XIL 
 
 Acceptor is bound to pay the Bill only to the real 
 owner thereof, or to his agent or representative, if he 
 knows the true state of the facts.' But a payment 
 made by the Acceptor by mistake, to a person who has 
 no title, may under certain circumstances be no exone- 
 ration of the Acceptor, although he has no knowledge 
 of the actual state of the facts. Thus, by our law, if 
 the owner or Holder be dead, a payment to a person 
 who assumes to be his personal representative will not 
 be valid, even if .the fact that he is not so is unknown 
 to the Acceptor.^ So, payment made to a single 
 woman, who is the Holder of the Bill after her mar- 
 riage, will not, it should seem, exonerate the Acceptor 
 according to our law, even if the Acceptor does not 
 know of her mrrriage, although it may be different in 
 the foreign law.^ But payment of a Bill to a minor to 
 whom it is expressly made originally payable, or made 
 payable by indorsement, will be valid if he has no 
 guardian, or if he has a guardian, and that fact is un- 
 known ; but, if the fact of guardianship be known, a 
 valid payment can only be made to the guardian.* 
 
 § 414. Pothier admits that payment to a minor hav- 
 ing a tutor, and taking the Bill by devolution, upon 
 the death of his parent, is not good unless it has been 
 
 1 Chitty on Bills, ch. 9, p. 498, 429 (8th edit. 1833) ; Pothier de Change, 
 n. 164 to 168 ; Pardessus, Droit Comm. Tom. 2, art. 399 ; Bayley on 
 Bills, ch. 8, p. 314, 315 (5ih edit. 1830.) 
 
 2 Chitty on Bills, ch. 9, p. 428 (8ih edit. 1833.) 
 
 3 Chilly on Bills, ch. 6, p. 235 (8th edit. 1833) ; Id. ch. 9, p. 428 ; 
 Bayley on Bills, ch. 5, § 2, p. 135 (5th edit. 1830) ; Id. ch. 8, p. 315 ; 
 Pothier de Change, n. 158 ; Scaccia, de Comm. § 2, Gloss. 6, p. 384, n. 
 340. 
 
 i Chitty on Bills, ch. 9, p. 428 (8th edit. 1833) ; Bayley on Bills, ch.5, 
 § 2, p. 136, 137 (5th edit. 1830) ; Id. ch. 8, p. 315 ; Pothier de Change, 
 n. 166, 168. 
 
CH. XII.J PAYMENT AND OTHER DISCHARGES. 545 
 
 turned to his profit; but that payment ought to be 
 made to his tutor. But if the Bill be payable to the 
 minor, he holds that payment made to him is good as 
 against the Drawer, according to the maxim. Quod 
 jussu alterius solvitur, perinde est ac si ipsi solutum esset} 
 He holds the same rule to be true where a Bill is pay- 
 able to a single woman who afterwards marries, if her 
 marriage is unknown to the Acceptor ; but, if known, 
 he can safely pay only to the husband.® If a Bill be 
 payable to A. or order, for the use of B., payment 
 should be made to A., or to his order, and not to B., 
 who is merely the cestui que ti'ust? 
 
 ^ 415. However, in ordinary cases, where a Bill is 
 genuine in all respects, and with a genuine indorse- 
 ment in blank by the proper owner or Holder, the pos- 
 session of it is sufficient to entitle the person producing 
 it to receive payment thereof. For such possession is 
 primA fade or presumptive evidence, that he is the 
 proper owner or lawful possessor of the Bill.* And, 
 indeed, if this doctrine did not prevail, the Acceptor 
 would, in many cases, pay at his peril, where the true 
 owner or Holder is unknown to him ; and endless em- 
 barrassments would grow out of the negotiations of 
 Bills, which, in a vast variety of cases, pass by mere 
 delivery from hand to hand, where there is a blank in- 
 dorsement by the lawful owner or Holder thereof. It 
 
 1 Polhier de Change, n. 166 ; Dig. Lib. 50, tit. 17, 1. 180. 
 3 Puthier de Change, n. 166. 
 
 3 Chilly on Bills, ch. 9, p. 428 (Sih edit. 1833) ; Bayley onBills, ch.5, 
 § 2, p. 134 (5ih edit. 1830) ; Evans v. Cramlington, 2 Vent. R. 307, 
 Skinner, R. 264. 
 
 4 Chitiy on Bills, ch. 9, § 2, p. 425, 428, 429 (8th edit. 1833) ; Ante, 
 §193,194; BankofU. States u.U. States, 2 How. Sup. Ct. R. 711.; Du- 
 gan V. U. States, 3 Wheat. R. 172 j Story on Promis. Notes, § 453. 
 
 46 • 
 
546 BILLS OF EXCHANGE. [CH. XH. 
 
 is, therefore, for the security of all persons that the 
 rule is adopted, to prevent innocent Holders from being 
 compelled to establish their titles before the Acceptor 
 will be bound to pay the Bill ; and they may be bond 
 fide purchasers and Holders by mere delivery, without 
 the knowledge, or means of knowledge, of the persons, 
 through whose hands the Bill has passed by delivery, 
 after such a blank indorsement. 
 
 § 416. Hence it is, that if the Acceptor pays a Bill, 
 which has been indorsed in blank, and is afterwards 
 lost or stolen, and then gets into the hands of a hondfide 
 Holder, for a valuable consideration, the payment to 
 such Holder will be perfectly valid, and protected by 
 law.' But, if paid under circumstances which establish 
 a want of good faith on the part of the Acceptor, the 
 payment will be nugatory.® It was formerly thought, 
 that if payment was made to a Holder under circum- 
 stances of suspicion, or which might properly put the 
 Acceptor upon further inquiry, that would take away 
 his right to be protected by such payment.^ This doc- 
 trine has been since qualified, and, indeed, overruled, as 
 having a direct tendency to obstruct the negotiation of 
 all Bills payable to Bearer, or negotiated by delivery 
 after a blank indorsement, since their circulation would 
 be materially affected thereby, if not, in a great mea- 
 sure stopped.'* But the reasonable doctrine, now esta- 
 
 1 Chitty on Bills, ch. 9, p. 429, 430 (8th edit. 1833) ; Pothier de Change, 
 n. 168 ; Bayley on Bills, ch. 5, § 2, p. 130, 131 (5th edit. 1830) ; Id. ch. 
 13, p. 524, 531 ; Anon. 1 Ld. Raym. 738 ; Miller v. Race, 1 Burr. R. 
 452 ; Grant v. Vaughan, 3 Burr. R. 1516. 
 
 2 Ibid. 
 
 S Chitty on Bills, ch. 9, p. 429, 430 (8th edit. 1833) ; Bayley on Bills, 
 ch. 12, p. 524 to 631 (5th edit. 1830.) 
 
 4 Down i>. Hailing, 4 Barn. & Cressw. 330 ; Gill v. Cubitt, 3 Barn. & 
 Ciessw. 466 ; Ante, ^ 193, 194 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 547 
 
 blished, is, that nothing short of fraud, not even gross 
 negligence, if unattended with mala fides, ou the part of 
 the Acceptor, or other party paying a Bill, will invali- 
 date the payment, so as to take away the rights founded 
 thereon.' 
 
 § 417. In order to make a payment by the Acceptor 
 good and binding upon all the other parties to the Bill, 
 it should be made at the maturity of the Bill, and not 
 before ; for, although, as between the real and land fide 
 Holder and the Acceptor, the payment, whenever made, 
 and however made, will be a conclusive discharge from 
 the obligation of the Bill; yet, as to third persons, it 
 may be far otherwise ; for payment means payment in 
 due course, and not by anticipation.^ If, therefore, the 
 Acceptor should pay a Bill of Exchange, before it is 
 due, to any Holder, who should afterwards, and before 
 its maturity, indorse or pass the same to any subse- 
 quent bond fide Indorsee or other Holder, the latter 
 would still be entitled to full payment thereof from the 
 Acceptor, at its maturity ; for payment of the Bill be- 
 fore it becomes due, is no extinguishment of the debt 
 as to such persons.^ The same doctrine prevails in the 
 French Law ; * and it will apply to the case where the 
 Holder is a mere agent of the real owner, and his au- 
 
 1 Crook V. Jadis, 5 Barn. & Adolph; 909 ; Backhouse v. Harrison, 5 
 Barn. & Adolph. 1098 ; Goodman v. Harvey, 4 Adolph. & Ellis, R. 870 ; 
 Usher i-. Rich, 10 Adolph. & Ellis, R. 784 ; 1 Selw. Nisi Prius, Dig. p. 
 347 (1 0th edit. 1843.) 
 
 2 Chilty on Bills, oh. 9, p. 428, 431 (8th edit. 1833) ; Burbridge v. 
 Manners, 3 Camp. R. 193. 
 
 3 Chitty on Bills, ch. 6, p. 286 (8th edit. 1833) ; Bayley on Bills, oh. 8, 
 p. 326 (5th edit. 1830,) citing De Silva v. Fuller, MSS. ; Marius on Bills, 
 p. 31. 
 
 4 Pardessus, Droit Comm. Tom. 3, art. 401. 
 
548 BILLS OF EXCHANGE. [CH. XII. 
 
 thority has been countermanded before the Bill is due ; ' 
 and, a fortiori, where the Bill is presented and paid to 
 a mala fide Holder, before it is due. 
 
 § 418. Cases sometimes occur, where the money 
 or current coin, for which the Bill is drawn, and in 
 which it is payable, is depreciated at the place of pay- 
 ment, between the time of the drawing of the Bill and 
 the payment thereof; and in such cases the question 
 has been made. Whether the value should be paid, as it 
 was at the time, when the Bill is drawn, or when it is 
 payable. And it has been held, that it is to be paid 
 according to the value at the time when the Bill was 
 drawn.^ Pardessus holds the same doctrine upon prin- 
 ciples of international law, and comity, and justice, in- 
 sisting that the Payee, in the case stated, looks solely 
 to the value of the money or the Bill, at the time when 
 it is drawn, and bargains for that same value from the 
 Acceptor.^ 
 
 § 419. Payment should Ordinarily be made in money 
 or coin by the Acceptor, according to its true value 
 and denomination in the Bill, and the Holder is not 
 bound to accept anything but such money or coin, at 
 its true and proper value.* Where the Holder receives 
 a Promissory Note or Bill in payment of a debt, it is not 
 an absolute but conditional payment only, unless other- 
 wise agreed by the parties ; but it only suspends the 
 right to recover the original debt until the credit has 
 
 1 Marius on Bills, p. 31 ; Bayley on Bills, ch. 8, p. 326 (5th edit. 
 1830.) 
 
 2 Chilly on Bills, oh. 9, p. 433 (8lh edit. 1883.) Qutere, Whether 
 there migtit not be grounds to contend that the Acceptoi was bound only 
 fur the value at the time of his acceptance? 
 
 3 Parilessus, Droit Comm. Tom. 5, art. 1495. 
 
 1 Chitty on Bills, ch. 9, p. 433 (8th edit. 1833.) 
 
CH. Xn.] PAYMENT AND OTHER DISCHAEGES. 549 
 
 * 
 
 expired.' If the Holder be a mere agent, he has no 
 right to accept payment in goods, in lieu of money, 
 unless specially authorized so to do.^ If the Holder 
 accepts a draft or check on a bank or a banker, in pay- 
 ment of the Bill, it has been said that he is not obliged 
 to give up the Bill, before payment of the draft or 
 check, and, if he does, the Drawer and the Indorsers 
 are discharged thereby.^ If the Holder accepts such 
 
 1 Sayer v. Wagstaff, S Beavan, R. 415. ' 
 
 2 Ibid. ; Howard v. Chapman, 4 Carr. & Payne, R. 508. 
 
 3 Chitty on Bills, ch. 9, p. 433„434 (8th edit. 1833) ; Maiius on Bills, 
 p. 21, 22. See also Hansard ». Robinson, 7 Barn. & Cressw. 90. Mr. 
 Chitty (p. 433, 434) says : " Payment is frequently made by a draft on a 
 banker ; in which case, if the person receiving the draft do not use due 
 diligence to get it paid, the person from whom he received it and every 
 other party to the Bijl, will be discharged, but not otherwise, unless the 
 Holder expressly agreed to run all risks ; for a banker's check is not 
 money." From this language it might be inferred, that, if the Holder 
 took a draft on a banker, and presented it in due time, and it was dis- 
 honored, the Drawer and Indorsers, as well as the Acceptor, would still 
 remain liable on the Bill. There is no doubt that the Acceptor will. But, 
 upon, principle, the Drawer and Indorsers would be discharged ; fur, by . 
 their contract, payment should be made on the day of maturity, and in 
 money. From a subsequent passage (p. 434) it would seem, that Mr. 
 Chitty did not mean to inculcate a different opinion. He there says : 
 " When payment is made by the Drawee giving a draft on a hanker, 
 Marius advises the Holder not to give up the Bill until the draft be paid. 
 Formerly the usage in London was otherwise when the Drawee was a 
 respectable person in trade ; and in one case it was decided, that a banker 
 having a Bill remitted to him to present for payment, was not guilty of 
 negligence in giving it up upon receiving from the Acceptor a check upon 
 another banker for the amount payable the same day, although such check 
 be afterwards dishonored ; but in a subsequent case it was considered that 
 the Drawer and Indorsers of a Bill would be discharged by the Holder's 
 taking a check from and delivering up the Bill to the Acceptor, in case 
 the check were not paid ; because the Drawer and Indorsers have aright to 
 insist on the production of the Bill, and to have it delivered up on payment 
 by them. If the Holder of a draft on a banker receive payment thereof 
 in the banker's notes instead of cash, and the banker fail, the Drawer of 
 the check will be discharged. But if a creditor, on any other account 
 than a Bill of Exchange, is offered cash in payment of his debt, or a check 
 
550 BILLS OF EXCHANGE. [CH. XIL 
 
 V 
 
 draft or check, it will, ordinarily, discharge the Drawer 
 and Indorsers, but it will operate, as to himself, as a con- 
 ditional payment only ; that is, if, upon presentment the 
 check is duly paid by the bank or banker. But, if the 
 draft or check is not presented for payment within area- 
 sonable time by the Holder, and then the bank or banker 
 fails, the Holder himself must bear the loss.^ If the 
 Holder receives bank-notes of a bank in payment then the 
 Drawer and Indorsers are discharged, and the Acceptor 
 also, if the bank had not then failed, although it should 
 afterwards fail, and become utterly insolvent.® But if 
 the bank has actually then failed, although unknown 
 to both partiop, the payment will not be deemed valid 
 in the bank-notes of such bank, unless the party re- 
 ceiving them has agreed to run the risk of their dis- 
 honor or of the insolvency of the bank.' 
 
 § 420. Where payment is duly made by an Accep- 
 tor, if he has not any funds of the Drawer, or other 
 person for whose accommodation he accepts the Bill, 
 he will be entitled to recover the amount from the 
 Drawer, or other party, for whose accommodation he 
 has made the acceptance. But a case has been put^ 
 where a Bill is drawn by A. and B., and both sign the 
 Bill, A. as principal, and B. as surety, whether the 
 
 upon a banker, from an asent of his debtor, and prefer the latter, this 
 does not discharge the debtor, if the check is dishonored, although the 
 agent fails, with a balance of his principal in his hands to a much greater 
 amount." 
 
 1 Bayley on Bills, ch. 7, ^ 1, p. 236 to 244 (5th edit. 1830) ; Id. ch. 9, 
 p. 364 to 369 ; Chilty on Bills, ch. 9, p. 434 (8th edit. 1833) ; Ante, 
 ^ 109, and note ; Ward ». Evans, 2 Ld. llaym. 930 ; Vernon v. Boverie, 2 
 Show. R. 296. 
 
 2 Ibid. ; Ante, § 111, and note, § 223, and note ; Fogg «. Savf yer, 9 
 New Hamp. R. 365. 
 
 3 Fogg V. Sawyer, 9 New Hamp. Rep. 365 ; Ante, § 225, and note. 
 
CH. XII.] PAYMENT AND OTHER DISCHAEGES. 551 
 
 Acceptor, upon payment of the Bill, if he is a mere 
 accommodation Acceptor without funds, has a right to 
 recover the amount from A. and B., or from A. only. 
 It has been held that he is entitled to recover from A. 
 only ; although it was admitted, in the same case, that 
 the Payee, and every other Indorser, might hold both 
 A. and B. responsible to them as joint Drawers.' But 
 it may be doubted whether this doctrine is sound, for 
 A. and B. must be both taken to be Drawers of the 
 Bill, as to all parties ; and the Acceptor may have 
 been induced to accept the Bill, quite as much as the 
 Payee or other Indorser to take it, because B. thereby 
 became liable to him as surety for its due payment, in 
 the character of a joint Drawer.^ 
 
 § 421. The Acceptor may also, where he stands in 
 the apparent relation to the Drawer of a mere accom- 
 modation Acceptor on the Bill, discharge the Drawer 
 from liability to him for the payment thereof, if, in 
 point of fact, he has made arrangements with the real 
 parties, for whose benefit the Bill has been drawn by 
 the Drawer, by which, in contemplation of receiving 
 funds from them, he has agreed to accept and pay the 
 Bill, and he has in fact received such funds before and 
 at the maturity of the Bill, but has applied them to 
 other purposes. Under such circumstances the Accep- 
 tor is held bound to apply the funds in discharge of 
 such accommodation Drawer, unless they have been 
 specially appropriated by the proper owners thereof to 
 different purposes.^ 
 
 1 Griffith V. Read, 21 Wend. R. 502. 
 
 2 See Brander v. Phillips, 16 Peters, R. 121 ; Chitty on Bills, ch. 9, 
 p. 449 (8ih edit. 1833.) 
 
 3 Bcandei v. Phillips, 16 Peters, K. 121. 
 
552 BILLS OP EXCHANGE. [CH. XII. 
 
 § 422. In respect to the Drawer and Indorsers, who 
 are liable to the Holder, upon the dishonor of the Bill, 
 it is obvious, that the debt of the Acceptor is not ex- 
 tinguished by their payment of the Bill ; and unless 
 he be a mere accommodation Acceptor for them, or 
 some one of them, the same rights will remain against 
 him in their favor, which the Holder himself had. If 
 he be a mere accommodation Acceptor, then, as to the 
 party for whom he has given such accommodation, he 
 will stand discharged ; but not as to any other parties 
 on the Bill. Where an antecedent Indorser duly pays 
 the Bill to the Holder, he thereby discharges all the 
 Indorsers subsequent to his own indorsement; but 
 those before it will still remain bound to him. 
 
 § 423. But every Indorser who is called upon to 
 take up a Bill by the Holder should perfectly assure 
 himself, not only that the party applying for payment 
 is the true and lawful Holder of the Bill, but also, that 
 there have not been any laches, either by such Holder, 
 or by any other party which will affect the merits of 
 the claim against him ; for, if there have been such 
 laches, by which the prior parties on the Bill have 
 been discharged, any Indorser who shall unneces- 
 sarily pay the Bill will not thereby revive the liability 
 of the prior parties, or be entitled to recover against 
 them.^ Thus, if a Bill has been refused acceptance or 
 payment, and due notice thereof has not been given by 
 the Holder, or other party to the Bill, so as to bind the 
 antecedent parties, payment by any subsequent In- 
 dorser who has not received due jiotice, will not revive 
 
 1 1 Chitty on Bills, ch. 9, p. 426 (8th edit. 1833.) See Konig o. Bayard, 
 1 Peters, R. 262. 
 
CH. XII.J PAYMENT AND OTHER DISOHAEGES. 553 
 
 the liability of the antecedent parties, but they will 
 remain discharged.-^ So, if the prior parties have not 
 received due notice of the dishonor of the Bill, and a 
 subsequent Indorser shall pay it to the Holder, from 
 which payment he is exonerated by the Holder's laches 
 in giving him notice a day too late, such payment wiU 
 not bind the prior parties ; for he has no right, by such 
 payment, to place them in a worse situation than they 
 would otherwise have been.® The same rule will 
 apply to payments by an Acceptor supra protest, where 
 there has not been a due presentment thereof to the 
 original Drawee at the maturity of the Bill, or a due 
 protest thereof if presented, or due notice thereof to 
 him before his payment ; for, under such circumstances, 
 he is not bound to pay the BiU ; and the antecedent 
 parties, who might otherwise be bound, will be dis- 
 charged thereby from all liability.^ 
 
 § 424. In the next place, let us consider, what other 
 acts of the Holder will constitute a good discharge of 
 the Drawers and Indorsers of a Bill, and of other per- 
 sons who are collaterally liable therefor. In respect to 
 the Acceptor, what has been already said of the cases 
 where he is discharged from his acceptance by opera- 
 tion of law, or by an agreement with the Holder, or by 
 a release, or by any other extinguishment of the debt, 
 will generally apply here, in cases of non-payment of 
 the Bill after acceptance.* But, in respect to the 
 
 1 Ibid. ; Roseoe v. Hardyg 12 East, R. 434. 
 s Turner v. Leach, 4 Barn. & Aid. 451. 
 
 3 Chitty on Bills, ch. 8, p. 378 to 381 (8th edit. 1833) ; Hoare u. Caze- 
 nove, 16 East, R. 398 ; Mitchell v. Baring, 10 Barn. & Cressw. 4 ; Eo~ 
 nig «. Bayard, 1 Peters, R. 250. 
 
 4 Ante, § 265 to 272 ; Chitty on Bills, ch. 9, p. 426 (8th edit. 1833.) 
 
 B. OF EX. 47 
 
554 BILLS OP EXCHANGE. [CH. XH. 
 
 other parties, other and very different considerations 
 may arise. 
 
 § 425. First, then, the Drawer and the Indorsers 
 will be discharged by any valid agreement between 
 the Holder and the Acceptor, founded upon a valuable 
 consideration, in which the Drawer and Indorsers re- 
 spectively do not concur, whereby time is given to the 
 Acceptor for payment of the Bill after it is due, or 
 payment is postponed to a future time, although the 
 Drawer and Indorsers have been fixed by due present- 
 ment, protest, and notice thereof.' For, otherwise, in 
 every such case, the Drawer and Indorsers would, with- 
 out their concurrence, be held liable for a period beyond 
 the terms of their contract, and migh^ suffer damage 
 thereby.® The rule may be laid down in more broad 
 
 1 Chitty on Bills, ch. 9, p. 441 to 444, 451, 452 (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 9, p. 338, 339 (5th edit. 1830) ; English v. Darley, 
 
 2 Bos. & PulH 61 ; Gould v. Robson, 8 East, R. 576; Clarke v. Devlin, 
 
 3 Bos. & Pull. 365; Smiths. Beckett, 13 East, R. 187; Hubbly v. 
 Brown, 16 Johns. R. 70; Wood v. Jefferson County Bank, 9 Cowen, R. 
 190 ; Brown v. Carr, 7 Bing. R. 608 ; Nolle v. His Creditors, 19 Mar- 
 tin, R. 9 ; Bank of United States v. Hatch, 6 Peters, R. 250 ; Nobdell v. 
 Niphler, 4 Miller, Louis. R. 294 ; Millaudon v. Arnous, 15 Martin, R. 
 596 ;' Mottram v. Mills, 2 Sandford Superior Ct. N. Y. K. 189. 
 
 2 Ibid. ; The general grounds of this doctrine are well stated by Mr. 
 Chief Justice Best, in delivering the opinion of the Court in Philpot«. Bri- 
 ant (4 Bing. B. 717, 719, 720, 721). His language is : "A creditor, by 
 giving further time for payment, undertakes, that he will not, during the 
 time given, receive the debt from any surety of the debtor ; for the instant 
 that a surety paid the debt he would have a right to recover it against his 
 principal. The creditor, therefore, by receiving his debt from the surety, 
 would indirectly deprive the debtor of the advantage that he had stipulated 
 to give him. If the creditor had received fAn his debtor a consideration 
 for the engagement to give the stipulated delay of payment of the debt, it 
 would be injustice to him, to force him to pay it to any one before the day 
 given. If, to prevent the surety from suing the principal, the creditor re- 
 fuses to receive the debt from the surety, until the time given to the debtor 
 for payment by the new agreement, the surety must be altogether dis- 
 
OH. XII.] PAYMEa^T AND OTHER DISCHARGES. 555 
 
 and general terms, that the Holder's discharging, or 
 giving time to, any of the parties on a Bill, ■will be a 
 
 charged, otherwise he might be in a situation worse than he was in by his 
 contract of suretyship. If he be allowed to pay the debt at the time when 
 he undertook that it should be paid, the principal debtor might have the 
 means of repaying him. Before the expiration of the extended period of 
 payment, the principal debtor might have become insolvent. A creditor, 
 by giving time to the principal debtor, in equity, destroys the obligation of 
 the sureties; and a court of equity will grant an injunction to restrain a 
 creditor, who has given further time to the principal, from bringing an 
 action against the surety. This equitable doctrine, courts of law have 
 applied to cases arising on Bills of Exchange. The Acceptor of a Bill of 
 Exchange is considered as the principal debtor ; all the other parlies to 
 the Bill are sureties, that the Acceptor shall pay the Bill, if duly presented 
 to him on the day it becomes due, and if he does not then take it up, that 
 they, on receiving notice of its non-payment, will pay it to the Holder. 
 If the Holder gives the Acceptor further time for payment, without, the 
 consent of the Drawer or Indorsers, he discharges them from all the 
 liability, that they contracted, by becoming parties to the Bill ; but delay, 
 in suing the Acceptor, will not discharge the Drawer or Indorsers, because 
 such delay does not prevent them from doing what, on receiving notice of 
 non-payment by the Acceptor, they ought to do ; namely, pay the Bill 
 themselves. The time of payment must be given by a contract, that is 
 binding on the Holder of the Bill; a contract, without consideration, is 
 not binding on him ; the delay in suing is, under such a contract, gratui- 
 tous ; notwithstanding such contract, he may proceed against the Accep- 
 tor, when he pleases, or receive the amount of the Bill from the Drawer 
 or Indorsers. As the Drawer and Indorsers are not prevented from taking 
 up the Bill, by such delay, their liability is not discharged by it ; to hold 
 them discharged, under such circumstances, would be to absolve them 
 from their engagements, without any reason for so doing. In the case of 
 the'partners of the Arundel Bank v. Goble, which is to be found in a note 
 to Chitty on Bills (p. 296,) and the accuracy of which note is proved by 
 my Brother's report to us, of what passed at the trial of the cause before 
 him, that point is decided. The Acceptor applied to the Holders far, ^Rt 
 dulgence of some months; they, in reply, wrote to the Acceptor,: i,i|iform7 
 ing him, that they would give him the time that he required, but)that-they 
 should expect interest. On a motion for a new trial, the Court of King's 
 Bench held, that, as no fresh security was taken from the Acceptor, the 
 agreement of the plaintiffs to wait was without consideration, and did not 
 discharge the Drawer. This is a stronger case than the present, ^n our 
 case, there is no agreement for any particular time, nor any confederation 
 for the giving the time, that was given to the Aceeptor." 
 
556 BILLS OF EXCHANGE. [CH. XII. 
 
 discharge of every other party, who upon paying the 
 Bill, would be entitled to sue the party, to whom such 
 discharge^ or time, has been given.^ If the party dis- 
 charged, or to whom time is given', be a mere accom- 
 modation party, it has been said, that the rights of the 
 Holder against the party, for whose accommodation 
 the Bill was drawn^ indorsed, or accepted, will not be 
 varied by such discharge or giving time ; for such party 
 does not sustain any injury thereby.^ But this doctrine 
 has been thought to be open to much question, and 
 can scarcely, in the present state of the authorities, be 
 deemed to be settled law.^ However this may be, 
 the general doctrine as to the effect of giving time has 
 been imported from Courts of Equity into Courts of 
 Law, as a fit and proper rule to govern in commercial 
 contracts of this nature ; * although it is unknown in 
 other cases of contract at the Common Law ; ^ and it 
 
 1 Bayley on Bills, ch. 9, p. 338, 339 (5th edit. 1830) ; Sargent v. Ap- 
 pleton, 6 Mass. R. 85. 
 
 2 Bayley on Bills, ch. 9, p. 338, 339, 340 (4th edit. 1830.) 
 
 3 See Post, § 432, and note. 
 
 i 1 Story, Eq. Jutisp. § 324 to 326 ; 2 Story, Eq. Jurisp. § 883 ; Samn- 
 ell V. Howarth, 3 Meriv. 272 ; Oakeley v. Pasheller, 10 Bligh. E. 548. 
 See also the cases collected in Pitman on Principal and Surety, ch. 5, p. 
 157, 171 to 187, where the principal authorities are collected. Combe v. 
 Woolfe, 8 Bing. H. 156. See also Boultbee v. Stubbs, 18 Ves. 20. 
 
 5 See Pitman on Principal and Surety, ch. 5, p. 182 to 187 ; Davey r. 
 Prendergrass, 5 Barn. & Aid. 187. In this case. Lord Tenterden said : 
 " Looking at the nature of the security in this case, it is impossible to say 
 that the sureties sustained any prejudice by what has taken place ; for, if 
 the first ^100 was not paid, immediate execution might have issued, and 
 it could not have been set aside. The ground, however, of my opinion in 
 this case, is, that general rule of the Common Law, which requires that 
 the obligation, created by an instriiment under seal, shall be discharged by 
 force of an instrument of equal validity. The operation of that rule is, 
 indeed, sometimes such, as to make it imperative upon a court of equity to 
 interpose and grant relief; but it by no means follows, that the rule of 
 
CH. XII.] PAyMENT AND OTHER DISCHARGES. 557 
 
 certainly has much intrinsic justice to recommend 
 
 it. 
 
 § 426. But the qualifications of the rule are impor- 
 tant to be considered. The agreement must be clear, 
 that further time is to be given for payment to the 
 Acceptor or other party ; it must be without the con- 
 currence of the other parties ; and it must also be 
 founded upon a valid and valuable consideration. If 
 either fact fail to be made out in proof, there is an end 
 of the defence ; for an agreement, without a valuable 
 consideration to support it, is void ; and mere acqui- 
 escence, or delay, without an agreement, is but a pas- 
 
 law is to be broken down, because a court, having jurisdiction of another 
 kind, will interpose, where there is a particular case, in which the rule of 
 law may be found to operate harshly. There is great objection to a conrt 
 of law taking upon itself to act as a court of equity, because they have not 
 the means of doing that full and ample justice which the particular case 
 may require. We ought not, therefore, to interpose in a matter, which 
 seems peculiarly to belong to the jurisdiction of a court of equity. If a 
 parol agreement is entered into, to give time to the parties, supposing it not 
 the case of a surety, but simply the case of a common bond, conditioned for 
 payment of money at a certam day, it will not prevent the party from pro- 
 ceeding at law immediately, whatever the consideration for the delay may 
 be. And, if that be so, how can the giving of time to a third person, by 
 such an agreement, prevent the obligee of the bond from proceeding at 
 law against the surety? There may, indeed, be such a consideration for 
 the agreement, as may induce a court of equity to direct, that the party 
 shall not proceed to enforce his remedy at law. But a parol agreement 
 of this nature can never operate to control the obligation of this bond in 
 a court of law. The decisions which have taken place in the courts of 
 equity, in cases of this nature, have always, as I understand them, pro- 
 ceeded on the notion, that, at law, the thing prayed for could not be 
 done. Bills of Exchange stand upon a very diflferent footing ; there the 
 Law Merchant operates, and the courts of law decide upon them with re- 
 ference to that law. Guaranties for the payment of debts are not, in 
 gener-al, instruments under seal, and there is no strict technical rule, 
 which, as to them, prevents a court of law from looking to the real justice 
 of the case." 
 
 47* 
 
558 BILLS OP EXCHANGE. [CH. XII. 
 
 sive operation, and rests solely in the pleasure of the 
 Holder, who is not bound to active measures, after the 
 other parties to the Bill are fixed by due notice.' So, 
 also, if the other parties concur in granting the delay, 
 and in the agreement for that purpose, they can have 
 no ground to complain, that it is to their injury ; for 
 Volenti non fit injuria? The same rule will prevail, as 
 
 1 Chitty on Bills, ch. 9,p. 442 to 444, 446, 447 (8th edit. 1833) ; Phil- 
 pot «. Btiant, 4 Bing. K. 711 ; MeLemore v. Powell, 12 Whe'aton, R. 
 554 ; Crawford v. Millspangh, 13 Johns. K. 87 ; 1, Story, Eq. Jurisp. §324 
 to 326 ; 2 Story, Eq. Jurisp. ^ 883 ; Price v. Edmonds, 10 Barn. & 
 Cressw. 578 ; Burrill v. Smith, 7 Pick. R. 291 ; Wild v.' Bank of Passa- 
 maquoddy, 3 Mason, 505. Upon this subject, Mr. Chitty says : " There 
 is no obligation of active diligence, on the part of the Holder, to sue the 
 Acceptor or any other party, and he may be passive, and forbear to sue as 
 long as he chooses ; but he must not so agree to give time to the Accep' 
 tor, as to preclude himself from suing him, and suspend his remedy against 
 him, in prejudice of the Drawer and Indorsers. This rule is founded on 
 the principle, that the Holder by entering into a binding engagement to 
 give time to the Acceptor, rendei;s him less active in endeavoring to satisfy 
 the Bill, than he probably would otherwise be, if he continued liable to 
 an immediate action, at the suit of the Holder; besides, if a Holder agrees 
 to give indulgence for a certain period of time, to any one of the parties to 
 a Bill, this takes away his right to call upon that party for payment before 
 the period expires ; and not only to call upon him, but on all the inter- 
 mediate parties ; for, otherwise, if he were to oblige them to pay the Bill, 
 they could immediately resort against the very person whom the Holder 
 has indulged, which would be inconsistent with his agreement, and a fraud 
 upon him. In courts of equity, the now settled doctrine is, that giving time 
 to a principal, without the concurrence of a surety, discharges the latter ; 
 and, if the obligee of a bond with a surety, without communication 
 with a surety, take notes from the principal, and give further time, the 
 surety would, in some cases, be discharged, though he would not be so 
 at law (except in the case of bail,) for a specialty is not discharged by a 
 
 mere simple contract." Chitty on Bills, ch. 9, p. 442, 443 (8th edit. 1833) ; 
 
 Id. p. 445, 446. 
 - 2 Bayley on Bills, ch. 9, p. 340, 341 (5th edit. 1830) ; Suckley v. Furse,- 
 
 15 Johns. R. 338 ; Oxford Bank v. Lewis, 8 Pick, R. 457 ; Forster v. 
 
 Jurdison, 16 East, R. 105 ; Stevens v. Lynch, 12 East, R. 38 ; Brien v. 
 
 Maynard, 17 Johns. R. 58 ; Gloucester Bank v. Worcester, 10 Pick. R. 
 
 528 ; Parsons v. Gloucester Bank, 10 Pick. R. 533 ; Smith v. Hawkins, 
 
 6 Connect. R. 444 ; Chitty on Bills, ch. 9, p. 448, 449 (8th edit. 1833) ; 
 
 Clarke v. Devlin, 3 Boss: & Full. 363. 
 
CH. Xn.] PAYMENT AND OTHEE DISCHAKGES. 559 
 
 it seems, if, in making the discharge, the Holder ex- 
 pressly reserves all his rights against the Indorsers, or 
 other parties to the Bill.^ 
 
 § 427. So, if, in point of fact, the Holder allows time 
 to the Acceptor, upon a valid and obligatory agree- 
 ment ; still, if, under all the circumstances, there is, and 
 can be, no delay beyond what is definitely allowed by 
 law to the party, it will not vary or affect ' the rights 
 of the Holder. Thus^ for example, if the Acceptor is 
 sued, and a Cognovit is taken for the sum, payable at as 
 early a day as judgment can otherwise be obtained in 
 the suit, the other parties to the Bill will not be thereby 
 exonerated.® So, if the Holder takes security for the 
 payment of the Bill, from the Acceptor, but without 
 any agreement for delay, or any further allowance of 
 time, that will not exonerate the other parties.^ 
 
 § 428. The question may also . arise, - Whether the 
 giving of time by the Holder to one joint Drawer, or 
 Indorser, or Acceptor, will discharge the other joint 
 parties to the Bill. Upon the same principle, as that 
 which is applied to the case, where the Holder cove- 
 
 1 Stewart «. Eden, 2 Caines, R. 121; Nichols ». Norris, 3 Barn. & 
 Adolph. 41, note ; Tombeckbee Bank v. Stratton, 7 Wend. R. 429 ; Bai- 
 ley V. Baldwin, 7 Wend. R. 389. See Bedford v. Deakin, 2 Barn. & 
 Aid. 210 ; Solly v. EUerman, 2 Brod. & Bing. 38. 
 
 2 Chilly on Bills;ch. 9,p. 447, 448 (Sthedit. 1833) ; Fentuma.Pocock, 
 5 Taunt. R. 192; Price, c. Edmonds, 10 Barn. & Cressw. 578 ; Lee v. 
 Levi, 4 Barn. & Cressw. 390 ; Hallet v. Holmes, 18 Johns. R. 28; Isaac 
 V. Daniel, 8 Adolph. & Ellis, N. S. 500. , 
 
 3 Bring V. Clarkson, 6 Bain. & Cressw. 14 ; Bedford v. Deakin, 2 Stai- 
 kie, R. 178 ; Suckley v. Furse, 15 Johns. R. 338 ; Twopenny v. Young, 
 3 Barn. & Cressw. 208 ; Bayley on Bills, ch. 9, p. 369 (5th edit. 1830) ; 
 Chilly on Bills, ch. 9, p. 445 (8lh edit. 1833) ; Lumley v. Musgrave, 4 
 Bing. New Cas. 9 ; Mohawk Bank v. Van Home, 7 Wend. R. U7 ; Bai- 
 ley V. Baldwin, 7 Wend. R. 289. 
 
560 BILLS OP EXCHANaE. [CH. XII. 
 
 nants not to sue one joint contractor, it would seem, 
 that it will not be a discharge ; for it is a mere personal 
 contract with him, for the breach of which a remedy 
 may lie by him alone, but it will not be equivalent to 
 a release. So, it seems, that, where several persons 
 are jointly and severally liable upon a contract, the 
 giving of time to one, or proceeding in a suit against 
 one, even to judgment, but without any satisfaction, 
 will be no discharge of the other.' Indeed, it has been 
 thought, that it will make no difference, in such a case, 
 at law, whatever might be the case in equity, (upon 
 which some doubt may be entertained,) that one of the 
 joint parties upon the Bill is, in fact, a surety for the 
 other ; at all events, if he is not stated to be so upon 
 the face of the Bill ; for, under such circumstances, as 
 to the Holder, he may and should be treated as a joint 
 principal, without any reference to his actual relation to 
 the other joint contractor, since he chooses to place him- 
 self in that predicament, as jointly liable, as principal, 
 upon the Bill.** 
 
 § 429. Secondly. When. and under what circum- 
 stances will a release given by the Holder to one party 
 upon the Bill, discharge the other parties thereto ? A 
 discharge, or release, by the Holder, to any party upon 
 the Bill, will not discharge the antecedent parties, who 
 are liable to him for the debt, but will only discharge 
 
 1 See U. States v. Cashman, 2 Sumn. R. 310, 426 ; Lechmere v. 
 Fletcher, 1 Cromp. & Mees. R. 623 ; Pothier on Oblig. n. 271, 272 ; 
 Price V. Edmonds, 10 Barn. & Cressw. 578. But see Hall v. Wilcox, 1 
 Mood. & Rob. 58 ; Wilson «. Foot, 11 Mete, R. 285; Oxford Bank v. 
 Haynes, 8 Pick. R. 423. 
 
 ^ Ibid. But see Pitman on Principal and Surety, p. 167 to 192, where 
 the principal authorities are collected. Mayhew v. Crickett, 2 Swanst. 
 R. 185 ; Post, ^ 433. 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 561 
 
 the subsequent' parties; since the antecedent parties 
 are in no wise injuriously affefcted, as to their rights, by 
 the discharge.^ And it will make no difference in such 
 case, that the party sought to be charged, has signed 
 the Bill for the mere accommodation of the party dis- 
 charged, if the fact was unknown to the Holder, and 
 his relation to the Bill would not otherwise exonerate 
 him.* Therefore, a release to a Payee of the Bill will 
 not discharge the Drawer or the Acceptor.^ A release 
 
 1 Chitty on Bills, ch. 9, p. 443, 444, 450 to 453 (Sth edit. 1833) ; 1 
 Selw. Nisi Prius, Abridg. p. 362 to 365 (10th edit. 1842) ;. Bayley on 
 Bills, ch. 9, p' 338 to 344 (5th edit. 1830) ; Smith w. Knox, 3 Esp. R. 46 ; 
 English c. Darley, 2 Boss. & Pull. 62'; Claridge v. Dalton, 4 Maule & 
 Selw. 233; Hayling v. Mulhall, 2 W. Black. R. 1235 ; Bank of Ireland 
 V. Beresford, 6 Dow, R. 234 ; Bank of U. States v. Hale, 6 Peters, 250 ; 
 Abal V. Holmes, 3 Miller, Louis. R. 351 ; Lynch v. Reynolds, 16 Johns. 
 R. 41 ; Brown v. Williams, 4 Wend. R. 360 ; White k. Hopkins, 3 Watts 
 & Serg. 99. , ; . . ; , 
 
 2 Bayley on Bills, ch. 9, p. 338 to 344 (Sth edit. 1830) ; Harrison v. 
 Constadd, 3 Barn. & Adolph. R. 36 ; Carstairs «. Rollestone, 5 Taunt. R. 
 551 ; Nichols v. Notiis, 3 Barn. & Adolph. R. 41, note ; Walker v. Bank 
 of Montgomery, 12 Serg. & Rawle, 383 ; Sargent e. Appleton, 6 Mass, 
 E. 85. 
 
 3 Bayley on Bills, ch. 9, p. 342 to 344 (5th edit. 1830) ; Brown v. 
 Williams, 4 Wend. R. 360; Claridge u. Dalton, 4 Maule & Selw. 226; 
 Collett V. Haigh, 3 Camp. R. 281. . Mr. Justice Bayley, in Claridge v. 
 Dalton (4 Maule & Selw. 226, 232,) speaking on this subject, said : 
 "Then, as to the second point. Whether the defendant is discharged by 
 the indulgence given to Qnarton, the case of English v. Darley (2 Bos. & 
 Pull. 61) established, that, if the Holder agree to give indulgence, for a 
 certain period of time, to any one of the parties to a Bill, this takes away 
 his right to call on that party for payment before the period expires, and 
 not only to call upon him, but upon all the intermediate parties ; for, 
 otherwise, if he were to oblige them to pay the Bill, they would imme- 
 diately resort against the very person whom the Holder has indulged, 
 which would be inconsistent with his agreement. Therefore, if he give 
 time to ihe Payee, he cannot call on the Indorsers. But this rule does 
 not apply to a party lower down on the Bill ; a^, if the fifth Indorsee were 
 to give time to the last Indorser for six months, proposing, in the mean- 
 while to endeavor to get payment from the Indorsers lower down on the 
 
562 BILLS OF EXCHANGE. [CH. XII. 
 
 of the Drawer will not discharge the Acceptor.^ The 
 same rule will apply to cases where the Holder dis- 
 charges the Guarantor of the Bill ; for, in such a case, 
 the party for whom the guaranty is given, will still re- 
 main liable.^ And here, again, the same doctrine" pre- 
 vails, as in cases of giving time to a party, that a re- 
 lease to the party primarily liable on the Bill,- (as is the 
 Acceptor,) will not discharge the other parties thereto, 
 if the Holder, upon such release, expressly reserves all 
 his rights against those parties.^ 
 
 § 430. Upon similar grounds, if the Holder of a Bill 
 compound with the Acceptor, or with an Indorser, 
 without the assent of the Drawer, or other subsequent 
 parties, he thereby releases them from their liabilities, 
 if the Acceptor or prior Indorser would otherwise be 
 liable over to them ; for there is a material distinction 
 between taking a sum of money in part satisfaction of 
 a debt, as in the case of a divid«nd by compulsion of 
 law under a commission of bankruptcy, or a discharge 
 under an insolvent act; and the voluntarily taking a 
 sum in satisfaction of such debt, where the party has an 
 option to refuse less than the whole, but compounds 
 with the Acceptor, or a prior Indorser, and thereby re- 
 leases and deprives all other parties to the Bill of the 
 
 Bill, this might well be done ; yet, accoiding to the argument for the de- 
 fendant all the prioi Indorsers would be discharged by the indulgence 
 given to a subsequent Indorser." 
 
 White V. Hopkins, 3 Watts & Serg. 99. The release of the Drawer 
 is not a discharge of the Acceptor, without satisfaction or payment of the 
 debt. A fortiori, the taking of a note for part of the amount from the 
 Drawer is not any discharge of the Acceptor. 
 
 9 Tombeckbee Bank v. Stratton,7 Wend. K. 429. 
 
 3 Stewart v. Eden, 2 Caines, R. 131 ; BurrilU. Smith, 7 Pick. B. 291 ; 
 Gloucester Bank v. Worcester, 10 Pick. R. 528 ; Tombeckbee Bank v. 
 Stratton, 7 Wend. .R. 439. 
 
CH. XII.] PAYMENT AND OTHER DISCHAEGES. 563 
 
 right of resorting to him.i Perhaps it is questionable, 
 even if the Holder has the consent of the other parties, 
 that he may accept the composition, and hold them 
 liable, without resorting to the compounding creditor, 
 whether he will not still be deprived of his remedy 
 against them, if the composition operates as a release of 
 the debt, inasmuch as it will be a fraud upon the other 
 creditors, if they have supposed that they had contract- 
 ed with each other on equal terms.* On the other 
 hand, the Holder's compounding with, or releasing, the 
 Drawer, will not discharge the Acceptor of a Bill, al- 
 though he has accepted it for the accommodation of 
 the Drawer, unless it is expressly so stipulated.^ 
 
 § 431. Thirdly. A release, by the Holder, of one 
 joint Drawer, or Indorser, or Acceptor, whether they 
 are parties or not, will discharge all the joint parties ; 
 for such a release is a complete bar to any joint suit, 
 and no separate suit can be maintained in such a case. 
 In short, when the debt is extinguished, as to one, it 
 discharges all, whether the parties intended it or not.* 
 
 1 Chitty on Bills, ch. 9, p. 454 (8th edit) ; Lynch v. Reynolds, 16 
 Johns: R. 41. 
 
 2 Chitty on Bills, ch. 9, p. 454, 455 (8th edit. 1833) ; Ex parte Wilson, 
 11 Ves. 410; Lewis v. Jones, 4 Barn. &Cressw. 506; English a. Darley, 
 2 Boss. & Pull. 61 ; Ex parte Smith, 3 Bro. Ch. R. 1 ; Howden v. Haigh, 
 11 Adolph. & Ell. 1033. 
 
 3 Chitty on Bills, ch. 9, p. 456 (8th edit. 1833) ; Maltby v. Carstairs, 
 7 Barn. & Cressw. 735. 
 
 4 Chitty on Bills, ch. 9, p. 449, 450 (8th edit. 1833) ; Bayley on Bills, 
 ch. 9, p. 342 to 344 (5th edit. 1830) ; 1 Story Eq. Jurisp. ^ 112 ; West- 
 cott V. Price, Wight. Rep. 220; Nicholsoni;. Revill, 4 Adolph. & Ellis, 
 675 ; Stirling u. Forester, 3 Bligh, 575 ; Cheetham v. Ward, 1 Bos. & 
 Pull. 630 ; Brooks v. Stuart, 10 Adolph. & Ellis, R. 854 ; American Bank 
 V. Doolittle, 14 Pick. 123 ; Averill v. Lyman, 18 Pick. 346 ; Tuckerman v. 
 Newhall, 17 Mass. R. 681 ; Goodnow v. Smith, 18 Pick. R. 414, 415 ; 
 Wiggin V. Tudor, 23 Pick. 434 ; Carnegie v. Morrison, 2 Mete. R. 381 ; 
 
564 BILLS OF EXCHANGE. [CH. XIL 
 
 The like rule applies to cases, where a satisfaction has 
 beeu made by any one joint Drawer, or Indorser, or by 
 any one partner in two firms, where each firm is bound 
 upon the Bill.^ So, the taking of the separate security 
 of one partner, by the Holder, in discharge of the joint 
 debt, will discharge the other partners.^ But a mere 
 agreement with one partner to give him time, taking 
 
 Ward V. Johnson, 13 Mass. R. 148 ; Rowley v. Stoddard, 7 Johns. R. 207; 
 Harrison v. Close, 3 Johns. R. 448. 
 
 1 Bayley on Bills, ch. 9, p. 322 (5th edit. 1830) ; Jacaud v. French, 12 
 East, R. 317 ; Pothier on Oblig. n. 261, 274 ; 1 Story, Eq. Jurisp. § 112; 
 Nicholson v. Revill, 4 Adolph. & Ell. 675. In this case Lord Denman, in 
 delivering the judgment of the Court, said ; " We give our judgment merely 
 on the principle laid down by Lord Chief Justice Eyre in .Cheetham v. 
 Ward, (1 B. & P. 630), as sanctioned by unquestionable authority, that 
 the debtee's discharge of one joint and several debtor is a discharge of all. 
 For we think it clear that the new agreement made by the plaintiff with 
 Samuel Kevill, to receive from him 1001. in full payment of one of the three 
 notes and in part payment of the other two, before they became due, ac- 
 companied with the erasure of his name from those two notes, and follow- 
 ed by the actual receipt of the 100/., was in law a discharge of Samuel 
 Revill. This view cannot perhaps be made entirely consistent with all that 
 is said by Lord Eldon in the case Ex parte Gifford, (6 Ves. Jun. 808), 
 where his Lordship dismissed a petition to expunge the proof of a surety 
 against the estate of a co-surety. But the principle to which we have ad- 
 verted was not presented to his mind in its simple form ; and the point cer- 
 tainly did not undergo much consideration. For some of the expressions 
 employed would seem to. lay it down that a joint debtee might release one 
 of his debtors, and yet, by using some language of reservation in the agree- 
 ment between himself and such debtor, keep his remedy entire against the 
 others, even without consulting them. If Lord Eldon used any language 
 which could be so interpreted, we must conclude that he either did not 
 guard himself so cautiously as he intended, or that he did not lend that de- 
 gree of attention to the legal doctrine connected with the case before him 
 which he was accustomed to afford. We do not find that any other author- 
 ity clashes with our present judgment, which must be in favor of the de- 
 fendant." See also French v. Price, 24 Pick. R. 13 ; Hammatt v. Wy- 
 man, 9 Mass. R. 138. 
 
 2 Bedford v. Deakin, 2 Barn. & Aid. 210, 216 ; Evans v. Drummond, 
 4 Esp. R. 89 ; Reed v. White, 5 Esp. R. 122. 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 565 
 
 his exclusive security for the payment of a Bill, although 
 founded upon a valuable consideration, will not dis- 
 charge the other partners, if it be with an express re- 
 servation of the rights of the Holder against the part- 
 nership, for the payment of the Bill.-^ A fortiori an 
 agreement, not founded upon any valuable considera- 
 tion, to take one partner, as debtor for the whole debt, 
 due by the partnership, will not exonerate the latter.® 
 Neither will a covenant, not to sue one joint contractor 
 or partner on the Bill, operate as a discharge of the 
 other co-contractors or partners ; for this is a mere per- 
 sonal covenant, and does not, like a release, extinguish 
 the debt.' 
 
 § 432. But it has beem said, that it would be other- 
 wise in case of a release of any party to the Bill, who' 
 is the real principal in the transaction, if the other 
 party is merely an accommodation party for him, such 
 as an accommodation Drawer, or Indorser, or Acceptor, 
 and that fact is known to the Holder, when he takes 
 the Bill ; for then the Holder must know that he 
 thereby discharges the party ultimately bound to pay 
 the Bill.* But this doctrine has been denied, upon 
 
 1 Chitty on Bills, ch. 9, p. 449 (8th edit. 1833) ; Bedford v. Deakin, 2 
 Barn. & Aid. 210 ; Lodge v. Dicas, 3 Barn. & Aid. 611 ; Bavid v. Ellice, 
 5 Barn. & Cressw. 196; Pitman on Principal and Surety, p. 181, 182, 
 ■where the cases are collected ; Crawford v. Millshaugh, 13 Johns. R. 87. 
 
 2 Lodge V. Dicas, 3 Barn. & Aid. 611. See also David v. Ellice, 5 
 Barn. & Cressw. R. 196 ; Perfect v. Musgrave, 6 Price, R. 111. 
 
 3 Chitty on Bills, ch. 9, p. 449 (8th edit. 1833) ; Dean v. Newhall, 8 
 Term R. 168 ; Twopenny v. Young, 3 Barn. & Cressw. 208 ; Mallet v. 
 Thompson, 5 Esp. R. 178 ; Ansell v. Baker, 15 Adolph. & Ellis R. N. S. 
 20. 
 
 * Chitty on Bills, ch. 9, p. 451 to 453 (8th edit. 1833) ; Laxton v. Peat, 
 
 2 Camp. R. 185. This case has been often questioned, and sometimes 
 denied. But there are other cases to the same effect. Colcott r.-Haigh, 
 
 3 Camp. R. 281 ; Hall v. Wilcox, 1 Mood. & Rob. 58 ; Post, §433. 
 
 B. OF EX. 48 
 
566 BILLS OF EXCHANGE. [CH. XII. 
 
 other occasions, to be correct, at least where it reverses 
 the actual situation of the parties upon the face of the 
 Bill itself; as if the Acceptor he an, accommodation 
 Acceptor for the Drawer or Indorser, and the Holder 
 gives time to the Drawer or Indorser, without the 
 knowledge of the Acceptor ; or, if there are joint Ac- 
 ceptors, and one is, ia fact, a surety for the other, but 
 it is not so stated on the face of the Bill or acceptance ; 
 for, in such case, such Acceptor holds himself out to 
 the Holder as primarily liable to the Holder for the 
 debt, and that resort may primarily be had to him for 
 payment, and the Holder may, therefore, insist upon 
 that liability as the result of the instrument, so far as 
 regards his own rights, notwithstanding his knowledge, 
 that the acceptance is a mere accommodation for the 
 Drawer, or the Indorsers, or the Acceptors. Indeed, 
 in either case, the Acceptor cannot be treated as a 
 mere surety, but as a primary debtor ; and, in the lat- 
 ter case, the Acceptors upon the face of the accept- 
 ance, both contract as principal debtors.^ The point, 
 
 1 Fentum v. Poeock, 5 Taunt. R. 192 ; Perfect v. Musgrave, 6 Price, 
 R. Ill; Bank of Ireland v. Beresford, 6 Dow. Rep. 234 ; Carsiairs v. 
 RollestoD, 5 Taunt. R. 551 , Parke, J., in Price v. Edmonds, 10 Barn. & 
 Cressw. 578, and Lord Tenterden, in Yallop v. Ebers, 1 Barn. & Adolph. 
 R, 698. See Pitman on Principal and Surety, p. 183, note ; Ex parte 
 Glendenning, Buck, R. 517 ; Cla ke v. Wilson, 3 Mees. & Welsh. 208; 
 1 Selw. Nisi Frius, 363 to 366 ; Nicholson v. Revill, 4 Adolph. & Ellis, 
 675 ; Brown v. Carr, 7 Bing. R. 51)8, 515 ; Combe v. Woolfe, 8 Bing. R. 
 150, 160. The question has also come before some of the American 
 Courts, and it has been held, that the parties are bound by the character, 
 which they assume upon the face of the Bill ; if, by that they are liable, as 
 primary debtors, or as principal debtors, then, as to the Holder, they are 
 bound as such ; and his knowledge at the time when he takes the Bill, 
 that they are, or either of them are, accommodation parlies, will not vary 
 the case. Bank of Montgomery County v. Walker, 9 Serg. & Rawle, 
 223 ; S. C. 12 Serg. & Rawle, R. 382. The authorities were examined 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 567 
 
 however, in the present state of the authorities, may 
 be still deemed open to controversy.' 
 
 § 433. Fourthly. Parties who are mere accommo- 
 dation parties, and are known to be such by the Hold- 
 er, will, under certain circumstances, be discharged, by 
 a discharge of the party for whose accommodation they 
 became parties to the Bill, especially where they do 
 not fall under the predicament stated in the last 
 preceding section.'^ Thus, where both Acceptor and 
 Indorser are parties to the same Bill, for the sole ac- 
 commodation of the Drawer, each being fully cogni- 
 zant of all the facts, and the Indorser, upon a dishonor 
 of tjie Bill and due notice, takes it up, and then the 
 Drawer, becoming insolvent, assigns his property for 
 the benefit of his creditors, and thereby provides a 
 preference and indemnity for the Indorser against his 
 liability on the Bill, and the Assignee has sufficient 
 funds in his hands to pay the whole debt, if the In- 
 dorser becomes a party to the assignment, he will 
 thereby release the Acceptor; for it is the same as if 
 the Indorser had the funds in his own hands for the 
 payment of the Bill.^ So, a person who becomes the 
 Holder, by taking up a Bill for the honor of an Indorser 
 if he afterwards claims the debt from the Acceptor, who 
 has become bankrupt or insolvent, and he is active in 
 procuring his discharge, will thereby exonerate such 
 Indorser, for his conduct amounts to a vol«ntary dis- 
 
 at large in this case, and the reasoning in Fentum v. Focock (5 Taunt. R. 
 192) adopted. See also Hunt v. Bridgham, 2 Pick. R. 581 ; Oxford Bank 
 V. Lewis, 8 Pick. B. 458 ; Commercial Bank v. Cunningham, 2i Pick. 
 270, 275. 
 
 1 Ibid. 
 
 2 Chitty on Bills, ch. 9, p. 450 to 452 (8th edit. 1833) ; Ante, § 432. 
 
 3 Bradford w. Hubbard, 8 Pick. R. 155. 
 
568 BILLS OF EXCHANGE. [CH. XII. 
 
 charge of the Acceptor from the debt, and a satisfaction 
 of the Bill.i 
 
 § 434. The rule has been sometimes laid down, as 
 we have already seen, much more broadly, and it has 
 been held that a discharge of mere accommodation 
 parties, whether they are Drawers, or Indorsers, or 
 Acceptors of the Bill, will, in no case, extinguish or 
 vary the rights of the Holder, as to the principal party 
 for whom they have signed the accommodation paper.** 
 The reason assigned for this doctrine is, that the prin- 
 cipal party is not, in his rights or interests, prejudiced 
 or affected thereby, since, if the accommodation parties 
 had paid the Bill, they would have been entitled tg re- 
 cover the amount from such principal party ; and it can 
 make no difference to him whether he pays his own 
 debt to the Holder or to the accommodation parties.* 
 But the doctrine is certainly open to no inconsiderable 
 doubt; and the authorities are in conflict with each 
 other. There seems a strong inclination in the more 
 recent authorities to the doctrine, that the rights of all 
 the parties to the Note are, in respect to the Holder 
 and his acts, governed by precisely the same rule, 
 whether the Note be one for the accommodation of any 
 of the parties, or not.^ 
 
 § 435. If the Acceptor has become bankrupt, the 
 
 1 Lynch v. Reynolds, 16 Johns. R. 41. 
 
 2 Chitty on Bills, ch. 9, p. 450 to 452, 454 (8th edit. 1833) ; Bayley 
 on Bills, oh. 9, p. 342, 343, 344 (5th edit. 1830) : Clarke v. Noel, 3 
 Camp. 411 ; Hill v. Read, Dowl. & Ryl. N. P. Rep. 26 ; Laxton v. Peat, 
 3 Camp. R. 185 ; Colcott v. Haigh, 3 Camp. R. 281 ; Sargent v. Apple- 
 ton, 6 Mass. R. 85 ; Murray v. Judah, 6 Cowen, R. 484 ; Ante, ^ 425, 
 433 ; Story on Promis. Notes, ^ 418. 
 
 3 Ibid. ; Ante, § 425. 
 
 * See Ante, ^ 430 ; Story on Prom. Notes, ^418. 
 
CH. xri.] PAYMENT AND OTHER DlgCHAEGES. 569 
 
 Holder will not, by proving his debt under the bank- 
 ruptcy against the Acceptor, discharge either the 
 Drawer or the Indorsers from their antecedent liability 
 to him for the amount due on the Bill, after a deduc- 
 tion of the sum which he may receive as dividends out 
 of the bankrupt's estate ; for there the discharge of 
 the Acceptor is, by act and operation of law, indepen- 
 dent of the consent of the Holder, who remains merely 
 passive ; whereas, a voluntary discharge by the Holder 
 is hid own personal, spontaneous act, and can have no 
 effect, but by his consent and approval.^ 
 
 § 436. The receiving of part payment from any one 
 of the parties upon a Bill, after they are all abso- 
 lutely fixed with liability to pay the same, will not 
 discharge the other parties thereon, unless, indeed, it 
 be accompanied by some other circumstances impairing 
 the rights of the Holder against them ; such, for ex- 
 ample, as giving time or a release to the party primarily 
 liable, or accepting him as the exclusive debtor, upon a 
 valid consideration. "^ 
 
 § 437. In some respects, the French Law, upon the 
 point, what acts will discharge the Acceptor or. other 
 parties from payment of the Bill, coincides vrith our 
 law, and, in others, it differs from it. But the French 
 
 1 Ante, ^ 428, 433 ; Chitty on Bills, eh. 9, p. 454 (8th edit. 1833); 
 Bayley on Bills, ch. 9, p. 346 (5th edit. 1830) ; English ». Darley, 2 Bos. 
 & Pull. 62 ; Longdale v. Parry, 2 Dowl. & Kyi. 337; Stock v. Manson, 
 1 Bos. & Pull. 286 ; Pothier de Change, n. 179. 
 
 2 Chitty on Bills, ch. 9, p. 442, 451, 452 (8th edit. 1833) ;.^ayley on 
 Bills, ch. 9, p. 343 (5th edit. 1830) ; Gould «. Robson, 8 East. R. 580; 
 Walwyn v. St. Quintin, 1 Bos. & Pull. 652; Ayrey v. Davenport, 5 Bos. 
 & Pull. 474 ; English v. Darley, 2 Bos. & Pull. 61 ; Bank of U. States 
 V. Hatch, 6 Peters, R. 250 ; Lobdell v. Nipliler, 4 Miller, Louis. R. 294 ; 
 Sargent v. Appleton, 6 Mass. B. 85 ; James v. Badger, 1 Johns. Cas. 131; 
 Ruggles V. Patten, 8 Mass. R. 480 ; Hunt v. Bridgham, 2 Pick. K. 581. 
 See Pothier de Change, n. 176 to 179. 
 
 48* 
 
570 BILIS OF EXCHANGE. [CH. XH. 
 
 Law does not appear to have pursued throughout the 
 principles, to the same extent, as they are in ours. By 
 the French Law, according to Pothier, (and it does not 
 seem changed since his day,) the Drawer and Indorsers 
 are exonerated from all liability upon the Bill, when 
 the Holder has acquitted or discharged the Acceptor 
 from payment of the whole Bill.' And if the discharge 
 is for a part, then they are only exonerated pro tanto. 
 This doctrine, however, so far as it respects the Drawer, 
 is to be understood with this qualification, that the 
 Acceptor had, at the time of the discharge, funds in his 
 hands, belonging to the Drawer ; for if he then had no 
 funds of the Drawer in his hands, he is deemed a mere 
 accommodation Acceptor, and the Drawer will still 
 remain liable for the sum due upon the Bill, if the pre- 
 vious dishonor thereof by the Acceptor has been duly 
 notified to him.^ But the Indorsers will in all cases, be 
 exonerated by a discharge of the Acceptor, whether he 
 has funds of the Drawer in his hands, or not ; because, 
 if the Holder could recover against them, they would 
 have a right to recover over against the Acceptor to 
 the like extent.^ The same rule also prevails, as with 
 us, where the Acceptor is discharged for the whole, or 
 for a part, or has time allowed him, by mere operation 
 of law, (as in cases of insolvency and bankruptcy,) that 
 the Holder, being merely inactive, is compelled to 
 submit to such discharge, or giving of time, and, there- 
 fore, he is not restrained thereby from the full exercise 
 of all hjs rights against the Drawer and Indorsers.* 
 
 1 Pothier de Change, n. 176 to 179. 
 
 2 Pothier de Change, n. 178. 
 
 3 Ibid. 
 
 * Pothier de Change, n. 179 ; Ante, § 435. 
 
CH. XII.J PAYMENT AND OTHER DISCHAHaES. 571 
 
 § 438. In respect to the Drawer, Pothier holds that 
 the discharge of him, by the Holder, from all liability- 
 oil the Bill, will not discharge the Acceptor, unless he 
 be a mere accommodation Acceptor ; for in the latter 
 case, if the Acceptor should be called upon to pay, he 
 would have his recourse over against the Drawer, and 
 thereby the discharge to the Drawer would be defeated.' 
 But such a discharge of the Drawer would, for the 
 same reason, discharge the Indorsers, since they would 
 have a like recourse over' against the Drawer, upon 
 payment of the Bill.^ 
 
 § 439. In respect to Indorsers, Pothier farther holds, 
 that a discharge of any one of the Indorsers, by the 
 Holder, if it be purely personal, will not discharge any 
 antecedent Indorser, or the Drawer, or the Acceptor; 
 because the right of the Holder against them is upon 
 several contracts and credits, and, therefore, he may 
 discharge one, and retain his claim against the others.^ 
 
 § 440. Thus far, the French Law seems to recognize 
 the same principles as the law of England and America. 
 But there are other modes of extinguishing the liability 
 of parties, recognized by the law of France, which are 
 not adopted in England or America. Thus, for example, 
 by the law of France, Compensation (that is, what we 
 should call a right of set-off,) is allowed to be an extin- 
 guishment of a Bill of Exchange; so, that, if the 
 Acceptor, or the Drawer, or an Indorser, who is liable 
 to pay the Bill, is, at the time, when his liability has 
 absolutely attached, a creditor of the Holder, to the 
 amount of the Bill, or a part thereof, he has a right, in 
 
 1 Pothier de Change, n. 180, 181. 
 8 Pothier de Change, n. 182. 
 3 Pothier de Change, n. 183. 
 
572 BILLS OF EXCHANGE. [CH. XH. 
 
 a suit against him, to oppose that amount, in compensa- 
 tion of the Bill, against the Holder ; for it is treated as 
 equivalent to a payment pro iavto} So true is this, 
 that a compensation, which one joint party is entitled 
 to oppose to the claim of the Holder, will avail for and 
 discharge all.^ 
 
 S 441. Another mode of extinguishment, familiarly 
 known in the French Law, and, also, in our law, is by 
 a Novation, which is a substitution of a new debt for 
 an old one ; as, for example, the substitution of a new 
 Bill in lieu of, and taking up, the old Bill. Pothier 
 lays it down as unquestionable, that a Novation ope- 
 rates as a clear extinguishment, and is equally as 
 applicable to Bills of Exchange, as it is to other ordi- 
 nary contracts.' 
 
 § 442. Another mode of extinguishment, known in 
 the French Law, is, by what is technically called Confu- 
 sion, by which is meant, the concurrence of two 
 qualities in the same subject, which mutually destroy 
 each other.* This may occur in several ways; as, 
 for example, where the creditor becomes the hdir of the 
 debtor, or the debtor the heir of the creditor, or either 
 accedes to the title of the other by any other mode of 
 transfer.' 
 
 § 443. A doctrine, nearly analogous, prevails in the 
 English Law in the former case, ("although not in the 
 latter,) and may well be designated as taking effect 
 
 1 Pothier de Change, n. 184 to 188. 
 
 2 Pothier oa Oblig. by Evans, n. 274. 
 
 3 Pothier de Change, n. 189 ; Pothier on Oblig. by Evans, n. 546 to 
 564. 
 
 * Pothier on Oblig. by Evans, n. 605, 606. 
 
 5 Pothier on Oblig. by Evans, n. 606 to 609 ; Pothier de Change, n. 
 190, 276. 
 
OH. xn.] PAYMENT AND OTHER DISCHARGES. 573 
 
 by merger. Thus, if the creditor appoints his debtor 
 to be his executor, that operates, at law, as a release 
 or extinguishment of the debt.' And the law is the 
 same, where the creditor appoints one of several joint 
 or joint and several debtors to be his executor; for 
 the executor cannot sue himself.*^ But, by the English 
 Law, this extinguishment operates only, where there 
 are other assets of the creditor to pay all his debts ; 
 for, if there be not other assets, then the creditors of 
 the testator have a right to payment out of the debt, 
 as a part of the assets.^ In case of the appointment 
 of the debtor as administrator of the creditor's estate, 
 as it is the mere act of law, and not of the creditor 
 himself, the debt is not extinguished.* And in equity, 
 in England, the same rule prevails, even in the case 
 of executors, who are treated as having, in fact, paid 
 the debt, by adding it to the assets.* In case of the 
 appointment, by a debtor, of his creditor, to be his 
 executor, no such merger or extinguishment takes 
 place ; unless the executor receives assets sufficient to 
 pay the debt, and there be a right to appropriate the 
 same to that purpose, and then he is presumed so to 
 do.« 
 
 § 443 a. [The effect of merger has received direct 
 illustration in the case of Bills of Exchange. Thus, 
 
 1 Freakley v. Fox, 9 Barn. & Cressw. 130. 
 
 2 Williams on Executors, Pt. 3, B. 3, ch. 11, ^ 9, p. 937 to 946 (2d 
 edit.) ; Freakley v. Fox, 9 Barn. & Cressw; 130. See Pothier on Oblig. 
 by Evans, n. 276. 
 
 3 Ibid. 
 
 4 Ibid. 
 
 5 Ibid. ; Carey w.'Gooding, 3 Bro. Ch. R. Ill ; Berry v. Usher, 11 Ves. 
 90 ; Simmons v. Guttridge, 13 Ves. 262. 
 
 6 Ibid. ; Woodward v. Lord Darcey, Plowd. R. 185 ; Wankford v. 
 Wankford, 1 Salk. R. 305. 
 
574 BILLS or EXCHANGE. [CH. XH. 
 
 where a Bill, at the time it became due, was in the 
 hands of one of three Acceptors who was liable upon it, 
 it has been held, that the concurrence in the same per- 
 son of the present liability to pay, and of the present 
 right to receive the amount of the Bill, operated as a 
 payment^and performance of the contract of acceptance, 
 and, by consequence, extinguished all right of action 
 thereupon.'] 
 
 § 444. The distinction is, perhaps, more nominal 
 than real, between the French Law and the English 
 Law; for, when it is said, that, where the creditor 
 becomes the heir of the debtor, his debt is extinguished, 
 it is to be understood that he is not only executor or 
 administrator of the estate, but that he is the sole heir 
 of the property, subject to other debts. And hence, if 
 he accepts the executorship with the benefit of an inven- 
 tory, no such confusion is introduced; because, it is 
 said, that the beneficiary heir, and the succession, are 
 then dc'jmed different persons, and their respective 
 rights are not confounded.® Accordingly, Pothier says: 
 In order to induce a confusion of the debt, the charac- 
 ters, not only of debtor and creditor, but of sole debtor 
 and sole creditor, must concur in the same person. If 
 a person, who was only creditor for part, becomes sole 
 heir of the debtor, it is evident, that the confusion and 
 extinction can only take place, with respect to the part, 
 for which he is creditor. Vice versd, if the creditor of 
 the whole becomes the heir of the debtor for part, the 
 confusion only takes place with respect to that part. 
 
 £__ 
 
 ' Hosmer v. Steele, 4 Welsby, Hurlstone & Goidon, I ; Freakley v. 
 Fox, 9 Barn. & Cressw. 130. 
 
 2 Pothier on Oblig. by Evans, n. 606 to 608. 
 
CH. XII.] PAYMENT AND OTHER DISCHAEGES. 575 
 
 It is equally evident that, if the creditor is only one of 
 several heirs to the debtor of the whole, the confusion 
 and extinction only takes place in respect of the part, 
 for which he is heir, and for which he is liable to all 
 the other debts of the succession; the demand continues 
 to subsist against the others as to the parts, for which 
 they are respectively liable to the debts of the 
 deceased.^ 
 
 § 445. Pothier illustrates the principles of the 
 French Law, by stating, that the amount due by a Bill 
 of Exchange is extinguished by confusion, when the 
 Holder becomes the pure and simple heir of the Accep- 
 tor; and vice versd, yihen the Acceptor becomes the 
 pure and simple heir of the Holder ; or, when a third 
 person becomes the pure and simple heir of both. And 
 this turns upon the ground of the maxim, Aditio 
 hcereditdtis pro soluiione cedit? And this is also the 
 established rule in the Roman Law.^ The like extin- 
 guishment applies in favor of the Drawer and Indorsers, 
 by the Acceptor's becoming the heir ; for his is the prin- 
 cipal obligation, and, when that is extinguished, the 
 collateral obligations are also extinguished.'* 
 
 § 446. In respect to a release, or discharge, by the 
 Holder, of one joint debtor, how far it will discharge 
 the others, Pothier holds the following doctrine : " That 
 the release of the creditor to one of the debtors would 
 also liberate the others, if it appeared, that the creditor 
 intended thereby to extinguish the debt as to the 
 whole. If it appeared that his intention was only to 
 
 » Pothier on Oblig. by Evans, n. 612. 
 
 2 Piithipr de Change, n. 190 ; Dig. Lib. 46, tit. 3, 1. 95, § 2. 
 
 3 Dig. Lib. 46, tit. 3, 1. 95, ^ 2. 
 * Potliier de Change, n. 191. 
 
576 BILLS OF EXCHANGE. [CH, XIL 
 
 extinguish tlie debt, as to the part for which the person, 
 to whom he gave the release, was liable to his co-debt- 
 ors, and to discharge that one personally from the re- 
 sidue of the debt, the debt would still continue to 
 subsist, as to the residue, against the co-debtors.' 
 § 447. In cases of a demand of payment of a Bill of 
 
 1 Pothier on Oblig. by Evans, n. 275. Pothieradds : "If the creditor, 
 in the discharge which he gave to his co-debtor, expressly declared that he 
 intended only to discharge the person of the particular debtor, and to 
 retain his claim against the others ; could he, by virtue of this declaration, 
 require the whole from the other debtqrs, without deducting the part of 
 him who was discharged ? I think he could not ; the several debtors 
 would not have bound themselves in solido, but would only have engaged 
 for their own respective parts, if they had not considered, that on paying 
 the whole they should have recourse against the others ; and that for this 
 purpose they would be entitled to a cession of the actions of the creditor 
 for the other parts. It is only under the tacit condition of having this 
 cession of actions that they are obliged, in solido; and, consequently, the 
 creditor has no right to demand from any of them the payment of the 
 whole, without such, cession. In this case, the creditor having put it out 
 of his power to cede his action against the debtor whom he has discharged, 
 and, consequently, having incapacitated himself from performing the con- 
 dition upon which he has a right to demand the whole, it follows, that he 
 cannot demand the whole from each of them. When there are several 
 debtors in solido, and the creditor discharges one of them, can he proceed 
 against each of the others in solido, subject only to a deduction of the share 
 of the one who is discharged, and of that proportion, to which the one 
 who is discharged, would be liable, as between themselves, for the share 
 of any of the others, who were insolvent? For instance, supposing that I 
 had six debtors in solido, that I discharged one, that there remained five, 
 of whom one is insolvent ; can I only proceed against each of the others for 
 their sixth part ? Or may I proceed against each of those who are solvent, 
 for the whole, subject only to the deduction of the sixth, for which the 
 person discharged was originally bound, and of his share in the portion of 
 the one who had become insolvent? I think I should be well founded in 
 doing so, for the debtor against whom I proceed, cannot claim from me 
 any other deduction than the amount of what he loses by not having a 
 cession of actions against the one whom I have discharged. Now, the 
 cession of actions against him would only give a right of repetition as to 
 his portion, and a right of contribution in respect to the share of the in- 
 solvent." Pothier on Oblig. n. 275, by Evans. 
 
CH. XII.J PAYMENT AND OTHER DISCHAEGES. 577 
 
 Exchange from the Acceptor, or other party thereto, 
 the question may arise, whether he is bound to pay 
 unless the Bill is produced and delivered up to him. 
 It is obvious, that if the Bill is not produced and de- 
 livered up when it is paid, that the Acceptor may, in 
 case of its having been lost or transferred and coming 
 into the possession . of a bond fide Holder before its 
 maturity, be liable to pay the same a second time ; 
 and he can have no positive security against such lia- 
 bility. At law, no such security can be required to 
 be given. A Court of Equity, however, may, whe're 
 the Bill is asserted to be lost, give relief to the Holder ; 
 but then it is always upon the terms that he shows 
 satisfactory proofs to establish the loss, and gives good 
 security for the repayment of the money, if the Ac- 
 ceptor shall be compelled to pay the. same again to ano- 
 ther Holder.^ Still, this is imposing some hardship upon 
 the Acceptor, as he may be obliged to contest the 
 rights of the Holder in a second suit, and the evidence 
 by which he can resist payment may, in the mean 
 time, be greatly changed by the witnesses to the sup- 
 posed prior loss being dead or having removed, and 
 their place of residence being unknown ; so that, with- 
 out any default on his own part, he may be subjected 
 to expensive and protracted litigation in order to avoid 
 a double payment ; and in the mean time, the original 
 Holder, to whom he had paid the amount, as well as his 
 sureties, may have become insolvent. 
 
 § 448. Upon this account the doctrine has been 
 lately established in England, although formerly there 
 was much diversity of opinion upon the subject, that 
 
 _» __ 
 
 I 
 
 i Macartney o. Graham, 2 Sim. R. 285 ; Davie3 v. Dodd, 1 Wilson, 
 Exch^ R. 110. 
 
 B. OF EX. 49 
 
'578 BILLS OF EXCHANGE. [CH. XII. 
 
 no recovery whatsoever can be had at law upon a lost 
 Bill of Exchange, which is negotiable (although it 
 might be otherwise, if not negotiable ; ') and that the 
 Acceptor is not bound to pay the Bill unless it is pro- 
 duced and delivered up to him at the time of the pay- 
 ment; nor will an offer of indemnity affect his case at 
 law, upon the ground that the Acceptor, upon pay- 
 ment of the Bill, has a right to the possession of it for 
 his own security, and as his own defence and discharge, 
 pro tartto, in his account with the Drawer.^ The like 
 
 1 Mossop V. Eadon, 16 Ves. 430 ; Pintard v. Tackington, 10 Johns. R. 
 104 ; Bayley on Bills, ch. 9, p. 369, 370, 372, 373 (5th edit.) ; Chitty on 
 Bills, ch. 6, p. 291 (8th edit.) 
 
 2 Bayley on Bills, ch. 9, p. 371 to 373 (5th edit. 1830) ; Chitty on Bills, 
 ch. p, p. 291, 292, 295 ; Id. ch. 9, p. 456 to 458 (8th edit. 1833) ; Han- 
 sard V. Robinson, 7 Barn. & Cressw. 90 ; Davies v. Dodd, 4 Taunt. R. 
 602 ; Ex parte Greenway, 6 Ves. 812 ; Wain v. Bailey, 10 Adolph. & 
 EJlis, 616 ; Poole v. Smith, Holl, N. Prius, R. 145; Thomson on Bills, 
 ch. 3, ^ 5, p. 323 (2d edit.) ; Mossop v. Eadon, 16 Ves. 430. In this last 
 case the note was not negotiable. Powell v. Roach, 6 Esp. R. 76. Lord 
 Tenterden, in delivering the opinion of the Court in Hansard v. Robinson 
 (7 Barn. & Cressw. 90, 94, 95,) said : " Upon this question, the opinions 
 of Judges, as they are to be found in the cases quoted at the bar, have not 
 been uniform, and .cannot be reconciled to each other. It is not necessary 
 to advert again to the cases. Amid conflicting opinions, the proper course 
 is, to revert to the principle of these actions on Bills of Exchange, and to 
 pronounce such a decision as may best conform thereto. Now the prin- 
 ciple upon which all actions are founded, is the custom of merchants. 
 The general rule of the English Law does not allow a suit by the As- 
 signee of a chose in action. The custom of merchants, considered as part 
 of the law, furnishes, in this case, an exception to the general rule. 
 What then is the custom in this respect? It is, that the Holder of the 
 Bill shall present the instrument at its maturity to the Acceptor, demand 
 payment of its amount, and, upon receipt of the money, deliver tip the 
 Bill. The Acceptor paying the Bill has a right to the possession of the 
 instrument for his own security, and as his voucher and discharge, pro 
 tanto, in his account with the Drawer. If, upon an offer of payment, |he 
 Holder should refuse to deliver up the Bill, can it be doubted that the 
 Acceptor might retract his offer, or retain his money? And, if this he 
 the right of an Acceptor, ready to pay at the maturity of the Bill, must 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 579 
 
 rule prevails, and seems always to have prevailed in 
 France; and, indeed, is so manifestly in coincidence 
 with mercantile convenience and security, that it would 
 be no mat|ter of surprise to find it the rule in all the 
 other maritime nations of Continental Europe.' The 
 
 not his right remain the same, if, though not ready at that time, he is 
 ready afterwards? and can his right be varied if the payment is to be 
 made under a compulsory process of law 1 The foundation of his right, 
 his own security, his voucher and his discharge toward the Drawer, re- 
 main unchanged. As far as regards his voucher and discharge toward 
 the Drawer, it will be the same thing, whether the instrument has been 
 destroyed or mislaid. With respect to his own security against a demand 
 by another Holder, there may be a difference. But how is he to be 
 assured of the fact, either of the loss or destruction of the Bill ? Is he to 
 rely upon the assei lion of the^Holder or to defend an action at the peril of 
 costs? And if the Bill should afterwards appear, and a suit be brought 
 against him by another Holder, a fact not absolutely improbable in the 
 case of a lost Bill, is he to seek for the witnesses to prove the loss, and to 
 prove that the new plaintiff must have obtained it after it became due? 
 Has the Holder a right, by his own negligence, or misfortune, to cast this 
 burden upon the Acceptor, even as a punishment for not discharging the 
 Bill on the day it became due? We think the custom of merchants does 
 not authorize us to say, that this is the law. Is the Holder then without 
 rennedy? Not wholly so. He may tender sufficient indemnity to the 
 Acceptor, and if it be refused he may enforce payment thereupon in a 
 court of equity." Whether the like rule prevails when a Bill has been 
 destroyed, and proof of its destruction is made, as, for example, of its 
 being consumed by fire, seems to have been thought more doubtful. But, 
 in such a case the situation of the Acceptor, as to the importance of pos- 
 sessing the voucher to establish his claim against the Drawer as well as 
 his own personal security, may require the rule to be strictly adhered to. 
 What evidence can the Acceptor have that the evidence of he destruction 
 is not false, by mistake, or design? See Bayley on Bills, eh. 9, p. 369 
 to 372 (5th edit. 1830) ; Pierson v. Hutchinson, 2 Camp. R. 211 ; Rolt v. 
 Watson, 4 Bing. R. 273 ; Anderson v. Robson, 2 Bay, R. 495 ; Swift v. 
 Stevens, 8 Connect. R. 431. See also Stat. 9 & 10 Will. 3, ch. 17, § 3. 
 1 Ibid. ; Code de Coram, art. 151, 152 ; Jousse, Comm. sur. I'Ord. 1673, 
 tit. 5, art. 18, 19, and Comment. ; Pardessus, Droit Comm. Tom. 2, art- 
 408, 410, 411 ; Thomson on Bills, ch. 3, § 5, p. 319 to 323 (2d edit. ) ; 
 Nouguier de Change, Tom. 1, p. 335 to 341 ; Stoiy on Promissory Notes, 
 § 111 ; Heineccius de Camb. cap. 6, § 11. — Heineccius says : " Elegans 
 
580 BILLS OP EXCHANGE. [CH. XH. 
 
 like rule has been applied in England to cases where a 
 BiU, payable to the Bearer (as is commonly the case 
 with bank notes,) is diyided and transmitted by the 
 post, and one half is lost, and the other arrives safe ; 
 and the Holder is held not entitled to recover at law 
 upon the half which he possesses ; for the other half 
 may have passed, or be proved to have passed, into the 
 hands of another honafide Holder.' 
 
 qusestio est,~^n, amissis litteris cambialibus, ipsum debitum cambiale ex- 
 spiret ? Jd quod merito negatar. Quodsi debitor fateatur, se cambiales 
 litteras dedisse, judex ilium per exsequutioneni cambialem adigere protest 
 ad solTenduiD, modo actor ptias cautionem de futura indemnitate prsesti- 
 terit. Sin vero neget reus, probations, adeoque processu ordinario opus 
 est ; victus tamen reus exsequutione cambiali ad solvendum compelli- 
 tur." 
 
 1 Bayley'on Bills, ch. 9, p. 369 to 374 (5th edit.) ; Chitty on Bills, eh. 
 6, p. 285, 291, 295 (8lh edit.) ; Thomson on Bills, ch. 3, \ 5, p. 323 (2d 
 edit.); Story on Promissory Notes, ^111; Mayor «. Johnson, 3 Camp. 
 R. 324 ; Contra, Bullett v. Bank of Pennsylvania, 9 VPash. Cir. R. 172 ; 
 Martin v. The Bank of the United States, 4 Wash. Cir. R. 253 ; Hinsdale 
 e. Bank of Orange, 6 Wend. R. 378 ; Patton v. State Bank, 2 Nott & 
 McCord, R. 464 ; See Mossop v. Eadon, 16 Yes. 430. But this case is 
 distinguishable, as the note was not negotiable and was payable on de- 
 mand. ■ See also Chitty on Bills, ch. 6, p. 291, note b, N. B. (8th edit.) ; 
 Id. 295. — Mr. Bayley (p. 374) says: " If a Bill or note transferable by 
 delivery be cut in halves, and half be lost, the Holder cannot sue at law 
 upon the other half. Payment at law cannot be enforced unless the 
 entire instrument be produced, or unless there he proof that the entire in- 
 strument, or whatever part of it is wanting, has been destroyed." Mr. 
 Chitty (p, 285) says : " In remitting bank notes or bank post bills, it is 
 expedient to divide them and send them by different conveyances ; and it 
 should' seem, that if one part should be lost, stolen, or misapplied, no per- 
 son but the real owner can acquire a right to or lien upon the same, how- 
 ever bona fide his conduct may have been, because, as the instrument was 
 not perfect when he received the same, he had no right to rely on the 
 authenticity of the transaction, and can look only to the party from whom 
 he received it ; and the real owner may recover from him the half in an 
 action of trover, if it be withheld after demand ; though he could not 
 recover from the Acceptor or Maker without producing both the halves, 
 and, being able to give them up." Mr. Thomson (p. 323) says : " The 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 581 
 
 § 449. In America there has been some diversity of 
 judgment whether a suit is maintainable at law upon 
 
 remedies ia England, on the loss or destruction of Bills and notes, are 
 different in some respects from those already mentioned. I. It seems to 
 be settled that, if a Bill or note is destroyed, and, even though lost, if it is 
 not negotiable, which Bills and notes are not in England, unless payable 
 to order, or if it is specially indorsed by the payee, or has never been in- 
 dorsed, the creditor may maintain action on it at Common Law against 
 any of the previous parties, and secondary evidence similar to what is 
 received with us in a proving of the tenor, will be admitted to establish its 
 contents. There is also an action at law on a Bill against a party who 
 wrongfully withholds it as against an Acceptor refusing to redeliver it 
 because he cannot found an objection to the creditor's right on his own 
 misconduct. It has been farther suggested, that there may be an action 
 at law, even on a Bill or note which has been lost when blank indorsed, if 
 lost after the term of payment; because, in that case, any Holder would 
 be liable to the exception pleadable against the previous Holder, viz. that 
 he had recovered. But the better opinion seems to be, that no party to 
 the Bill should be thus subjected without indemnity to the risk of a future 
 action by a bona, fide Holder of the lost Bill, seeing he cannot answer such 
 an action without undertaking to prove that the Bill was lost after the 
 term of payment. In such a case, therefore, there would probably be no 
 remedy in a Court of Law. For, 2dly, although it seems to be doubted, 
 whether Courts of Law have not in some cases, the power of adjusting 
 the terms of an indemnity against the reappearance of a lost instrument, 
 yet this is the proper function of courts of equity. No action at law, 
 therefore, can be maintained, even with an offer of indemnity, on a Bill or 
 note blank indorsed, and consequently payable to the bearer, when it has 
 been lost on or before the termof payment, and may thus be sued on again 
 by a third party. The same rule has been enforced in some cases, when 
 the instrument was lost after the term of payment, and after action was 
 brought on it. It has been even carried so far, that, in a case where a 
 bank note payable to the bearer was sent in two separate parts by post, 
 and one of them was stolen, it was held that an action at law could not be 
 maintained on the remaining half, unless by producing the entire note, or 
 proving that half was destroyed, seeing that any^arty getting the other 
 half would have an equally good right of action on it, whereby the de- 
 fendant might be liable to two actions at once. But it appears, that the 
 two Holders would not in this case be in the same situation, since the one 
 would instruct the casus amissionis of that part which was lost, whereas 
 (according to the suggestion of a learned author,) any party taking the 
 lost part, while he knew nothing of the other, must be held to do it at 
 49* 
 
582 BILLS OF EXCHANGE. [CH. XII. 
 
 a lost Bill against the Acceptor or not. In some States 
 the doctrine has been maintained in the affirmative/ in 
 others, it has been held in the negative.^ In others, 
 again, it has been held that the Holder is entitled to 
 recover at law, provided he executes a sui-table instru- 
 ment of indemnity.' Which doctrine will ultimately 
 prevail in America, it is not for the Commentator to 
 conjecture. But it may be said, with great confidence, 
 that it will be difficult to overturn, upon satisfactory 
 grounds, the reasoning of Lord Tenterden, already re- 
 ferred to, in favor of the negative.* But, when we 
 
 his own risk, and could not be considered as having the same rights with 
 a Holder of the full notes. It does not, therefore, appear that the debtor 
 was in danger of a second claim from this party, though he had paid the 
 note to the original owner." 
 
 1 Meeker v. Jackson, 3 Yeales, R. 442 ; Lewis v. Peytavin, 16 Martin, 
 R. 4 ; Miller v. Webb, 8 Louis. R. 516 ; Bullet v. Bank of Pennsylvania, 
 2 Wash. Cir. R. 172 ; Hinsdale v. Bank of Orange, 6 Wend. R. 378. 
 
 2 Rowley v. Ball, 3 Cowen, R. 303 ; Kirby v. Sisson, 2 Wend. R. 550 ; 
 Smith «. Rockwell, 2 Hill, N. Y. K. 482; Posey ». Decatur Bank, 12 
 Alabama R. 802 ; Thayer v. King, 15 Ohio R. 242. See Morgan v. 
 Reintzel, 7 Cranch, 275 ; Renner v. Bank of Columbia, 9 Wheat. R. 
 581. 
 
 3 Story on Promissory Notes, ^111. 
 
 * Ante, § 448, and note. The reasoning in favor of maintaining a suit at 
 law upon a lost Bill or Note is very fully given by Mr. Justice Washington 
 in delivering the opinion of the Court in Martin v. Bank of TJ. States, (4 
 Wash. Cir. R. 253, 255.) He there said : " The principles upon which 
 this Court decided the case of Bullet v. The Bank of Pennsylvania (2 
 Wash. Cir. R. 172) were, that a bank or any other promissory note, is the 
 evidence of a debt due by the Maker to the Holder of it, and nothing 
 more. It is also the highest species of evidence of such debt, and in fact 
 the only proper evidence, if it be in the power of the owner of the note to 
 produce it. But if it be lost or destroyed, or by fraud or accident has got 
 into the- possession of the Maker, the owner does not thereby lose his 
 debt, but the same continues to exist in all its rigor, unaffected by the ac- 
 cident which has deprived the owner of the means of proving it by the note 
 itself. The debt still existing, the law, which always requires of a party 
 that he should produce the best evidence of his right of which the nature 
 
OH. Xir.] PAYMENT AND OTHER DISCHARGES. 583 
 
 come to the case of the Indorser, or the Drawer, who 
 is called upon to pay the Bill, in default of payment by 
 
 of the thin^ is capable, permits him, where such better evidence is lost or 
 destroyed, or not in his power, to give inferior evidence, by proving the 
 contents of the lost paper ; and if this be satisfactorily made out, he is en- 
 titled to recover. If the evidence be not lost, but is merely impaired by 
 accident, or even by design, if such design be not to injure the Maker or 
 to cancel the debt, the principle of law is the same. Cutting a bank note 
 into two parts does not discharge the bank from the debt, of which the 
 note was but the evidence, nor does it even impair the evidence itself, if, 
 by uniting the parts, the contents of the entire note can be made out. If 
 one of the parts should be lost or destroyed, the debt would be no more 
 affected than if the entire parts had been lost or destroyed. The evidence 
 is impaired indeed, not by the act of cutting the note, but by the same 
 accident which would , have affected the entire note, had that been lost. 
 In both cases, the owner must resort to secondary evidence, and is bound 
 to prove that the note did once exist, that it is lost or destroyed, and that 
 he is the true, bona fide owner of the debt. If one part only of the note 
 be lost, the difficulty which" the real owner has to encounter in proving his 
 right to the debt is diminished. For if the entire note be lost, the owner 
 of it at the time of the accident may not be entitled to the debt of which 
 it was the evidence, at the time he demands payment, because the note 
 passing from hand to hand by bare delivery, may have been found, and 
 have got into the possession of a bona fide Holder. But against the real 
 owner of one half of the note, there cannot possibly be an opposing right. 
 The finder, or robber of the other half part cannot assert a right to the 
 debt, because -he cannot prove that he came fairly to the possession of the 
 evidence of it. I speak judicially, when I say that he cannot prove that 
 fact, because he cannot do it without the aid of perjury, which the law 
 does not presume, andean in no instance guard against it. If the last 
 half note gets fairly into the hands of a third person, he takes it with 
 notice that there may be a better title in the possession of the other half, 
 and consequently he looks for indemnity to the person from whom he re- 
 ceived the half part, if it shouldirlurn out that he was not the real owner 
 of the entire note. It is impossible, therefore, that the bank can be legally 
 called upon to pay the note twice ; and if the officers of the institution 
 suffer themselves to be imposed upon by insufficient or false evidence, by 
 which means the bank is brought into this predicament, she must abide 
 the loss as being occasioned by an error of judgment in the officers of the 
 bank, or their want of due caution. The law cannot adapt its provisions 
 to every possible case that may occur, and it therefore proceeds from ne- 
 cessity upon general principles applicable to all cases. If upon any other 
 ground than fraud, or perjury, the Maker of the lost note, may by possi- 
 
584 BILLS OF EXCHANGE. [CH. XIL 
 
 the Acceptor, it will be difficult to find any solid reason 
 upon which the Holder can be entitled to recover 
 against either of them without the Bill being produced, 
 upon the mere parol proof of the loss of it ; since the 
 Indorsers and Drawer may or must thereby be put to 
 great embarrassment in making out their own title 
 against the Acceptor, or against other parties liable to 
 them, without the production of the Bill. What right 
 can the Holder have, to shift upon them the burden of 
 proving the loss of the Bill ? Or, what adequate means 
 
 bility be twice charged, the law will not expose him to that risk by re- 
 lieving the asserted owner of it ; not because there may be imposition in 
 the case, or because the debt ought not to be paid ; but because the proof 
 that the claimant is the real owner of the debt is defective ; for it by no 
 means follovrs, that, because the lost note did belong to him, that it may 
 not then be the property of some other person. A court of law therefore 
 will, in such a case, dismiss the parties from a forum which has no means 
 of securing the Maker of the note against a double charge, and leave 
 him, to one where those who ask of it equity will be compelled to do 
 equity. The case then resolves itself very much into a question of juris- 
 diction. For it is quite clear that the real owner of a debt, the evidence 
 of which is lost, is entitled to snpply the want of the better evidence by 
 that which is secondary, and this rule of evidence is the same in equity 33 
 at law. But whether the application for relief shall be in the one court or 
 in the other, must depend upon the particular case, and its fitness for the 
 one jurisdiction or the other. Many difficulties were stated by the de- 
 fendant's counsel, to which the practice of cutting the notes and trans- 
 mitting them by mail exposes banking institutions in identifying the part 
 of a note when produced for payment. That these difficulties do in a 
 measure exist, must be admitted. But the bank knows that there can be 
 but one owner of the note, and who that one is must be satisfactorily 
 proved, to entitle him to payment of it. The bank has a just right to 
 call for such proof; and if it be truly and faithfully given, there can be no 
 risk in paying it. The possessor of the other half part of the note, as 
 already observed, by whatever means he acquired it, can never oblige the 
 bank to pay the money over again to him. But after all, the rule of law 
 does not rest upon this circumstance. The Maker of the note is bound to 
 pay to the person who proves himself to be the legal owner of it ; and the 
 difficulties complained of are not greater than those which attend most liti- 
 gated questions." * 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 585 
 
 can they have of preserving and commanding all the 
 proof for future use, in case of future litigation ? The 
 English doctrine must, under such circumstances, apply 
 to the Drawer and Indorsers with double propriety and 
 force.' 
 
 § 450. The legal effect of a payment of the Bill by 
 the Acceptor, or by any other party, is easily deduci- 
 ble from the considerations already suggested.^ The 
 payment is valid as to third persons, only when it is 
 made bond fide without any knowledge of facts, which 
 justly impair or destroy the rights of the -Holder. If, 
 therefore, payment is made under circumstances in 
 which the party is under no legal liability to pay, as, 
 for example, by an Indorser, who has not received due 
 notice, it is at his own risk ; and he can, ordinarily, have 
 no recourse over to other persons, who might have been 
 liable if the payment had been valid and obligatory.? 
 So, also, payment of a Bill, where the indorsement 
 under which the Holder claims is a forgery, will not 
 justify the party paying ; but the real owner of the 
 Bill will be entitled to recover the amount.^ And, 
 indeed, it may be laid down as a general rule, that 
 payment of a forged Bill will have no effect to charge 
 other parties therewith, who, if it had been genuine, 
 would have been liable therefor, unless they have given 
 currency to the Bill by adopting, or passing, or accept- 
 ing it as genuine.^ 
 
 1 SeeChilty on Bills, ch. 9, p. 285, 291, 299 (8th edit. 1833) ; Id. ch. 
 10, p. 532 ; Bayley on Bills, ch. 9, p. 369 to 373 {5th edit. 1830.) 
 
 2 Chilly on Bills, ch. 9, p. 458 (8ih edit. 1833.) 
 
 3 Chitty on Bills, ch. 9, p. 426, 458 tp 464 (8ih edit. 1833.) 
 
 * Ibid. ; Bayley on Bills, eh. 8, p. 318 to 323 (5th edit. 1830) ; Id. ch. 
 U, p. 463, note 484. 
 5 Ibid. Upon this subject Mr. Chitty says : " With respect to payment 
 
586 BILLS OF EXCHANGE. [CH. XII. 
 
 § 451, When, and under what circumstances, in case 
 of a forgery, a person who is a party to a Bill, either as 
 
 by mistake, of Bills or notes, where there has been forgery, the decisions 
 and opinions have been contradictory. It seems, however, clear, oa prin- 
 ciple, as well as authority, that a Drawee of a Bill, or a banker acting for 
 his customer, cannot, in case he pays a Bill, where the Drawer's signature 
 has been forged, or where the sum has been fraudulently enlarged with- 
 out the fault of the Drawer, debit the Drawer with the sum so paid 
 without his authority, or recover the amount from him. But, there are 
 many conflicting decisions upon the question, whether the party paying 
 shall be allowed' to recover back the money from the person whom he 
 has inadvertently paid. It has been contended that if the party paid was 
 a bond fide Holder, ignorant of the forgery, then he ought not to be oblig- 
 ed to refund, under any circumstances, although he could not have en- 
 forced payment, and although he had immediate notice of the forgery; 
 because the Drawee was bound to know the handwriting of the Drawer, 
 and the genuineness of the Bill ; and becanse the Holder, being ignorant 
 of the forgery, ought to have the benefit of the accident of such payment 
 by mistake, and not to be compelled to refund. But on the other hand, it 
 may be observed, that the Holder who obtained payment, cannot be con- 
 sidered as having altogether shown sufficient circumspection ; he might, 
 before he discounted or received the instrument in payment, have made 
 more inquiries as to the signatures and genuineness of the instrument even 
 of the Drawer or Indorsers themselves ; and, if he thought fit to rely on 
 the bare representation of the parly from whom he took it, there is no 
 reason that he should profit by the accidental payment, when the loss had 
 already attached upon himself, and why he should be allowed to retain the 
 money, when, by an immediate notice of the forgery, he is enabled to pro- 
 ceed against all other parties, precisely the same as if the payment had 
 not been made, and, consequently, the payment to him has not in the least 
 altered his situation, or occasioned any delay or prejudice. It seems that, 
 of late, upon questions of this nature, these latter considerations have in- 
 fluenced the Court in determining, whether or not the money shall be 
 recoverable back ; and it will be found, on examining the older cases, that 
 there'were facts afi^ording a distinction, and that, upon attempting to re- 
 concile them, they are not so contradictory as might, on first view, have 
 been supposed. It has been decided, that a Drawee who had accepted, 
 and afterwards paid a Bill, and after waiting a considerable time, upon dis- 
 covering that the Drawer's name was forged, could not recover back the 
 amount, for there, by his acceptance, he gave credit to the Bill, and thereby 
 induced the plaintiff to take it, and he also delayed giving notice of the 
 forgery. So, in another case, where bankers paid a forged acceptance, 
 supposed to have been made by their customer, and payable at their bank. 
 
CH. XII.] PAYMENT AND OTHEB DISCHARGES. 587 
 
 Drawer, Indorser, or Acceptor, and who pays it to a 
 bond fide Holder, will be entitled to recover back the 
 money from such Holder, has been a matter of much 
 discussion. If he is the Acceptor, and the forgery be 
 of the name of the Drawer, he is not (as we have seen') 
 entitled to recover back the money ; because, by his 
 acceptance, he admits, in favor of the Holder, its 
 genuineness. If the indorsement, under which the 
 Holder claims, is forged, the Acceptor is not bound to 
 pay the Bill ; and, if he does, the real owner is still en- 
 titled to recover the amount, as well from the Holder 
 as from the Acceptor.^ If an Indorser pays the' Bill 
 under a forged indorsement of the name of a prior In- 
 dorser, or of the Drawer, he cannot recover back the 
 money from any subsequent Indorsee, to whom he pays 
 it ; because his indorsement admits the genuineness of 
 the antecedent indorsements, as well as the signature of 
 
 but did not discover or give notice of the forgery to the party they had 
 paid, for a week afterwards, it was held that such delay precluded them 
 from recovering back the amount, because thereby the means of resorting, 
 with effect, to the prior parties, was prejudiced, if not defeated '; but the 
 Court were not unanimous in that decision ; Chambre, J., being of opinion 
 that the case came within the general rule of money paid under a mistake 
 of facts, being recoverable back, and that, therefore, the defendant was 
 liable to refund ; and Dallas and Heath, Justices, thinking otherwise, on 
 the ground that it was the plaintiffs' duty to know their customer's hand 
 before they paid the Bill ; and Gibbs, C. J., being the only judge who put 
 the case on the true ground, namely, the plaintiffs' delay in giving notice 
 of the forgery, and having thereby destroyed the defendant's remedy over." 
 ■Chitty on Bills, ch. 9, p. 463, 464 (8th edit. 1833.) See also Salem Bank 
 V. Gloucester Bank, 17 Mass. R. 1 ; U. States Bank v. Bank of Georgia, 
 10 Wheat. R. 333 ; Levy v. U. States Bank, 1 Bing. R. 27. See also 
 Bayley on Bills, ch. 8, p. 335, 326 (5,th edit. 1830) ; Id. ch. 11, p. 484. 
 
 1 Ante, § 113, 262, 448 ; Price v. Neal, 3 Burr. R. 1354. 
 
 3 Ante, \ 262, 448 ; Canal Bank v. Bank of Albany, 1 Hill, N. Y. R. 
 287; Goddard v. Merchants Bank, 2 Sandford, Sup. Ct. N. Y. R. 247. 
 
588 BILLS OF EXCHANGE. [CH. XIL 
 
 the Drawer of the Bill.' But if the person paying 
 the Bill is no party thereto, but pays it for the 
 Acceptor, or for an Indorser whose name is forged, 
 supposing it to be genuine, there, it seems, that if 
 he discovers the forgery and gives notice thereof 
 on the same day to the Holder, he may recover back 
 the money. But if he. does not discover it, or give 
 notice until the next day, then he is not entitled to re- 
 cover back the money from the Holder; because it 
 may vary the rights of the Holder, as to giving notice 
 to the antecedent parties upon the Bill.^ 
 
 1 Ante, § 111, 225, 262, 263, 264, 413. 
 
 2 Wilkinson v. Johnston, 3 Barn. & Cressw. 428; Cocks o. Master- 
 man, 9 Barn. & Ciessw. 902 ; Smith u. Mercer, 6 Taunt. R. 76. — Lord 
 Tenterden, in delivering the opinion of the Court in Wilkinson v. Johns- 
 ton, 3 Barn. & Cressw. 435 to 437, after commenting on the case of Price 
 V. Neal, and Smith v. Mercer, said : " Now, if we compare the facts of 
 the present case, with those of the two cases before mentioned, we shall 
 find some important difference. The plaintiffs were not the Drawees or 
 Acceptors of the Bills, nor the agents of any supposed Acceptor. They 
 discovered the mistake in the morning of the day they made the payment, 
 and gave notice thereof to the defendants in time to enable them to give 
 notice of the dishonor to the prior parties, which was accordingly given. 
 The plaintiffs were called upon to pay for the honor of Heywood & Co., 
 whose names appeared on the Bills among other Indorsers. The very act 
 of calling upon them in this character, was calculated, in some degree, to 
 lessen their attention. A Bill is carried, fur payment, to the person whose 
 name appears as Acceptor, or as agent of an Acceptor, entirely as a matter 
 of course. The person presenting very often knows nothing of the Ac- 
 ceptor, and merely carries or sends the Bill according to the direction that 
 he finds upon it ; so that the act of presentment informs the Acceptor or 
 his agent of nothing more than that his name appears to be on the Bill as 
 the person to pay it ; and it behooves him to see, that his name is properly 
 on the Bill. But, it is by no means a matter of course to call upon a pep- 
 son to pay a Bill for the honor of an Indorser ; and such a call, therefore, 
 imports, on the part of the person making it, that the name of a corres- 
 pondent, for whose honor the payment is asked, is actually on the Bill. 
 The person thus called upon ought certainly to satisfy himself that the 
 name of his correspondent is really on the Bill ; but still, his attention may 
 reasonably be lessened by the assertion, that the call itself makes it upon 
 
CH. XII.] PAYMENT AND OTHER DISCHAK&ES. 589 
 
 § 4.52. Considerations similar to those, which respect 
 the payment of a Bill, when it is made by the original 
 
 him in fact, though no assertion may be made in words. And the fault, if 
 he pays on a forged signature, is not wholly and entirely his own, but 
 begins, at least, with the person who thus calls upon him. And though 
 where all the negligence is on one side, it may, perhaps, be unfit to inquire 
 into the quantum, yet, where there is any fault in the other party, and 
 that other party cannot be said to be wholly innocent, he ought not, in our 
 opinion, to profit by the mistake into which he may, by his own prior mis- 
 take, have led the other ; at least, if the mistake is discovered before any 
 alteration in the situation of any of the other parties, that is, whilst the 
 remedies of all the parties entitled to remedy are left entire, and no one is 
 discharged by laches. Further, it is not easy to reconcile the opinion of 
 some of the judges in Smith v. Mercer, with the prior judgment of the 
 same court in Bruce v. Bruce. That was the case of a victualling Bill, of 
 which the sum was altered and enlarged, and in this alteration the forgery 
 consisted. The whole sum was paid at the victualling office, when the 
 Bill was presented by the Bank of England ; but the forgery being dis- 
 covered, the bank paid back the difference, and then called upon their cus- 
 tomer, the plaintiff, who repaid the bank, and brought his action against 
 the defendant, from whom he had received the Bill in its altered state. 
 Now, if the payment of the whole sum at the victualling oflice could not, 
 by law, be rescinded, on the ground of mistake, the refunding of part by 
 the bank and afterwards by the plaintiff, was an act done in their own 
 wrong, and consequently not binding upon the defendant nor giving aright 
 of action against him. We think the present case approaches, in principle, 
 nearer to that of Bruce v. Bruce than to either of the other two. We 
 think the payment, in this case, was a payment by mistake, and without 
 consideration, to a person not wholly free from blame, and- who ought not 
 therefore, in our opinion, to retain the money unless the act of drawing 
 the pen through the names of the other Indorsers will have the effect of 
 discharging them, and thereby deprive the defendants of their rights to 
 resort to them." In Cocks v. Maslerman, (9 Barn. & Cressw. 902, 907), 
 Mr. Justice Bayley, in delivering the opinion of the Court, said : " This 
 was an action brought by Cox & Co., bankers, in London, to recover a 
 sum of money paid by them to the defendants, on the ground that they, 
 having paid the money in mistake and ignorance of the facts, were enti- 
 tled to recover it back. The Bill was presented the 24th of May, the day 
 on which it became due. The plaintiffs paid it, not knowing that it was 
 not the genuine acceptance of Sewall & Cross. On the following day it 
 was discovered that the acceptance was a forgery, and the plaintiffs on 
 that day gave notice to the defendants. It was insisted that the plains 
 
 B. OF EX. 50 
 
590 BILLS OF EXCHANGE, [CH. XIL 
 
 Acceptor, generally apply, when a payment is made by 
 an Acceptor supra f rated. When, and under what cir- 
 cumstances, he is liable to pay the Bill, and when, and 
 under what circumstances, a payment by him is justi- 
 fiable, or not, so as to give him a right of recourse 
 over against the other parties, for whose honor he ac- 
 cepts and pays the Bill, are considerations which have 
 been, in a great measure, already discussed under the 
 head of Acceptances supra protest} But if the Drawee 
 should accept the Bill, and yet when it becomes due 
 should refuse to pay it, and it should be duly protested. 
 
 tiffs were not entitled to recover, because they, being bankers, ought, 
 before they paid the Bill, to have satisfied themselves that the acceptance 
 was genuine. On the oth@r hand, it was said that the plaintiffs, having 
 given notice of the forgery to the defendants on the day next after the 
 Bill had been paid, were entitled to recover back the money, on the 
 ground that they had paid the money under a mistaken supposition that 
 the acceptance was the genuine acceptance of Sewall & Cross, and the 
 case of Wilkinson o. Johnston was relied on. That case differs from the 
 present in one material point, namely, that the notice of the forgery was 
 given on the very day when payment was made, and so as to enable the 
 defendant to send notice of the dishonor to the prior parties on that day. 
 In this case, we give no opinion upon the point. Whether the plaintiffs 
 would have been entitled to recover, if notice of the forgery had been 
 given to the defendants on the very day on which the Bill was paid, so 
 as to enable the defendants, on that day, to have sent notice to other par- 
 ties on the Bill. But we are all of opinion that the Holder of a bill is 
 entitled to know, on the day when it becomes due, whether it is an hon- 
 ored or dishonored Bill ; and that, if he receive the money, and is suffered 
 to retain it during the whole of that day, the parties who paid it cannot 
 recover it back. The Holder, indeed, is not bound by law (if the Bill be 
 dishonored by the Acceptor), to take any steps against the other parties to 
 the Bill, till the day after it is dishonored. But he is entitled so to do if 
 he thinks fit ; and the parties who pay the Bill ought not, by their negli- 
 gence, to deprive the Holder of any tight or privilege. If we were to 
 hold that the plaintiffs were entitled to recover, it would be, in effect, say- 
 ing that the plaintiffs might deprive the Holder of a Bill of his right to 
 take steps against the parties to the Bill on the day when it becomes 
 due." 
 1 Ante, ij 123 to 125, 235 to 263, 344, 363, 396, 397, 411. 
 
CH. XII.] PAYMENT AND OTHER DISCHARGES. 591 
 
 any person may, in like manner, pay it supra protest, as 
 if he had accepted it supra protest, and it had been dis- 
 honored, and protested when due.^ If, however, he 
 pays the Bill, when, under the circumstances, he is not 
 bound so to do, he cannot entitle himself to any such 
 recourse. But if he has rightfully and properly paid 
 the Bill, he may recover the amount from any one or 
 more of the persons for whose honor he has accepted 
 and paid the Bill, or from any other of the antecedent 
 parties on the' Bill who are liable to such persons for 
 whose honor the payment is made.^ Thus, if the Ac- 
 ceptor supra protest, for the honor of the last Indorser, 
 pays the Bill, he thereby acquires a right to recover 
 the amount against such Indorser, and all antecedent 
 parties on the Bill, who are liable to him. But if he 
 accepts, and pays for the honor of the first Indorser, he 
 has no remedy over for the amount against any subse- 
 quent Indorser, although he has against such Indorser 
 and the Drawer, and, in certain cases, against the origi- 
 nal Drawee also, if he is liable to the Drawer.^ 
 
 1 Fothier de Change, n. 113 ; Nouguiei de Change, Tom. 1, p. 345, 
 346. 
 
 2 Ante, § 124, 125. 
 
 3 Ibid.; Fardessus, Dtoit Comm. Tom. 2, art: 441 ; 1 Bell, Comm. B, 
 3, Ft. 1, ch. 2, § 5, p. 401 (5th edit.) 
 
592 BILLS OF EXCHAJiTGE. [CH. XHI. 
 
 CHAPTER XIII. 
 
 § 453. We have thus gone over the principal doc- 
 trines applicable to foreign Bills of Exchange. There 
 remain certain topics which are, in some measure, con- 
 nected therewith, and are of a kindred nature, upon 
 which some remarks have already been incidentally 
 made, but which deserve a more direct, although a 
 brief exposition and recapitulation in this place.^ These 
 topics are, first, the Guaranty of Bills of Exchange ; 
 and, secondly, Letters of Credit, authorizing persons to 
 draw Bills on the faith of such Letters. These are 
 equally applicable to cases of Foreign, and cases of 
 Inland Bills of Exchange ; but they are more frequent 
 in the former cases. 
 
 § 454. In respect to the former (the Guaranty of 
 Bills), it is well known, and in much use in cases of 
 foreign Bills, in France and other parts of Continental 
 Europe. In France it is known by the name o{ Aval; 
 and in Germany, at least when a Latin appellation is 
 affixed to it, by the name of Avallum? This guaranty 
 is usually placed at the bottom of a Bill of Exchange, 
 
 ' Ante, § 216, 372, 394, 395. 
 
 2 Ante, § 215, 394, 395 ; Pothier de Change, n. 50 ; Pardessus, Droit 
 Comm. Tom. 2, art. 394 ; Code de Coram, art. 141, 142 ; Heinecc. de 
 Camb. cap. 3, ^ 26 to 29 ; Id. cap. 6, § 10 ; Chitty on Bills, ch. 6, p. 272, 
 273 (8th edit. 1833) ; Id. ch. 7, p. 353, 353. 
 
CH. XIII.] GUARANTY OF BILLS. 593 
 
 from which circumstance it is said to derive its name ; ' 
 and sometimes, it is written upon a separate paper.® 
 
 § 455. The effect in France and other foreign coun- 
 tries of this Aval, or Guaranty, subscribed at the bot- 
 tom of the Bill, is, that it binds the Guarantor in solido, 
 and subjects him to the like obligations as the party 
 on the Bill, for whom he has given it, at least unless 
 there is some different stipulation made by the parties, 
 and also entitles him to the like rights as the same 
 party .^ It amounts, therefore, in effect, to a guaranty, 
 that the party for whom it is given shall perform all 
 the obligations which the Bill itself imports on his 
 part.^ The usual manner of accomplishing this pur- 
 pose is, that the name of the Guarantor is preceded by 
 the words "pour Aval." ' But this is not indispensable, 
 for any equivalent form will do ; and even the name of 
 
 ' Ante, § 215, 394, 395. — Merlin gives this derivation under the word 
 Avalage, AvaUson, Avalison, in his Repertoire de Jurisprudence. His 
 language is : " Ces Termes, qui sent synonymes, viennent de I'ancien mot 
 Aval, qui veut dire en bas. lis signifient litt6ralement descenie." 
 
 2 Ante, § 215, 394, 395 ; Pothier de Change, n. 50 ; Pardessus, Droit 
 Comm. Tom. 5, art. 395 ; Code de Coram, art. 142; Savary, Le Parfait 
 N6gociant, Tom. 1, Pt. 3, Liv. 8, p. 205 ; Id. Tom. 2, Parere, 14, p. 94 ; 
 Heinecc. de Camb. cap. 6, ^ 10, 11. 
 
 3 Pardessus, Droit Comm. Tom. 2, art. 394, 397 ; Savary, Le Parfait 
 Negociant, Tom. 1, Pt. 1, Liv. 3, ch. 8, p. 205 ; Heinecc. de Camb. cap. 
 3, § 26, 27 ; Ante, § 372, 394, 395. , 
 
 * Savary says : " Ce mot d'Aval signifie /aire valoir la letire ou billet, 
 e'est-i-dire, les payer en cas qu'ils ne soient acquitt^s ; c'est proprement 
 une caution, car il n'est pas le principal preneur, n'y ayant que celui, qui 
 tire la lettre, ou qui fait le billet au profit d'une autre personne, qui rejoit 
 \es deniers ; de sorte que ceux qui souscrivent, ou qui donnent leur aval 
 sur les lettres et billets, sont obliges avec les tireurs et faiseurs de billets." 
 Savary, Le Parfait N6gociant, Tom. 1, Pt. 1, Liv. 3, ch. 8, p. 205; 
 Jousse, Comm. sur I'Ord. 1673, art. 33, p. 131 to 133. 
 
 5 Pardessus, Droit Comm. Tom. 2, art. 396 ; Jousse, Comm. sur I'Ord. 
 1673, art. 33, p. 131, 132. 
 50* 
 
594 • BILLS OF EXCHANGE. [CH. XIIL 
 
 the Guarantor alone, written in blank, may, if that is 
 the usage, bind the party as a Guai^antor, where it is 
 clear that he is not liable as an Indorser on the Bill.' 
 
 1 Ibid.; Savary, Le Parfait N6gociant, Tom. 2, Parere 14, p. 94; 
 Heinecc. de Camb. cap. 3, ^ 26, 27. — Savary says: "II faiit remarquer, 
 qu'il y a une grande difference entre les signatures en blanc, qui se mettent 
 au dos des lettres de ciiange, et les avals ; car les signatures en blanc ne 
 produisent que deux efFets ; I'un pour remplir au-dessus les ordres en 
 faveur de quelqu'un, ainsi quoil vient d'etre dit ; et I'autre pour y remplir 
 le re9u, lorsque les Porteurs de lettres rej oivent leur argent de ceux sur 
 qui elles sont tiroes ; et les avals ne sent que des cautionnemens, qui pour 
 I'ordinaire se mettent au bas des signatures de ceux, qui lirent les lettres 
 de change, pour la plus grande silret6 de ceux au profit de qui elles sont 
 tiroes ; et celui qui met son aval au bas d'une lettre de change, et non au 
 dos d'icelle, n'y met pas seulement sa simple signature, mais il y met ces 
 mots qui la precedent, ' pour aval,' ou ' pour servir d'aval,' ou ce seul mot, 
 ' aval ; ' de sorte que celui, qui met son aval au bas de la lettre de change, 
 est oblig6 solidairement avec le tireur envers celui au profit duquel elle est 
 tii^e, et envers tous ceux auxquels les ordres auront il^ passes k leur 
 profit, de payer le contenu en icelle lettre, en cas qu'elle ne soit rembour- 
 s6e par les tireurs, lorsqu'elle revient A protest. On doit observer aussi, 
 que I'usage n'est plus de mettre I'aval au bas de la signature de celui, qui 
 tire une lettre de change, parce que les Cambistes ont trouv^, qu'il nuissit 
 a la nfegociation des lettres. La raison en est ; premi^rement, parce que 
 I'aval 6iant mis au bas de la lettre, fait douler de la solvability du tireur, et 
 qu'il n'est pas bien en ses affaires ; ainsi cela pent donner atteinte k son 
 credit. Secondement, parce qu'on s'est apper^u par les inconv6niens qui 
 en sont arrives, que ceux qui mettent leurs avals au bas des lettres 6toient 
 des personnes de n^ant et sans biens, et qu'ainsi c'6toit un pi^ge, qu'on 
 tendoit au Public4>our plus facilement nfegocier les lettres de change, et 
 qui ne produisent aucun bon effet. De sorte que pour ces raisons I'usage 
 de mettre les avals au bas des lettres de change est aboli. Quoique I'usage 
 de mettre les avals au bas des lettres de change soit aboli, ainsi qu'il vient 
 d'etre dit, nfeanmoins on ne laisse pas d'en donner pour la sAretfe de ceux, 
 qui n'ont pas bonne opinion de la solvability des tireurs ; mais c'est au bas 
 des copies des lettres de change, par lesquels avals ceux, qui les donnent 
 promettent de rembourser k ceux au profit de qui sont tiroes les sommes 
 contenues en icelles, au cas qu'elles ne soient pas acquitt6s par ceux sur 
 qui elles sont tir6es, ou que revenant k protest elles ne soient point rem- 
 bours^es par les tireurs. Or, I'intention de I'Ordonnance n'est que d'em- 
 pfecher les Courtiers de donner leurs avals de la maniSre ci-dessus expli- 
 qu6e. En effet, on ne pent pas dire qu'en donnant leurs avals au bas de 
 
OH. XIII.J GUAKANTY OF BILLS. * 595 
 
 § 456. It follows, from what has been said, that, ia 
 the French and Foreign Law, this contract of Aval, or 
 Guaranty, when on the face of the Bill, is, in the ab- 
 sence of any restrictive or controlling words, an agree- 
 ment partaking of the character of the Bill itself, and 
 is negotiable, and passes to, and gives the same rights 
 to the Holder of the Bill as if it were made personally 
 to himself, and subjects him to the like obligations.^ 
 And this quality is, beyond question, highly important 
 to the true value, and easy circulation, and free credit, 
 of Bills of Exchange. The like rule seems to prevail 
 among the Grerman Civilians ; and it probably, also, pre- 
 vails among the nations of Continental Europe gene- 
 rally ; and it is fully recognized in the law of Scot- 
 land.^ 
 
 la copie des lettres de change qu'ils n^gocient pour les Gens d'affaires, ou 
 pour les grandes Compagnies, elles n'ayent pas autant de force et de vertu 
 pour I'obligation solidai que leurs simples signatures en blanc an dos des 
 letttes de change ; et on ne pent pas dire aussi qu'en donnant par les 
 Courtiers leurs avals au has de copie des lettres, qu'ils ayent fait le com- 
 merce du Change, puisque les avals ne sont que de simples cautionne- 
 mens, qui ne pr6judicient en aucune mani^ire au Public ; au contraire cela 
 lui peut 6tre de quelque ulilite." Savary, Le Parfait N6gociant, Tom. 2, 
 Parere, 14, p. 94. 
 
 * Pardessus, Droit Comm. Tom. 2, art. 397 ; Savary, Le Parfait N6go- 
 ciant, Pt. 1, Liv. 3, ch. 8, p. 205 ; Heinecc. de Camb. cap. 3, ^ 26 to 28. 
 
 2 Heinecc. de Camb. cap. 3, ^ 26 to 29 ; Id. cap. 6, ^ 10 ; I Bell, 
 Comm. B. 3, ch. 2, § 4, p. 376 (5th edit.) ; McLaren v. Watson's Execu- 
 tors, 26 Wend. R. 425, 442 to 444, Mr. Senator Verplanok's opinion. Ia 
 his elaborate opinion it is, among other things, said : "Bills of Exchange 
 are negotiable according to the ' custom pf merchants ; ' and ' the law of 
 merchants, and the law of the land,' said Lord Mansfield, 'are the same.' 
 Promissory notes are made negotiable by statute, which declares that 
 they shall have the same effect, and be negotiable in like manner as inland 
 Bills of Exchange, according to the custom of merchants. Now the cus- 
 tom of merchants, as to Bills of Exchange, is not merely the local, mer- 
 cantile, habitual, and ordinary usage of England, but it was, and is, that of 
 the civilized commercial world ; Bills of Exchange having, as all our text- 
 
596 * BILLS OP EXCHANGE. [OH. XIII. 
 
 § 457. Whether, under pur law, a like negotiable 
 quality belongs to the like guaranty upon the face of 
 
 writers (Blaokstone, Kent, and others) inform us, grown into use origin- 
 ally on the Continent of Europe, and passed over with the extension of 
 commerce into England. The Continental Law, and custom of merchants, 
 accompanied the usage into that country, from which we have obtained 
 alike the usage and the law. Thence it is, that the work of Pothier, ' On 
 the Contract of Exchange,' or negotiable paper, is of authority, and is 
 cited in England as to the mere techi^ical and arbitrary usages of that 
 law ; and, as well as the other and greater works of that learned and phi- 
 losophical jurist upon the general principles of contracts, ' is alike law at 
 Orleans and at Westminster Hall.' The custom of general proffers or under- 
 takings of guaranty of negotiable paper, intended to accompany the paper, 
 has not become very common in England, so as to give rise to litigation in 
 the courts, as I find no decision there either expressly affirming or denying 
 their effect in the hands of subsequent Holders. But the validity of the 
 usage seems to be taken for granted in the modern case, already cited, of 
 Phillips ti. Bateman, 16 East, tl. 356, where a separate advertisement of 
 guaranty of notes of a bank, in doubtful credit, would have been allowed 
 to have been valid and binding, had it not been for other legal difficulties. 
 On the Continent of Europe, such a practice of guaranty is well known. 
 This guaranty of negotiable paper is called aval by the French, and aval- 
 lum by the German civilians. The present French Code of Commerce 
 declares that the payment of a Bill of Exchange, independently of the 
 acceptance and indorsement, may be secured by a guaranty (par un aval.) 
 This guaranty is given by a third person, either on the Bill itself or by a 
 separate writing. (Code de Coram. Liv. 1, tit. 8, § 141, 143.) The per- 
 son thus guarantying is bound in the same manner as the Drawer and 
 Indorser. The same article is found in the code of Napoleon's own tithe, 
 regulating the law of the then French Empire, and it is still, in this re- 
 spect, as it was before, the law of Belgium, Holland, and a large part, if 
 not all, of Italy and Germany.lt was, indeed, but the declaring and recog- 
 nising of the former law of Germany as it is found in Heineccius's Ele- 
 menta Juris Cambialis, and of France, as expounded by Savary and Po- 
 thier. This last oracle of Continental Commercial Law says, that the 
 guaranty may be either special, of acceptance, or of a particular indorse- 
 ment, or general, which last gives to the Holder the same right of action 
 which any party may have against the Drawer. The strict form, he states 
 to be the writing or signing upon the Bill itself ; but he adds, that ' an 
 experienced merchant informs him that guaranties, (avals,) in this form, 
 are scarcely any longer in use ; and that they were commonly made by a 
 separate writing (far un billet separe.') (Pothier, Contrat de Change, 
 
CH. XIII.] GUARANTY OF BILLS. 597 
 
 the Bill, so as to give the Holder a complete legal 
 right thereto as well as to the Bill, has been a question 
 
 part 2, § 50.) The same custom and the same legal rule prevail also in 
 Scotland, where the Law Merchant, as to negotiable paper, is so closely 
 assimilated to that prevailing in England, that the decisions of Westmin- 
 ster Hall on that subject are familiarly cited as authority in the courts 
 and the books. Mr. Bell, in his Commentaries on the Law of Scotland, 
 1 Comm. 376, after stating the question, ' whether the indorsation of a 
 Bill, which has been guarantied by a separate letter, accompanied by de- 
 livery of the letter of guaranty, will give the same right as if the letter 
 itself were a negotiable instrument,' adds, that 'it is generally held by 
 bankers, that, when they thus acquire a right to the guaranty they are 
 entitled to payment from the surety, as if the letter had been originally 
 addressed to themselves,' and that, in conformity with this "understanding, 
 it had been so adjudged in the highest court of judicature. He, indeed, 
 criticises the ground of the decision, but the case of Sir W. Forbes v. 
 McNab, decided by the Lords of Sessions, which he cites and states, 
 recognizes the usage, and sanctions its legal effect. I, therefore, think it 
 probable, that this ' custom of merchants ' has passed over to us from our 
 early Dutch colonists, or perhaps more recently from Scotch and French 
 merchants settled among us, without having first travelled hither through 
 the courts or the counting-houses of England. The custom of a general 
 and indefinite guaranty, either on the note or Bill, or on a separate paper 
 referring to it, is well known to be common among our men of business 
 in this State, audit is with the understanding of its passing with the note. 
 If this were merely a local custom here, it could' not control or contradict 
 the settled law of the land ; but it rather appears to be a part of the uni- 
 versal custom of merchants, as to negotiable paper in ordinary use here as 
 well as on the Continent of Europe ; but which, not having been equally 
 common in practice in England, has never received the positive sanction of 
 any adjudication there. I submit these views of history and authority, 
 bearing on this question, to the consideration of those members of the Court 
 who may not be. satisfied to rest their decision solely upon the application 
 of those great principles of the doctrine of contracts to the stipulation of 
 guaranty, upon which I mainly rely." Mr. Bell, in his Commentaries 
 (Vol. 1, p. 376, 5th edit.) says : "It has been questioned, whether the 
 indorsation of a Bill, which has been guarantied by a separate letter, ac- 
 companied by delivery of the letter of guaranty, will give to the Indorsee 
 the same right, as if the letter itself were a negotiable instrument pass- 
 ing without any latent qualification. It is generally held by bankers that, 
 when they thus acquire right to the guarantee, they are entitled to de- 
 mand payment from the surety, as if the letter had originally been 
 
598 BILLS OF EXCHANaE. [CH. XIH. 
 
 of considerable discussion.' It has been said by a dis- 
 tinguished elementary writer, that, even in cases where 
 a valid engagement of guaranty has beea made, that a 
 Bill of Exchange or note shall be paid, it is effectual 
 only between the original parties to it, and not trans- 
 ferable at law, or in equity, or in bankruptcy.® But 
 this language is quite too general ; for it is very cer- 
 tain that the party to whom the guaranty is originally 
 made may, in equity, assign his right to the Holder at 
 the same time that he assigns |;he Bill, and thereby 
 vest in him the equitable, although not the legal, title 
 thereto. The language should further be understood 
 to be limited to cases where the guaranty, if it is on 
 the face of the Bill, is, by its very terms, confined to 
 the original party to whom it is given ; and the lan- 
 guage does not, certainly it ought not to be, extended 
 to cases by its very terms, the guaranty is to such 
 party, and to his order, or to the bearer, or to any per- 
 son who shall subsequently become the Holder; for 
 there does not seem to be any ground or principle in 
 
 addressed to themselves ; and this has been adjudged by the Court of 
 Session in reliance on such understanding. Before the point can be held 
 established a much more deliberate inquiry must be made into the usage ; 
 if, indeed, any usage can establish a point against, the principles of law, 
 •which this seems to be. It may be, that the very design of expressing 
 the guaranty by letter, instead of indorsing the Bill, is to preserve to the 
 viriiter the full benefit of his remedy against the person to whom the letter 
 is addressed ; and it is anomalous at once to confer on such an engagement 
 the privileges of an indorsible and negotiable instrument, and yet not to 
 give to the Grantor of it the benefit of that strict negotiation which is the 
 counterpart of the privileges of Bills." 
 
 1 See Chitty on Bills, ch. 6, p. 272, 273 (8th edit. 1833) ; Upham v. 
 Prince, 12 Mass. R. 14 ; Miller v. Gaston, 2 Hill, N. Y. R. 188 ; Ketchell 
 V. Burns, 24 Wend. R. 456 ; Lequeer v. Prosser, 1 Hill, N. Y. R. 256 ; 
 S. O. in Err. 4 Hill, N. Y. R. 420. 
 
 2 Chitty on Bills, ch. 6, p. 373 (8th edit. 1833.) 
 
CH, Xni.] GUARANTY OP BILLS. 599 
 
 our. law, which will, in such a case, limit the right, 
 contrary to the avowed intention of the parties to the 
 first or origi^al Guarantee.^ On the contrary, there 
 would seem to be very urgent reasons why it should 
 be deemed equivalent to a continued promise upon a 
 valid consideration to every successive Holder for a 
 valuable consideration, toties quoties, that the Guarantor 
 promises the like guaranty to him personally. 
 
 §458. There is great weight of authority for the 
 maintenance of this doctrine, as well upon general 
 principles as upon the usage of the commercial world. 
 And, with a view to the convenience and the security 
 of merchants, as well as the free circulation and credit 
 of negotiable paper, it would seem that such a guaranty 
 upon the face of a BUI of Exchange, not limited to any 
 particular person, but purporting to be general, with- 
 out naming any person whatsoever, or purporting to be 
 a guaranty to the Payee or his order, or to the bearer, 
 ought to be held, upon the very intention of the par- 
 ties, to be a complete guaranty to every successive per- 
 son who shall become the Holder of the Bill,® Nay, 
 the doctrine has been pressed farther, and it has been 
 maintained with great ability and cogency of reasoning, 
 that such a guaranty, upon a separate paper, ought to 
 
 1 See Phillips v. Bateman, 16 East, R. 355 ; Walton v. Dodson, 3 Carr. 
 & Payne, 163 ; McLaren v. Watson's Execufois, 26 Wend. R. 425, 430 ; 
 S. C. 19 Wend. R. 557. But see L'Amoureaux v. Hewitt, 5 Wend. R. 
 307; Adams v. Jones, 12 Peters, R. 207, 213; Springer v. Hutchinson, 
 1 Appleton, R. 359, is contra. 
 
 2 McLaren v. Watson's Executors, 26 Wend. R. 425 ; S. C. 19 Wend. 
 R. 557, 566. See also Walton v. Dodson, 3 Carr. & Payne, 162 ; Brad- 
 ley V. Carey, 3 Greenl. R. 233 ; Adams D.Jones, 12 Peters, R. 207. But 
 see L'Amoureaux v. Hewitt, 5 Wend. R. 307 ; Millet v. Gaston, 2 Hill, 
 N. Y. R. 188 ; Upham v. Prince, 12 Mass. R. 14 ; Adams v. Jones, 
 12 Peters, R. 207, 213 ; Ante, ^ 373, and notes, 215, 394, 395. 
 
BOO BILLS OF EXCHANGE. [CH. XIH. 
 
 be held negotiable in the same manner, and to the 
 same extent, in favor of each successive Holder of the 
 Bill, as if it were upon the face' of the original Bill.i 
 
 1 Adams v. Jones, 12 Peters, R. 207, 213 ; Walton v. Dodson, 3 Cair. 
 & Payne, 163 ; Bradley v. Carey, 3 Greenl. R. 233, 234. See also the 
 opinion of Mr. Senator Verplanck, in McLaren «. Watson's Execuiors, 
 26 Wend. R. 425. — Mr. Senator Verplanck's opinion (ubi supra) con- 
 tains a very masterly review of the whole subject, both when the guaranty 
 is upon a Bill, and when it is upon a separate paper. He says : " The 
 next point is one, the decision of which must materially affect and regulate 
 daily commercial usage in respect to loans and discounts. The original 
 defendant guaranties the payment of an indorsed note, made for accommo- 
 dation. The guaranty is written on a separate paper, and describes the 
 note with which it bears contemporaneous date. It is general in its terms ; 
 not being a stipulation with any named person, but is in the broad and very 
 common form. 'I hereby guaranty the payment ' of the note, which it 
 -then describes. It is now maintained that such a guaranty, being a pro- 
 mise in writing, naming no Promisee, can take effect only as a special con- 
 tract with the first person, who, on the faith of it, becomes the Holder of 
 the note ; and, as no contract or mere chose in action is negotiable, except 
 such as fall within the definition of promissory notes, or Bills of Exchange, 
 this guaranty it is argued is strictly a personal contract between the Gua- 
 rantor and the Acceptor of the guaranty only, and it therefore cannot be 
 transferred so as to be enforced in the name of any subsequent party. The 
 special contract of warranty, therefore, between Watson and Frye did not 
 accompany the note as appurtenant to it and negotiable with it, when it 
 was indorsed to the plaintiff. The Supreme Court on this point intimate 
 the opinion, that, had the guaranty been written on the note, it might 
 have been treated as a mere indorsement by striking out the special words, 
 and leaving barely the indorsed name ; but they hold, that a separate gua- 
 ranty of a negotiable note or Bill, does not, like an acceptance or indorse- 
 ment, run with its principal, but must end where it began^ like a bond, or 
 other chose in action. This intimation of the distinction between the effect 
 of an indorsed guaranty, which may be converted into an ordinary indorse- 
 ment by striking out words, and that of a stipulation of guaranty, written 
 on a separate paper, seems to be in contradiction to the decision of the 
 same court in a former case. In L'Amoureaux v. Hewitt, 5 Wendell, R. 
 307, they are expressly placed on the same ground. It was there held, 
 that an indorsed guaranty could not be stribken out and converted into a 
 bare indorsement, but that every guaranty is a special contract with the 
 person first receiving it, and can be enforced only in his name. ' The de- 
 fendant,' said Chief Justice Savage, 'was liable upon his guaranty, not as 
 
CH. XIII.] LETTERS OF CREDIT. 601 
 
 § 459, In respect to Letters of Credit, which are in 
 common use in our commerce with foreign countries, 
 
 an Indorser, but as the party to a special contract, which might have been 
 written on a separate piece of paper as well as on the back of the note.' 
 If these views of the nature of the contract of general guaranty of the pay- 
 ment of Bills .or notes be correct, and, if there be no positive rule or cus- 
 tom of the Law Merchant, giving effect to guaranties of notes or Bills, so 
 as to make them pass with the paper to which they relate, then I do not 
 see how, upon the principles of our law, as to the assignment of choses in 
 action, we can resist the' conclusion, that such a contract does not go 
 beyond the first taker of the paper, but can be enforced only in the name 
 of the actual Guarantee. Let us, however, examine what is the real un- 
 dertaking or promise of such a Guarantor. A guaranty, according to its 
 derivative and essential meaning, is the warranty of some act or debt of 
 another. It is an undertaking that the engagement or promise of some 
 other person shall be performed. In its legal and commercial sense, it is 
 an undertaking to be answerable for the payment of some debt, or the due 
 performance of some contract or duty by another person, who himself 
 remains liable for his own default. Such a warranty may be either of a 
 prior debt, or previously subsisting contract, or it may be for the due dis- 
 charge of some future debt or contract between the original party and 
 some other person who may give him credit. In the first case, our law, 
 which enforces no contract not supported by some consideration, requires 
 that there be some good consideration rec^ved by the Guarantor. In the 
 other case, where the Guarantor holds out his engagement of secondary 
 liability as an inducement to any one who may, upon the faith of that pro- 
 mise, give credit in any way to a third person, if there be no special con- 
 sideration of benefit received and acknowledged by the Guarantor, as there 
 often is, yet, the same consideration of debt or damage which supports the 
 claim against the principal in default, equally applies to and supports the 
 right of action against the Guarantor. This rests upon the familiar prin- 
 ciple, that a suflScient consideration for any contract may be either an 
 actual benefit to the party promising, or else some prejudice, damage, sus- 
 pension of right, or possibility of loss to the party to whom the promise is 
 made or proflTered, and by reason of his acceptance thereof. 3 Burr. K. 
 1663, per Yates, J., whose definition is adopted in 1 Williams's Saun- 
 ders, 211, note 2. See also Jones v. Ashburnham, 4 East, R. 455; 
 12 Wendell, R. 381. With whom, then, may such a contract be made? 
 Of course it may, as in other contracts, be made with a specifically named 
 or described individual to whom the promise and undertaking to become 
 answerable for a third person is addressed. Such an offer or promise to 
 any specified individual to become liable for the debt or acts of another, 
 
 B. OP EX. 51 
 
602 BILLS OP EXCHANGE. [CH. XIIL 
 
 it may be stated, that a Letter of Credit (sometimes 
 called a Bill of Credit) is au open letter of request, 
 
 when it is accepted, by giving the credit or trust thus guarantied, is com- 
 plete, and it can only be enforced by, or in the name of, the original party 
 giving credit on such guaranty. When the default occurs, the promise to 
 make good that default becomes binding, and like other choses, in action, 
 except notes and Bills, it is confessedly not negotiable or transferable in 
 law so as to give a right of action in his own name to the new Holder. 
 But such a contract of warranty may also be offered and perfected without 
 any individual being named in the stipulation or promise of guaranty. It 
 may be made as many other contracts are made, by a general offer to any 
 one who may accept the terms, and in such case the offer, when accepted, 
 binds the Promissor. Such is the ordinary case of a contract made by 
 effect of an advertisement or public notice, as to pay a certain price for 
 materials, wheat, wood, &o., delivered at a specifie place or time. So, 
 too, as was said by the Chancellor, Cobham v. Upcott, 5 Viner, Abr. 527, 
 cited in Fell on Guaranties, 44, 'If a man make offers of a bargain, and 
 then write down and sign them, and another person take them up and 
 proffer his Bill, that will be a sufficient agreement to take the case out of 
 the statute.' The validity and obligation of such a promise or undertak- 
 ing, proffered to all the world and accepted by an individual, grow out of 
 the very nature of a contract, as well as the daily usage and necessities of 
 life and business. There is no need of authority to show that the same 
 rule must apply to the similar affer of guaranty. But there is no want of 
 express authority on that head. Thus, as remarked by Judge Cowen, 
 'In Phillips V. Bateman, 16 East, R. 355, it was not denied, that a public 
 promise by advertisement to guaranty the notes of' a bank, upon which 
 there was a run, would bind the promissor, and subject him to action at 
 the suit of those v^ho should forbear to press the bank, provided a con- 
 sideration had been duly expressed, and an intent had appeared so to pay, 
 although no one could be named.' So, again, in Walton, assignee, v. 
 Dodson, 3 Carr. & Payne, 163, it was held of a guaranty, without address 
 to any person : ' Such a guaranty will enure to the benefit of those to 
 whom or for whose use it was delivered.' Again, in one of the courts of 
 our own country, where the guaranty was in a letter to the person for 
 whose benefit it was to be used, and was only a general undertaking to be 
 answerable for his purchases to a certain amount, the Court considered it 
 as a guaranty, which, by .its plain intendment, might be offered to any one 
 and accepted by any one. 'The contract, according to its legal intent, is 
 proffered to any one who was the vendor of such goods as the purchaser 
 wanted.' Bradley v. Carey, 3 Greenl. R. 233. In every such case, the 
 undertaking of guaranty, though general in its offer, becomes, when ac- 
 
CH. XIII.] LETTERS OP CREDIT. 603 
 
 whereby one person (usually a merchant or a banker) 
 requests some other person or persons to advance mo- 
 
 cepted, definite and binding between the Guarantor and the person acting 
 or trusting upon his credit. But,' when thus made definite and con- 
 clusive, the same broad principle of the law must still apply, that rights 
 of action, not made negotiable by statute, or the special custom of mer- 
 chants, can only be enforced in the name of the direct party to the con- 
 tract. What distinction, then, exists between the ordinary commercial 
 guaranty, as of a credit for goods purchased, and a guaranty of a nego- 
 tiable Bill or note ?. There is a clear and manifest difference in the sub- 
 stance of the contract or undertaking itself in regard to the parties to 
 whom the guaranty is proffered, and by whom it may be accepted, although 
 it is still governed by the same general legal principles. The ordinary 
 mercantile guaranty of a debt, or a purchase, or a credit, is a stipulation 
 to become liable for another, for some specific debt or debts, not negotiable 
 in the hands of a creditor, and which he cannot pass away. When the 
 debt is contracted on such a guaranty, the primary liability cap go no 
 further than the first parties ; and, therefore, there is no promise or un- 
 dertaking held out by the Guarantor to any other person to give a subse- 
 quent credit. Not so as to the undertaking or ofi[er made by a guaranty 
 of payment of negotiable paper. That is a positive undertaking and pro- 
 mise to become liable for its due payment, in case of the default of the 
 original parties, and this offer is held out to every person who may, on the 
 faith of it, become the legal Holder of such paper. It is a promise or un- 
 dertaking, held out to a second, third, or fourth Indorsee, as much as to 
 the first Holder ; and the last of these, who advances his money upon such 
 a. guaranty, looks as much as the first to the promise of the Guarantor. 
 The offer is of an indefinite number of successive guaranties, whilst, in the 
 case of a guaranty of payment for goods bought on credit, the offer, though 
 it may be general in its address, is only of some specific transaction which 
 becomes final as to the parties when the offer is accepted. The guaranty 
 may not be negotiable in itself as a separate contract, but it is a collateral 
 promise to any and each, in his turn, of the persons known or unknown, 
 who may give credit to a negotiable note, coupled with such a guaranty. 
 But, as it can be enforced only by the Holder, who is entitled to receive 
 payment from the parties to the note itself, there can be no breach of such 
 an undertaking, or any cause or ground of action, in respect to any one, 
 who, after having made himself a party to the contract, parts with the 
 note and ceases to be entitled to its payment. I cannot imagine any reason 
 of justice, policy, or legal authority, for giving legal effect to a contract of 
 guaranty for any future credit to another, proffered in writing to any per- 
 son indiscriminately, who will give such credit, which does not equally 
 
604 BILLS OF EXCHANGE. [CH. XIII. 
 
 neys, or give credit, to a third person, named therein, for 
 a certain amount, and promises that he will repay the 
 same to the person advancing the same, or accept Bills 
 drawn upon himself, for the like amount. It is called 
 a general letter of credit, when it is addressed to all 
 merchants, or other persons in general, requesting such 
 advance to a third person ; and it is called a special 
 letter of credit, when it is addressed to a particular 
 person by name, requesting him to make such advance 
 to a third person.^ 
 
 apply to the remote Holder of a note or Bill, who has taken it after suc- 
 cessive intermediate Holders, but still upon the faith of the original gua- 
 ranty. He also guaranties the payment of a note by the very use of those 
 words ; and, in their common as well as their legal meaning and under- 
 standing, holds forth this undertaking or engagement. 'I promise to any 
 person who may upon the faith of this promise, become by purchase, dis- 
 count, or otherwise, the bona fide Holder of this note, to pay the same in 
 case of its not being duly paid when at maturity.' The consideration may 
 be either some specific payment, security, or benefit to the Guarantor, or 
 it may be merely the value of the note paid at his request, and on his 
 credit, to the person for whose benefit the guaranty is made and intended. 
 In the present case the consideration is the value of the note acknowledged 
 in the guaranty itself to have been received, and shown in evidence to have 
 been paid in cash at the request of the Guarantor to Tuthill, the last In- 
 dorser, at the date of the guaranty. The whole contract and transaction, 
 when analyzed, is briefly this : Watson, as an inducement to, and in con- 
 sideration of, Frye's advancing, at his request, to Tulhill, the value of a 
 certain note, upon the security of that indorsed note and his guaranty, un- 
 dertakes and promises, for the benefit of Frye, to any person who shall 
 afterwards take and hold the note, to be liable for the payment of the same 
 if not duly paid at maturity. Now, it seems plain to me, upon the com- 
 mon principles of the law of contracts, applied to the nature of this trans- 
 action, and of its terms and the obvious understanding of the stipulation 
 itself, that such a guaranty of negotiable paper can be enforced by, and in 
 the name of any subsequent Holder of such paper; who has taken it on 
 the good faith of an accompanying guaranty, whether written on the back 
 of the note, or upon a separate paper." See another citation from the 
 same opinion, Ante, ^ 456, note. See also 1 Bell, Comm. B. 3, ch. 2, 
 § 4, p. 371 to 374 (5th edit.) 
 
 ' Com. Dig. Merchant, F. 6 ; Marius on Bills, p. 35, 36 ; MoUoy, de 
 
CH. XIIL] letters op CKEDIT, 6.05 
 
 § 460. Marius gives the following description of 
 Letters of Credit, of both sorts, and of their use and 
 obligation. " Now, letters of credit, for the furnishing 
 of moneys by exchange, are of two sorts, the one gene- 
 ral, the other special ; the general letter of credit is, 
 when I write my open letter directed to all merchants, 
 and others, that shall furnish moneys unto such and 
 such persons, upon this my letter of credit, wherein, 
 and whereby I do bind myself, that what moneys shall 
 be by them delivered unto the party, or parties, therein 
 mentioned, within such a time, at such and such rates 
 (or, in general terms, at the price current), I do thereby 
 bind myself for to be accountable and answerable for 
 the same, to be repaid according to the Bill or Bills of 
 Exchange, which, upon receipt of the money so fur- 
 nished, shall be given or delivered for the same. And, 
 if any money be furnished upon such my general letter 
 of credit, and Bills of Exchange therefore given, and 
 charged, drawn, or directed to me, although, when the 
 Bills come to hand, and are presented to me, I should 
 
 Jure Marit. B. 2, ch. 10, § 36 ; Bouvier's Law Dictionary, " Letter of 
 Credit " ; 3 Chitty on Cona. Law, 336, 337. Mr. Hallam, in his work on 
 the Middle Ages (Vol. 4, ch. 9, Pt. 2, p. 255, note, Amer. edit. 1821), 
 has remarked, that " There were three species of paper credit in the deal- 
 ings of merchants : 1. General letters of credit, not directed to any one, 
 which are not uncommon in the Levant. 2. Orders to pay money to a 
 particular person. 3. Bills of Exchange regularly negotiable. Boucher, 
 t. ii. p. 621. Instances of the first are mentioned by Macpherson, about 
 1200, p. 367. The second species was introduced by the Jews about 1183, 
 (Capmany, t. i. p. 297,) but it may be doubtful whether the last stage of 
 the progress was reached nearly so soon. An instrument in Reymer, how- 
 ever, of the year 1364, (t. vi. p. 495,) mentions literae cambitoriae, which 
 seem to have been negotiable Bills ; and by 1400 they were drawn in sets, 
 and worded exactly as at present. Macpherson, p . 6 14, and Beckman , Hist, 
 of Inventions, vol. iii. p. 430, give from Capmany an actual precedent of a 
 Bill dated in 1404." 
 
 51* 
 
606 BILLS OF EXCHANGE. [CH. XIH. 
 
 refuse to accept thereof, yet (according to the custom 
 of mercha,nts) I am bound and liable to the payment 
 of those Bills of Exchange, by virtue and force of such 
 my general letter of credit ; because he or they, which 
 do furnish the money, have not so much (if any) respect 
 unto the sufficiency or ability of the party, which doth 
 take up the money, as unto me, who have given my 
 letter of credit for the same, and upon whose credit, 
 merely, those moneys may be properly said to have been 
 delivered. The special letter of credit is, when a mer- 
 chant, at the request of any other man, doth write his 
 open letter of credit, directed to his factor, agent or 
 correspondent, giving him order to furnish such or such 
 a man, by name, with such or such a sum of money, at 
 one or more times, and charge it to the account of the 
 merchant that gives the letter of credit, and takes 
 Bills of Exchange, or receipts, for the same." And 
 again J "Now, in the general letter of credit^ he' that 
 writes it doth make use of his credit for his own 
 account and concernments in his way of trade ; and, 
 iherefore, there need no more than his letter of credit 
 to make him liable to repay what shall be so furnished. 
 But in the particular letter of credit, he that writesjhe 
 letter doth it not to make use of the moneys himself, 
 or to be employed for his own use, but for the use and 
 accommodation of some other man, at whose request he 
 is willing, and doth write his letter of credit; and, 
 therefore, it is very expedient and ordinary for him, at 
 whose entreaty the letter is written, at the writing, and 
 upon receipt thereof, to give security by bond, or other- 
 wise, unto the merchant, that gives the letter of credit, 
 for repayment unto him, his executors, or assigns, of 
 all such moneys as shall be received by virtue of the 
 said letters of credit ; for the merchant, by his letter. 
 
CH. XIII.] LETTERS OF CREDIT, 607 
 
 stands sufficiently bound to his correspondent; and, 
 therefore, it is no more hut reason, that he, for whom 
 the letter is granted, should give (as it were) his coun- 
 terbond for repayment. The Bills of Exchange, which 
 are to be made for moneys taken up by letters of 
 credit, do run in the ordinary form of Bills of . 
 Exchange." ^ 
 
 J 461. This language would seem to be sufficiently 
 explicit to establish the doctrine that general letters 
 of credit partake of a negotiable quality, and, according 
 to the usage of merchants, are treated as a direct 
 promise to repay the advance, or to accept and pay the 
 Bill, which shall be drawn upon the advance, where 
 the letter purports such a promise to repay, or accept 
 and pay the Bill. There does not seem to be any 
 ground to doubt, that the letter of credit is an available 
 promise in favor of the person who makes the advance 
 upon the faith of the letter, if the letter is specially 
 addressed to him. But it has been made a question, 
 whether, if the letter of credit is a general one, ad- 
 dressed to any person or persons generally, without 
 any other designation, the person making the advance 
 upon the faith thereof,, is entitled to a punctual per- 
 formance of the promise contained therein, from the 
 person signing the letter, as a floating contract, de- 
 signed to circulate as a direct promise, in the nature of 
 a negotiable security, for the benefit of any party ad- 
 vancing funds on the faith thereof; or whether the 
 remedy exclusively lies between the original party, 
 writing the letter, and the party to whom, and for 
 whose immediate use it was given. 
 
 1 Marius on Bills, p. 36, 37. See also Jousse, surl'Ord, 1673, tit. 5, 
 Prelim, p. 66. 
 
608 BILLS OF EXCHANGE. [CH. XIIL 
 
 § 462. The question does not appear to have been 
 positively decided, or, indeed, to have been elaborately 
 discussed in England.* But, in America, it has come 
 under judicial examination and decision in various cases. 
 In the Supreme Court of the United States, the doc- 
 trine has been directly affirmed, on several occasions, 
 that the Letter-writer is positively and directly bound 
 to any party making*the advance upon the faith of the 
 Letter ; and that it applies not only to cases where the 
 Letter of Credit purports, on its face, to be addressed, 
 generally, to any person or persons whatsoever, who 
 should make the advance, but also in cases where the 
 Letter of Credit is addressed solely to, the person to 
 whom the advance is to be made, and merely states 
 that the person signing the same will become his surety 
 for a certain amount, without naming any person to 
 whom he will become security, if it is obviously to be 
 used to procure credit from some third person, and the 
 advance is made upon the faith of the Letter by such 
 third person.^ And it has been further held, that, if 
 
 1 It seems, however, to have arisen in England, as may be gathered froig 
 the folloviring note to the case of The Company of Feltmakers v. Davis, 1 
 Bos. & Pull. 101, note (c). It is there said " In Marchington v. Vernon 
 and others, Sittings at Guildhall, Trin. 27 Geo. III. B. R., which was 
 assumpsit on a Bill of Exchange, by the Holder against the defendants 
 (assignees of the Drawee), who had given a promise to the Drawer, that 
 they would honor the Bill, Buller, J., said : Independent of the rules, which 
 prevail in mercantile transactions, if one person makes a promise to ano- 
 
 _ ther for the benefit of a third, that third person may maintain an action 
 upon it. See Comb. R. 219; 8 Mod. R. 117; also Dutton u. Pool, 1 
 Vent. R. 318, 332, cited and relied on by Lord Mansfield in Martyn v. 
 Hinde, Cowp. R. 443." But see MoUoy, B. 2, ch. 10, § 36, which is 
 directly in point. 
 
 2 Lawrason v. Mason, 3 Cranch, R. 492 ; Boyce i). Edwards, 4 
 Peters, R. 121 ; A-dams v. Jones, 12 Peters, R. 207, 213 ; Ante, ^ 459 
 to 461. 
 
CH. XIII.J LETTERS OF CREDIT. 609 
 
 the engagement be, to accept and pay any Bills, not 
 exceeding a limited amount, drawn by the person, to 
 whom and for whose benefit, the advance is to be 
 made ; in such a case, the person, taking such Bills, 
 and making the advance upon the faith thereof, if the 
 promise 6f the Letter-writer cannot be treated as a 
 positive acceptance of such Bills, is entitled to treat it 
 as a direct promise to nimself to accept and pay such. 
 Bills, which promise he may enforce, accordingly, in an 
 action in his name, founded upon such a Letter of Credit, 
 against the writer thereof.'^ 
 
 1 Ante, § 459 to 461 ; Boyce v. Edwards, 4 Peters, E. 121. See also 
 Wildes V. Savage, 1 Story, R. 22, 26, 27 ; Coolidge v. Payson, 2 Wheat. 
 Ki 66 ; Ogden v. Glllingham, 1 Baldwin, R. 45 ; Murdocku. Mills, II Mete. 
 R. 5 ; Bradley u. Carey, 3 Greenl. E. 234 ; Adams v, Jones, 12 Peters, 
 R. 207, 213. This subject was discussed at large in the Circuit Court of 
 the United States, in the case of Russell v. Wiggin, 2 Story, R. 213. The 
 case arose upon a Letter of Credit given in Boston, Massachusetts, by the 
 agent of Messrs. Wiggin, of London, to certain persons in Boston, who were 
 about to send a ship to India, authorizing them or their agent, who should 
 go out in the ship, to draw Bills on them in London, for a certain amount 
 of money, and promising to accept the Bills drawn in India, in pursuance 
 of the Letter of Credit. The Bills were accordingly drawn in India, and 
 when presented in London, were refused acceptance. In the mean time, 
 the Boston merchants had failed. The Bills were taken by the Payees in 
 India, upon the faith of the Letter of Credit ; and the. Payees brought a 
 suit in Boston, and attached property of the London Drawees. Two 
 questions were made at the argument : 1. Whether the law of England, 
 or the law of Massachusetts was to govern, as to the liability of the de- 
 fendants to the plaintiffs upon the Letter of Credit. 2. Whether the 
 action which was founded on the promise to accept the Bills, supposed to 
 arise in favor of the Payees from the Letter of Credit, was maintainable; 
 or. Whether the action was unmaintainable by the plaintiffs for want of 
 privity between them and the defendants, the Drawees. On these ques- 
 tions the Court said: " There are two questions properly arising upon the 
 state of facts presented to this Court. The first is. Where is the contract 
 of the defendants to be deemed to be made? Or, in other words, Is it, 
 as to its obligation, construction, and character, to be governed by the law 
 of Massachusetts, where it was signed and executed by the agent of the 
 defendants ? Or, is it to be deemed a contract made in England, where the 
 
610 BILLS OF EXCHANGE. [ch'xIIL 
 
 § 463. Mr, Bell in his learned Commentaries, has 
 given his own opinion, as to the nature and operation 
 
 acceptance was to be made ; in. which case it is to be governed in the like 
 particulars, by the law of England, assuming that law to differ from the 
 law of Massachusetts? The second question is, Whethet a promise 
 contained in a Letter of Credit, written 1^ persons who are to become the 
 Drawees of Bills drawn under it, promising to accept such Bills when 
 drawn, which Letter, although addressed to the persons who are to be the 
 Drawers of the Bills, is designed to be shown to any person or persons 
 whatsoever, to induce them to advance money on, and take the Bills when 
 drawn, will be an available contract in favor of the persons to whom the 
 Letter of Credit is shown, who advance money, and take the Bills on the 
 faith thereof, or is void for want of privity between them and the persons 
 writing the Letter of Credit. I cannot say that I entertain any serious 
 doubts as to either question. As to the first, the Letter of Credit was 
 executed in Boston by the agent of the defendants, with full authority for 
 the purpose ; and it is to all intents and purposes the same, in legal effect, 
 as if it had been there personally signed by the defendants themselves. 
 S. P. Bell V. Bruen, 1 How, S. Ct. 169. It then created an immediate 
 contract in Boston between the parties, and it is to he governed as to its 
 obligation, construction and character, by the l$w of Massachusetts, and 
 not by the law of England ; if, indeed, there be any distinction between 
 them on this subject, which I am very far from believing there is. The 
 contract was clearly valid and binding by the law of Massachusetts. It is 
 true, that the contract is to accept Bills drawn on the defendants in Lon- 
 don, and of course, the acceptance is there to be made. But that does 
 not make it less obligatory upon the defendants to fulfil their proniise to 
 accept, although the acceptance, in order to be valid, must be made ac- 
 cording to the requirements of the English Law. Suppose a like Letter 
 of Credit were executed in Boston, to accept Bills payable in Paris, in 
 France, where an acceptance to be binding must be in writing (although, 
 by our law, it may be verbal,) , there can be no doubt that unless there was 
 a written acceptance in Paris, no remedy could be had upon any Bill 
 drawn in pursuance of the Letter of Credit, as an accepted Bill. But 
 there is as little doubt, upon principles of international law and public 
 justice, that in such a case the contract, being made in Massachusetts, and 
 being valid by the laws thereof, would be, and ought to be, held valid in 
 all judicial tribunals throughout the world, and enforced equally in France, 
 in England, and America, as a subsisting contract, the breach of which 
 would entitle the injured party to complete redress for all the damage sus- 
 tained by him. The case of Carnegie v. Morrison (2 Meto. R. 381) is 
 directly in point upon this very question ; and I entirely concur in that de- 
 
CH. XIII. J LETTERS OF CREDIT. 611 
 
 of Letters of Credit, in the following expressive lan- 
 guage. "Letters of Credit, strictly speaking, are 
 
 cision. The second question is one upon which, until I heard the present 
 argument, I did not suppose that any real doubt could be raised, as to the 
 law, either in England or America. I cannot but persuade myself that 
 the doctrine of both countries, .as far as this question is concerned, is 
 coincident, notwithstanding the opinions of the learned counsel, which 
 have been brought to the notice of the Court upon the present occasion, 
 (and for which, certainly, I feel an unaifected respect and deference,) and 
 which assert, that the English doctrine denies all redress, under the cir- 
 cumstances, to the Holder of the Bills, and confines the whole remedial 
 redress to an action between the Drawers and Xhe Drawees of the Bills, 
 upon the ground that there is a want of privity between the Drawees and 
 the person who takes the Bills as purchaser or Holder. The case of 
 Marchington «. Vernon, cited in a note to 1 Bos. & Pull. 101, before Mr. 
 Justice BuUer, seems to me fully to support the contrary doctrine. As- 
 suming, however, that there is a total want of privity between the parties 
 in the present suit, the conclusion to which these learned jurists have 
 arrived, may be admitted fairly to follow as a result of the doctrine of the 
 Common Law, although I entertain great doubt whether, under such cir- 
 cumstances, a Court of Equity would not, and ought not, to administer 
 complete relief, as a case of constructive fraud upon third persons. But 
 my difficulty is in the assumption, that in the present case there is no 
 privity of contract between the plaintiffs and the defendants. It appears 
 to me that this is an inference not justly deducible from the facts ; and I 
 know of no authority in English jurisprudence, which countenances, far 
 less any which establishes it, under circumstances like the present. On 
 the contrary, I have understood, and always supposed, that, in the com- 
 mercial world. Letters of Credit, of this character, were treated as in the 
 nature of negotiable instruments ; and that the party giving such a letter, 
 held himself out to all persons who should advance money on Bills drawn 
 under the same, and upon the faith thereof, as contracting with them an 
 obligation to accept and pay the Bills. And I confess myself totally 
 unable to comprehend how, upon any other understanding, these instru- 
 ments could ever possess any general circulation and credit in the com- 
 mercial world. No man ever is supposed to advance money upon such a 
 Letter of Credit, upon the mere credit of the party to whom the Letter is 
 given ; and I venture to affirm that no man ever took Bills on the faith of 
 such a Letter without a distinct belief that the Drawee was bound to him 
 to accept the Bills, when drawn, without any reference to any change of 
 circumstances, which might occur in the intermediate time between the 
 giving of the Letter of Credit and the drawing of the Bills under the 
 
612 BILLS OF EXCHANGE. [CH. XIII. 
 
 mandates, giving authority to the person addressed to 
 pay money, or furnish goods, on the credit of the writer. 
 
 same, of which the Holder, advancing the money, had no notice. . Any 
 other supposition would make the Letter of Credit no security at all, 
 or, at best, a mere contingent security; and the money would, in effect, 
 be advanced mainly upon the credit of the Drawer of the Bills, which ap- 
 pears to me to be at war with the whole objects for which Letters of 
 Credit are given. Let me state one or two cases to illustrate the doc- 
 trine, which, it seems to me, is applicable to Letters of this sort. Sup- 
 pose the present Letter of Credit had contained an express clause, by 
 which the defendants should directly promise any and all persons who 
 should advance money and take Bills on the faith thereof, that they would 
 accept and pay the Bills so drawn in their favor. Can there be any 
 doubt that the promise would be available in favor of the persons making 
 such advances, and create a direct privity of contract between them and the 
 person who gave the Letter of Credit? If there would be no doubt in such a 
 case, then, it seems to me, that the circumstances of the present ca^e, and 
 indeed, of all cases of Letters of Credit, of a similar character, do, natu- 
 rally and necessarily, embody an implied promise to the same extent, and, 
 therefore, ought to be governed by the same rule ; for there can, in the 
 intendment of the law, be no just distinction between cases of an express 
 promise and cases of an implied promise, applicable to transactions of this 
 sort. Again ; suppose when the plaintiffs were about to advance their 
 money on their Bills, with the Letter of Credit before them, a partner or 
 authorized agent of the firm of Wiggin & Co., had stood by, and said. 
 Take these Bills on the faith of this Letter of Credit, and our house will 
 duly accept and pay them, and, upon the faith of that statement, the 
 money was advanced and the Bill was taken ; could there be a doubt, that 
 there would be a privity of contract directly created between the plaintiffs 
 and the defendants, and that they might, by law, compel them to accept 
 and pay the Bills, or indemnify them for the breach thereof? And yet, 
 stripped of its mere external form, that is the very case before the Court. 
 The Letter of Credit was drawn to be carried abroad, and to be shown to 
 any person or persons who would advance funds thereon to the Drawers ; 
 and it imported, that if any persons to whom it was shown, should advance 
 the money, and take the Bills on the faith thereof, the defendants would 
 accept and pay the Bills. Their Letter of Credit spoke this language to 
 all the world, as expressively as if they had stood by, and repeated it by 
 their agent. Take the case of the common Letter of Guaranty, where 
 the Guarantor says, in general terms, in a paper addressed to A. B., the 
 party for whose benefit it is given, ' I hereby guaranty to any person ad- 
 vancing money, or selling goods, to A. B., not exceeding £100, the pay- 
 
CH. xm.] LETTERS OF CREDIT. 613 
 
 They are generally made use of for facilitating the 
 supply of money, or goods, required by one going 
 
 ment thereof, at the expiration of the credit, which shall be given therefor.' 
 Can there be a doubt that any person making tlie advances, or selling the 
 goods upon the faith of the Letter, is en.titled to treat the paper as con- 
 taining a direct and immediate promise to himself, to guarantee the pay- 
 ment, nolwilhstanding it is addressed to A. B. ? In the commercial world, 
 as far as I know, no doubt has as yet ever been entertained on this sub- 
 ject ; and yet, transactions of this sort are of every day's occurrence, 
 especially where the person by whom the advance is to be made is un- 
 certain or unknown. The case of Adams v. Jones (12 Peters, R. 207, 
 213) is in point to show, that such a guaranty, in such general terms, wi^l 
 bind the Guarantor in favor of any person who shall trust the party upon 
 the faith and credit of the guaranty. There is no pretence in such a case, 
 to say that there is. not a sufficient consideration for the promise or obliga- 
 tion ; for the consideration need not be immediately for the benefit of the 
 Guarantor ; but it will be sufficient if there be a valuable consideration 
 moving from the Guarantee, at the request of the Guarantor, in favor of a 
 third person, for whom the benefit is designed. It is like the common 
 case where one man, for a valuable consideration of forbearance, or other- 
 wise, undertakes to pay the debt of another. The question is not of gain 
 to the promissor, but of loss, or detriment, or delay, on the part of the 
 promissee. Lord Mansfield's whole reasoning in the case of PiUans v. 
 Van Mierop (3 Burr. R. 1663) treats it as a clear case of a sufficient con- 
 sideration ; that it is a mercantile transaction ; and that the very nature of 
 it imports an undertaking to the persons taking the Bills, to honor them. 
 Lord Mansfield went further in that case, and. held that the agreement to 
 accept amounted to an actual acceptance in favor of the party, upon the 
 ground that he advanced the money and drew the Bill, upon the faith of 
 the prior negotiations and promise. Mr. Justice Yates, in the same x;ase, 
 said that, ' Any damage to another, or suspension, or forbearance of a 
 right, is a. foundation for an undertaking, and will make it binding, 
 although no actual benefit accrues to the party undertaking.' He added : 
 ' Now, here, the promise and undertaking of the defendants did occasion 
 a possibility of loss to the plaintiffs.' In the case at bar, a benefit did in 
 fact, accrue to Wiggin & Co. ; for, in no other way could they have re- 
 ceived the interest and advances intended to be obtained by their grant 
 of the Letter of Credit. In Piersou v. Dunlop (Cowper, R. 571, 573) 
 and in Mason v. Hunt (1 Doug. R. 297) Lord Mansfield took notice of the 
 true distinction between cases where a promise enures solely between the 
 parties, and where it enures in favor of a third person also. ' It has been 
 truly said, as a general rule, (was his language) that the mere answer of 
 
 B. OF EX. 53 
 
614 BILLS OF EXCHANGE. [CH. XIIL 
 
 to a distance or abroad, and avoiding the risk and 
 trouble of carrying specie, or buying Bills to a greater 
 
 a merchant to the Drawer of a Bill, saying he will duly honor it, is no ac- 
 ceptance unless accompanied with circumstances which may induce a 
 third person -to take the Bill by indorsement. But, if there are such cir- 
 cumstances, it may amount to an acceptance, although the answer be con- 
 tained in a letter to the Drawer.' The cases of Johnson v. Collings (1 
 East, R. 98,) and Clarke v. Cock (4 East, R. 56) do not, in any manner, 
 shake the propriety of this doctrine, as to its creating a privity of contract 
 between the parties, whether it amounts to an acceptance or not ; and Mr. 
 Justice Le Blanc, in both cases, expressly recognized Lord Mansfield's 
 doctrine, as containing the true limitations and distinctions, which ought 
 to govern in all cases of this sort. In the case of Johnson v. Collings, as 
 well aS in the case of Miln v. Prest (4 Camp. R. 393) the promise to ac- 
 cept had not been shown to the party taking the Bill, and, therefore, the 
 Bill was not taken on the faith thereof. Nor, indeed, had it been even 
 authorized to be shown to the party, which constitutes the striking dif- 
 ference between such a promise and a Letter of Credit ; the Letter being 
 ex vijermini, designed to be shown if necessary, to obtain the very credit 
 or advances from a third person. Lord Mansfield, indeed, guarded himself 
 on this very point, and said, not, that it always does create an acceptance, 
 but that it may do so. Now, if it would, in any case, create an accept- 
 ance, a fortiori, it would create a privity of contract founded upon the 
 promise to accept; for the latter must, in all cases, constitute the founda- 
 tion of the former. In none of these cases was the point presented exactly 
 under the view in which it now comes before this Court. In neither of them 
 was there a Letter of Credit designed to circulate, and thus to preserve 
 credit to the Bills, which should be drawn. And not one word, in the 
 reasoning of any of these cases, hints at any suggestion that a Letter of 
 Credit in its commercial sense would not create such a privity, if it was 
 intended to be shown and used to induce any third person to advance money 
 on the Bills. If the question were entirely new I confess that I should 
 not entertain the least doubt that, according to the known course of mer- ■ 
 cantile tiansactions upon Letters of Credit of this sort, the giver and the 
 receiver intended them to be a circulating medium of credit for the re- 
 ceiver ; and that the promise to accept should be an obligatory contract 
 with any and every person who should advance money on the Bills on the 
 faith thereof. The language of Lord Mansfield in Mason u. Hunt (1 
 Doug. R. 297, 299,) is exceedingly strong for this purpose : ' There is no 
 doubt (said he) that an agreement to accept may amount to an acceptance; 
 and it may be couched in such words as to put a third person in a better 
 condition than the Drawer. If one man, to give credit to another, makes 
 an absolute promise to accept his Bill, the Drawer or any other person 
 
CH. xni.] LETTEES OF CREDIT. 615 
 
 amount than may be required. The debt, which arises 
 on such a Letter, in its simplest form, when complied 
 
 may show such promise upon the exchange, to get credit; and a third 
 person who should advance his money upon it, would have nothing to 
 do with the equitable circumstances which might subsist between the 
 Drawer and the Acceptor. But an agreement to accept is siill but an 
 agreement; and, if it is conditional, and a third person takes the Bill, 
 knowing of the conditions annexed to the agreem.eiit, he takes it subject to 
 such conditions.' Now, it is impossible to read this language, and not to 
 feel, that if the case were one of a Letter of Credit, designed by the par- 
 ties to be used upon the exchange, it would necessarily create a privity of 
 contract between the party advancing his money, and the Drawee, binding 
 upon the latter. In short, the contract would be a contract, not with the 
 Drawer alone, but wilh any party who should advance the money on the 
 faith of the Letter. See S. P. Com. Dig. Merchant, F. 3, which cites 
 Mar. 36, Ma. 71, 76. I have seen no case in England which shakes, much 
 less which overturns, this doctrine. And, if there were, I should pause a 
 great while before I could bring my mind to desert the clear judgment of 
 that great judge. Lord Mansfield, never excelled as a judge in the admini- 
 stration of commercial jurisprudence, upon a question of such plain equity 
 and justice, in favor of any other and subsequent adjudication by other 
 minds. I consider a Letter of Credit, drawn like the present, for purposes 
 of a general nature, to be equivalent in import and intention, to the fol- 
 lowing language : ' Take this Letter of Credit, show it to any person 
 whatsoever, and I promise any person who shall, on the faith thereof, ad- 
 vance you money on Bills drawn within the scope thereof, that I will 
 accept and pay those Bills.' . I confess myself unable to perceive, upon 
 any grounds of the Common Law, or of common sense and justice, why 
 such a circulating promise should not be obligatory. But, be the English 
 doctrine as it may be, the present case must be governed, not by that law, 
 but by the Commercial Law of America, where the contract was entered 
 into. And it is perfectly clear, at least in the jurisprudence, which is en- 
 forced in the Supreme Court of the United States, that a Letter, written 
 within a reasonable time, either before or after the date of the Bill of Ex- 
 change, describing it in terms not to be mistaken, and promising to accept 
 it, is, if shown to the person who afterwards takes the Bill oji the credit 
 of the Letter, a virtual acceptance, binding upon the person who makes 
 the promise. This was expressly so held by the Supreme Court, in 
 Coolidge V. Payson (2 Wheat. R. 66, 75,) and has been fully recognized 
 and established by that Court in every subsequent case which has arisen 
 on the subject, and especially in Schimmelpennick v. Bayard (1 Peters, 
 R. 284,) and Boyce v. Edwards, (4 Peters, R. 111.) Now, it is plain, 
 
616 BILLS OP EXCHANGE. [CH. XIII. 
 
 with, is between the mandatory and mandant ; though it 
 may be so conceived as to raise a debt also against the 
 
 .that if such a promise becomes, as it were, a circulating promise to accept 
 the Bill, when drawn in favor of, and to any party, who shall take the 
 Bill upon the faith of such promise, and operates as an acceptance of the 
 Bill, it must be because the promise to accept, in such a case, is a promise 
 by intendment made to the party who takes the Bill ; and then at his election 
 it may be treated as an acceptance, or as a promise to accept. This, there- 
 fore, alone, would establish the point of a privity of contract between the 
 party giving the Letter of Credit and the party advancing the money, and 
 taking the Bill on the credit thereof; and it is manifestly fobnded on a suf- 
 ficient consideration. Now, I know of no just or reasonable ground upon 
 which a distinction can be maintained between an implied acceptance in 
 favor of the person who makes advances, and takes the Bill under such 
 circumstances, and a promise to accept the Bill. In each case it enures as 
 a direct contract with the party, founded upon the intent and the object of 
 the Letter of Credit or the written promise ; and he has, and ought to 
 have his election, either to treat it as a positive acceptance or as a promise 
 to accept made directly to him through the open Letter of Credit ad- 
 dressed to him, either specially, or generally, for that purpose. Such is 
 the doctrine which, for many years, I have constantly supposed to be well 
 established in the practice of the commercial world, and, therefore, never 
 questioned in courts of justice ; and, upon this very doctrine, my judg- 
 ment proceeded in the recent case of Bating v. Lyman (1 Story, R. 397, 
 414, 415.) It does not, however, rest upon my single- opinion ; but it has 
 been fully recognized by the Supreme Court of the United States. In 
 Townsley v. Sumrall (3 Peters, R. 170, 181,) the Court said : ' If a per- 
 son undertake, in consideration that another will purchase a Bill already 
 drawn, or to be thereafter drawn, and as an inducement to the purchaser 
 to accept it, and the Bill is drawn and purchased upon the credit of such 
 promise, for a sufficient consideration ; such promise to accept is binding 
 upon the party. It is an original promise to the purchaser, not merely a 
 promise for the debt of another; and, having a sufficient consideration to 
 support it, in reason and justice as well as in law, it ought to bind him. 
 It is of no consequence, that the direct consideration moves to a third per- 
 son, as, in this case, to the Drawer of the Bill ; for it moves from the pur- 
 chaser, and is his inducement for taking the Bill. He pays his money 
 upon the faith of it, and is entitled to claim a fulfilment of it. It is not a 
 case falling within the objects or the mischiefs of the Statute of Frauds. 
 If A. says to B., ' Pay so much money to C, and I will repay it to you,' 
 it is an original, independent promise ; and, if the money is paid upon the 
 faith of it, it has been always deemed an obligatory contract, even though 
 it be by parol ; because there is an original consideration moving between 
 
CH. XIII.] LETTERS OF CREDIT. 617 
 
 person, who is supplied by the mandatory. 1. Where 
 the letter is purchased with money by the person 
 
 the immediate parties to the contract. Damage to the Promissee con- 
 stitulesfas good a consideration as benefit to the Promissor. In cases not 
 absolutely closed by authority, this Court has already expressed a strong 
 inclination not to extend the operation of the Statute of Frauds, so as to 
 embrace original and distinct promises made by different persons at the 
 same time, upon the same general consideration. Then, again, as to the 
 consideration, it can make no diiTerence in law, whether the debt, for 
 which the Bill is taken, is a preexisting debt, or money then paid for the 
 Bill. In each case there is a substantial credit given by the party to the 
 Drawer, upon the Bill, and the party parts with his present rights at the 
 instance of the Promissee, whose promise is substantially a new and in- 
 dependent one, and not a mere guaranty of the existing promise of the 
 Drawer. Under such circumstances, there is no substantial distinction, 
 whether the Bill be then in existence or be drawn afterwards. In each- 
 case the object of the promise is to induce the party to take the Bill upon 
 the credit of the promise ; and if he does so take it, it binds the Promis- 
 sor. The question. Whether a parol promise to accept a non-existing 
 Bill amounts to an acceptance of the Bill when drawn, is quite a different 
 question, and does not arise in this case. If the promise to accept were 
 binding, the plaintiff would be entitled to recover, although it should not 
 be deemed a virtual acceptance.' In Boyce v. Edwards (4 Peters, R. Ill, 
 121 to 123,) the Court held that, if in the particular case, by reason of 
 the Bill to be drawn not being definitely described in the manner limited 
 by the case of Coolidge v. Payson (2 Wheat. R. 75,) the promise to accept 
 would not operate as an acceptance of the Bill in favor of the party re- 
 ceiving it, still it would operate as a promise to him to accept the Bill 
 when drawn, and thus be equally available for him. The language of the 
 Court upon that occasion was : ' The rule laid down in Coolidge J). Payson 
 requires the authority to be pointed to the specific Bill or Bills to which 
 it is intended to be applied, in order that the party who takes the Bill upon 
 the credit of such authority may not be mistaken in its application.' And 
 again : ' The distinction between an action on a Bill, as an accepted Bill, 
 and one founded on a breach of promise to accept, seems not to have been 
 adverted to. But the evidence necessary to support the one or the other is 
 materially different. To maintain the former, as has been already shown, the 
 promise must be applied to the particular Bill alleged in the declaration to 
 have been accepted. In the latter, the evidence may be of a more general 
 character, and the authority to draw may be collected from circumstances, 
 and extended to all Bills coming fairly within the scope of the promise. 
 Courts have latterly leaned very much against extending the doctrine of 
 implied acceptances, so as to sustain an action upon the Bill. For all 
 52* 
 
618 BILLS OF EXCHANGE. ' ^ [CH. XIII. 
 
 wishing for the foreign credit ; or, is granted in conse- 
 quence of a check on his cash account ; or, procured on 
 
 practical purposes, in commercial transactions in Bills of Exchange, such 
 collateral acceptances are extremely inconvenient, and injurious to the 
 credit of the Bills ; and this has led judges frequently to express their 
 dissatisfaction that the rule had been carried as far as it has; and their 
 regret, that any other act, than a written acceptance on the Bill, had ever 
 been deemed an acceptance. As it respects the rights and the remedy of 
 the immediate parties to the promise to accept, and all others who may 
 take Bills upon the credit of such promise, they are equally secure and 
 equally attainable by an action for the breach of the promise to accept, as 
 they could be by an action on the Bill itself.' The case of Adams v. 
 Jones (12 Peters, R. 207, 213) is equally explicit to show that a written 
 promise made to one person, may enure as a promise in favor of another 
 person, who gives credit on the footing of that promise, where the terms 
 of the Letter are such as prove that it was intended to be shown, and to 
 produce that very credit. The case of Carnegie v. Morrison (2 Mete. R. 
 381, 395, 396) is also an authority to the same purpose ; and, indeed, it 
 runs on all fours with the present case. It is unnecessary for me to add, 
 that my own judgment is persuasively governed by these decisions, not 
 merely as authorities (although that would be a decisive ground,) but 
 upon principle, as tending to further and establish commercial confidence, 
 and to give that sanctity, circulation, and faith to Letters of Credit which 
 constitute the very foundations upon which they were first built, and by 
 which alone they can be sustained in the business of modern commerce. 
 My judgment, therefore, is, that the plaintiff is entitled to recover the 
 amount of the damages sustained by the refusal of the defendants to ac- 
 cept the Bill in controversy. What should those damages be ? Should 
 they cover all the money actually paid upon tl^e protested Bills by the 
 plaintiffs ; including reexchange, together with interest, or should the 
 reexchange be excluded ? It is clear, that the Acceptor is not, ordinarily, 
 bound to any Holder to pay reexchange upon his refusal to pay the Bill ; 
 but only to pay the principal and interest. But, here, the Drawees (the 
 defendants) have promised to accept and pay the Bill upon a sufficient 
 consideration ; and I do not perceive any ground why the defendants 
 should not be bound to indemnify the plaintiffs against all losses, including 
 reexchange, which have been the natural and necessary consequence of 
 their refusal to perform their contract made with the plaintiffs. The de- 
 fendants are not sued as Acceptors, but as special contractors, who have 
 broken their contract ; by which breach the plaintiffs have been compelled 
 to pay the very moneys including reexchange, which they now seek to 
 recover back. It seems to me that they are entitled to the full amount 
 
CH. XIII.] LETTERS OF CEEDIT. 619 
 
 the credit of securities lodged with the person, who 
 grants it; or, in payment of money due by him to the 
 Payee ; the Letter is, in its effects, similar to a Bill of 
 Exchange drawn on the foreign merchant. The pay- 
 ment of the money by the person on whom the letter 
 is granted, raises a debt, or goes into account between 
 him and the writer of the Letter; but raises no debt to 
 the person who pays on the Letter, against him to 
 whom the money is paid. 2. Where not so purchased, 
 but truly an accommodation, and meant to raise a debt 
 against the person accommodated, the engagement 
 generally is, to see paid any advances made to him, or 
 to guarantee any draft accepted, or Bill discounted; 
 and the compliance with the mandate, in such case, raises 
 a debt both against the writer of the Letter and against 
 the person accredited." ' 
 
 paid by them, and interest upon the same from the time when it was paid. 
 The interest should be the interest of the place where the money was 
 payable by the plaintiffs, and of course, where they were to be reimbursed. 
 The case of Riggs v. Lindsay (7 Cranch, R. 500) seems to me a clear and 
 satisfactory authority, that the plaintiffs are entitled to a full reimburse- 
 ment of all the sums paid by them, including reexchange. This also ap- 
 pears to have been the opinion of Mr. Justice Bayley, in his work on 
 Bills of Exchange. (Bayley on Bills, ch. 9, p. 353, 5th London edit. 
 1830; Id. Amer. edit. p. 380.) It was also directly affirmed by Lord 
 Camden, in Francis v. Rucker (Ambler, R. 272.) Pothier holds that the 
 Acceptor is, in all cases, bound to pay the reexchange to the Holder, in 
 the same manner as the Drawer would be (Pothier de Change, n. 117,) 
 which is carrying the rule beyond what our law seems to justify. (Na- 
 pier V. Schneider, 12 East, R. 420; Woolsey v. De Crawford, 2 Camp. 
 R. 445.) For these reasons, I am of opinion, that the whole damages, 
 and costs, and expenses paid by the plaintiffs, including reexchange, with 
 interest, are to be included in the judgment for the plaintiffs." See also 
 Cassel V. Dows, Blatchford R. 335. 
 1 Bell, Comm. B. 3,ch. 2, ^ 4, p. 371 (5th edit.) 
 
620 BILLS OF EXCHANGE. [OH. XIV. 
 
 CHAPTER XIV. 
 
 INLAND BILLS. 
 
 § 464. Hitherto our attention has been principally 
 addressed to cases of Foreign Bills of Exchange ; and 
 the rules and doctrines applicable to them, are, gene- 
 rally, applicable, to the same extent, and in the same 
 manner, to Inland Bills of Exchange. There are some 
 differences, which it is essential to bring to the notice 
 of the reader ; and there are some doctrines, which are 
 more familiarly known, and more frequently applied to 
 cases of Inland Bills, than to cases of Foreign Bills, 
 and are, therefore, peculiarly illustrative of the general 
 subject. We shall, therefore, here, bring under review 
 some of these differences and these doctrines, in a brief 
 and summary manner. 
 
 § 465. Inland Bills, as has been already suggested, 
 are those, which are drawn at one place, and payable 
 at another place, in one and the same country, the 
 Drawer and Drawee being both resident therein,-' It 
 is not sufficient, that the two places be under the same 
 general sovereignty ; but they must be also within the 
 same territorial jurisdiction, and governed by the same 
 identical jurisprudence and laws. Thus, England, and 
 Ireland, and Scotland, are all under the same general 
 sovereignty ; and yet, a Bill, drawn by the Drawer, 
 resident in one of these countries, upon the Drawee, 
 
 1 Ante, ^ 22 ; Bayley on Bills, ch. 1, § 8, p. 26 (5th edit. 1830). 
 
CH. XIV.] X INLAND BILLS. 621 
 
 resident ia another of these countries, is a Foreign Bill, 
 and not an Inland Bill.' So a Bill, drawn by a Drawer, 
 resident in one of the States, composing the United 
 States, upon the Drawee, resident in another of the 
 United States, is a Foreign Bill and not an Inland 
 Bill.'' 
 
 § 466. Inland Bills were, probably, well known and 
 in use in the countries of Continental Europe, at a 
 period nearly as early as the introduction of Foreign 
 Bills ; as the convenience, if not the necessities, of 
 commerce between different but distant parts of the 
 same country, would often require such a facility. 
 Certain it is, that they were in use upon the Conti- 
 nent of Europe, much earlier than in England ; and 
 the old writers upon the subject speak of Bills of Ex- 
 change in terms equally applicable to Inland and Fo- 
 reign Bills.^ 
 
 § 467. In England, Inland Bills of Exchange appear 
 to have been of a comparatively modern origin, and 
 probably were not in general existence or use until the 
 reign of Charles the Second.* Lord Holt, in a case in 
 the reign of Queen Anne, said, that he remembered 
 when actions upon Inland Bills did first begin.^ Upon 
 their first introduction, their validity and operation 
 were very much restricted ; and the very custom between 
 two or more places, where they were used, was essen- 
 tial to be stated in the declaration of every action 
 brought thereon ; and they were limited to cases where 
 
 ' Ante, § 22 ; Mahoney v. Ashlin, 2 Barn, and Adolph. 478. 
 
 2 Ante, ^ 23 ;' Buckner v. Finley, 2 Peters, R. 586. 
 
 3 Jousse, Comm. sur I'Ord. 1673, tit. 5, Introd. p. 58 to 67; Id. tit. 5, 
 art. 5, p. 89 ; Pothier de Change, u. 6, 7, 10, 15, 16 ; Id. n. 30. 
 
 4 Chilly on Bills, ch. 1, p. 13, 14 (8th edit. 1833). 
 
 5 BuUer v. Creps, 6 Mod. R. 29. 
 
622 BILLS OP EXCHANGE. [CH. XIV. 
 
 both parties were merchants.' This very fact suffici- 
 ently shows how slow was their adoption and progress, 
 and how reluctant the Common Law was, in supportng 
 or encouraging them.^ Even when their validity and 
 operation, if made payable to a party or order, was 
 established, it was thought, that, if made payable to 
 the bearer, they were not negotiable.'' These niceties 
 have, however, for a great length of time, been done 
 away, and Inland Bills now generally stand, in Eng- 
 land and America, upon the same grounds as Foreign 
 Bills, as to their negotiability and operation, and re- 
 sponsibility, and the rights and duties of the parties 
 thereto, subject to an exception, which will be immedi- 
 ately stated. In England, they have been put upon 
 the firm footing of Foreign Bills of Exchange, by the 
 Statutes of 9 and 10 Will. III. ch. 17, and 3 and 4 Ann. 
 ch. 9,* the principal provisions of which have been prac- 
 tically adopted in America. 
 
 § 468. The principal exception, to which allusion has 
 bfeen already made, is, that Inland Bills need not, upon" 
 being dishonored for non-acceptance, or non-payment, 
 be protested by the Holder ; whereas, in cases of Fo- 
 reign Bills, a protest is (as we have seen) ordinarily 
 indispensable.^ Notice of the dishonor of Inland Bills 
 
 ' Ant^, 71 ; Chitty on Bills, ch. 1, p. 14 (8th edit. 1833). 
 
 2 Chitty on Bills, ch. 1, p. 14 (8th edit. 1833). 
 
 3 Ibid. 
 
 4 2 Black. Comm. p. 467. 
 
 5 Ante, ^ 273, 277, 281 ; Chitty on Bills, ch. 1, p. 14 ; Id. eh. 8, 
 p. 364, 365 ; Id. ch. 10, p. 499 to 501 ; Id. Ft. 2, ch. 2, p. 592 (8th edit. 
 1833) ; Kyd on Bills, ch. 7, p. 142, 143 (3d edit.) ; Brough v. Parkings, 
 2 Ld. Raym. 992 ; S. C. 6 Mod. 80 ; 1 Salk. 131 ; Young v. Bryan, 
 6 Wheat. R. 146 ; Union Bank v. Hyde, 6 Wheat. R. 572 ; Sirawbridge 
 V. Robinson, 5 Gilman, Illinois R. 470. Mr. Kyd, on this subject, says : 
 "The principal difference between Foreign and Inland Bills of Exchange, 
 
CH. XIV.] INLAND BILLS. 623 
 
 is, however, equally required to be given by the Holder 
 in the same manner, and with the like promptitude, as 
 in cases of the dishonor of Foreign Bills, in order to 
 charge the antecedent parties.' But, although no pro- 
 test is required to preserve and protect the rights of 
 the Holder on an Inland Bill ; yet the Statutes of 
 9 and 10 Will. III. eh. 17, and of 3 and 4 Ann. ch. 9, 
 authorize the Holder of an Inland Bill of Exchange, 
 expressed to be for value received, and payable at a 
 certain number of days, or weeks, or months, after the 
 date thereof, if dishonored by non-acceptance, or ac- 
 cepted in VFriting, and dishonored by non-payment at 
 maturity, to be protested therefor ; and, in default of 
 such protest, the Holder is not entitled to recover the 
 costs, damages, and interest which shall accrue thereby.^ 
 
 at Common Law, seems to have been this. A protest for non-acceptance 
 or non-payment of a Foreign Bill was, as it still is, essentially necessary, 
 to charge the Drawer on the default of the Drawee ; nothing, not even 
 the principal sum, could, or can at this time, be recovered against him 
 without a protest ; no other form of notice having been admitted by the 
 custom of merchants as sufficient. But inland Bills having been introduced 
 at a late period, in imitation of Foreign ones, did not immediately adopt 
 all their incidents ; simple notice, within a reasonable time, of the default 
 of the Drawee, was held sufficient to charge the Drawer; but it does not 
 appear that in any instance they were favored with the solemnity of a pro- 
 test ; the disadvantage arising from thence was this, that notice entitled 
 the Holder to recover only the sum in the original Bill." Kyd on Bills, 
 p. 142. 
 
 1 Chitty on Bills, ch. 1, p. 14 (8ih edit. 1833) ; Id. ch. 8, p. 364, 365 ; 
 Id. ch. 10, p. 499, 500 ; Id. Ft. 2, ch. 2, p. 592 ; Kyd on Bills, ch. 7, 
 p. 142 (3d edit.) ; Leftley v. Mills, 4 Term Rep. 176 ; Brough v. Park- 
 ings,- 2 Ld. Raym. 992 ; S. C. 6 Mod. 80; 1 Salk. 181. 
 
 2 Kyd on Bills, ch. 7, p. 142 to 145 (3d edit.) ; Windle v. Andrews, 
 2 Barn. & Aid. 696, 700, 701 ; Chitty on Bills, ch. 8, p. 364, 365 (8th 
 edit. 1833). Mr. Kyd '(on Bills of Exchange, ch. 7, p. 146 to 152, 3d 
 edit.) has given at large the constructions which have been put by the 
 courts upon these obscure and ill-worded statutes, as well as the doubts 
 entertained thereon ; and, probably, protests upon these statutes are more 
 
624 BILLS OP EXCHANGE. [CH. XIV. 
 
 These statutes, however, afford only cumulative reme- 
 dies, and do not impose an absolute necessity on the 
 Holder, even in respect to the particular descriptions 
 of Bills stated therein, to protest the same upon such 
 dishonor. In case of his neglect or omission to make 
 such protest, he loses his costs and damages upon the 
 Bill ; ' but he is entitled to recover his principal, and 
 also interest, upon the Bill, without such protest.^ In 
 
 rarely resorted to than they otherwise would be on account of the par- 
 ticular limitations and restrictions of the statutes and acts required to be 
 done to entitle the Holder to recover such interests and costs. In the case 
 of Windle V. Andrews, 2 Barn. & Aid. R. 696, 700, Mr. Justice Bayley 
 said : " There is no instance of a protest on an Inland Bill of Exchange 
 being given in evidence ; and yet it is every day's practice to allow inte- 
 rest."— See Chitty on Bills, ch. 8, p. 364, 365 (8th edit. 1833); Id. ch. 
 10, p. 500, 501, where Mr. Chitty says, that a protest on an Inland Bill 
 is in practice seldom made. 
 
 1 Brough V. Parkings, 2 Ld. Raym. 992 ; S. C. 6 Mod. R. 80 ; 1 Salk. 
 R. 131. 
 
 2 Windle v. Andrews, 2 Barn. & Aid. 696; Lumley v. Palmer, 2 
 Strange, R. 1000 ; Chitty on Bills, ch. 8, p. 364, 305 (8th edit. 1833) ; 
 Id. ch. 10, p. 499 to 501. In the Report of Brough v. Parkings, in 6 Mod. 
 80, Lord Holt is made to say : " The statute never meant to destroy the 
 action foi- want of a protest, but only to deprive the party from recovering 
 interest and costs upon an Inland Bill against the Drawer without notice 
 of non-payment by protest ; for, before the statute there was this difference 
 between Foreign Bills and Inland Bills of Exchange : if a Bill were 
 foreign, one could not resort to the Drawer for non-acceptance or non- 
 payment without a protest and reasonable notice thereof; but in case of 
 Inland Bills there was no occasion for a protest; but, if any prejudice 
 happened to the Drawer by the non-payment of the Drawee, and that for 
 want of notice of non-payment, which he to whom the Bill was made 
 ought to give, the Drawer was not liable ; and the word ' damages,' in 
 the statute, was meant only of the damages that the party is at in being 
 longer out of his money by the non-payment of the Drawee than the tenor 
 of the Bill purported, and not of damages for the original debt; and the 
 protest was ordered for the benefit of the Drawer ; for, if any damages 
 accrue to the Drawer for want of a protest, that shall be borne by him to 
 whom the Bill is made ; and, if no damages accrue to him, then there is 
 no harm done to him. A protest is only to give formal notice that the 
 
CH. XIV.] INLAND BILLS. 625 
 
 Holland, ia France, and, as it seems, generally on the 
 Continent of Europe, protests are made, and are re- 
 quired to be made, upon Inland Bills as well as upon 
 Foreign Bills of Exchange.^ 
 
 § 469. Another difference was, at one time, strongly- 
 insisted upon between Foreign and Inland Bills of Ex- 
 change. It was, that, although upon Foreign Bills the 
 Holder had a right to demand payment at any reason- 
 able hour of the day, and protest the Bill, if not paid 
 when payment was so demanded ; yet, that it was 
 otherwise as to Inland Bills, for,, in respect to the lat- 
 ter, the like rule prevailed as in other contracts at the 
 Common Law, that the Acceptor, or party to pay, had 
 the whole day for the payment and discharge thereof.^ 
 But this doctrine is now abandoned, and the reasonable 
 doctrine established, that a demand of payment may be 
 made at any reasonable hour of the day of the maturity 
 of an Inland Bill, and that, if it be then dishonored, the 
 Holder may give notice thereof on the same day to the 
 antecedent parties, and is not bound to wait until the 
 next day.^ 
 
 § 470. Inland Bills of Exchange, when payable at a 
 certain time, at or after sight, or after date, are entitled 
 
 Bill is not accepted, or if accepted, that it is not paid ; and if in such case 
 the damage amount to the value of the Bill, there shall be no recovery, 
 but otherwise he ought not to lose his debt ; but that ought to appear 
 either in evidence upon non assumpsit, or by special pleading. The act is 
 very obscurely and doubtfully penned, and we ought not, by construction 
 upon such an act, to lake away a man's right." 
 1 1 Bell, Comm. B. 3, ch. 2, § 4, p. 413, 414 (5th edit.) 
 3 Chitty on Bills, ch. 9, p. 432 (8th edit. 1833) ; Leftley v. Mills, 
 4 Term R. 170 ; Hayns v. Birks, 8 Bos. & Pull. 602. 
 
 3 Chitty on Bills, ch. 9, p. 432 (8th edit, 1833) ; Ex parte Moline, 
 1 Eose, R. 303 ; S. C. 19 Ves. 316 ; Burbridge v. Manners, 3 Camp. R. 
 193. 
 
 B. OF EX, S3 
 
626 BILLS OF EXCHANGE. [CH. XIV. 
 
 to the ordinary days of grace.' But, when they are 
 payable on demand, as is commonly the case, no days 
 of grace are allowed ; and they are immediately pay- 
 able upon presentment.® But the question often arises, 
 at and within what time presentment should be made 
 by the Holder to the Acceptor for payment? The 
 answer is, within a reasonable time ; otherwise, the 
 Drawer and Indorsers will be exonerated from all lia- 
 bility, although the Acceptor will still remain liable.^ 
 What is a reasonable time is in some measure depend- 
 ent upon the particular circumstances of the case.'' 
 There are several classes of cases, with reference to 
 which the rule, as to reasonable time, may be, and 
 indeed ordinarily is, applied with very different modifi- 
 cations and qualifications. It may be useful to illus- 
 ■ trate some of them in this place. 
 
 § 471. In the first place, then, let us suppose the 
 case of an Inland Bill, drawn in a town or city, on a 
 Drawee in the same town or city, and payable to a 
 third person, or his order, on demand. At and within 
 what time should such a Bill be presented to the 
 Drawee for payment ? The established rule is, that. 
 
 1 Ante, § 342 ; Chitty on Bills, ch. 9, p. 406, 407, 409, 410 (8lh edit. 
 1833.) 
 
 2 Ante, § 342; Bay ley on Bills, ch. 7, § 1, p. 234 (5lh edit. 1830) ; 
 1 Bell, Comm. B. 3, ch. 2, p. 410 (5th edit.) — We have already seen, 
 that, by the law of France, Bills of Exchange, payable at sight, are pay- 
 able immediately on demand, without the allowance of any days of grace. 
 Ante, § 228, note, 342, note, 343 ; Pothier de Change, n. 12, 139, 172 ; 
 Pardessus, Droit Comm. Tom. 2, art. 420; Jousse, Comm. sur. I'Ordin. 
 1673, tit. 5, art. 4, p. 79 (edit. 1802.) 
 
 3 Ante, ^ 231, 324, 325 ; Chitty on Bills, ch. 9, p. 402, 403, 410, 412, 
 413 (8th edit. 1833) ; Bayley on Bills, ch. 7, § 1, p. 233 to 242 (5th edit. 
 1830.) 
 
 * As to when a Bill payable on demand, with interest, should be de- 
 manded, see Wethey v. Andrews, 3 Hill, E. 582. 
 
CH. XIV.] INLAND BILtS. 627 
 
 if it is held by the Payee, it need not be presented for 
 payment upon the same day, on which it was received ; 
 but it will be sufficient to present it on the next suc- 
 ceeding business day for payment, within the usual busi- 
 ness hours, or at any other seasonable time of the day.^ 
 
 1 Chitty on Bills, ch. 9, p. 403, 410, 412, 413, 418, 419, 421, 422 {8th 
 edit. 1833) ; Scott v. Lefford, 9 East, R. 347 ; Robson v. Bennett, 2 Taunt. 
 R. 383 ; Bayley on Bills, ch. 7, § 1, p. 236 to 244 (5th edit. 1830) ; 1 Bell, 
 Coram. B. 3, ch. 2, ^ 4, p. 410, 411 (5th edit.) ; Alexander u. Burchfield, 
 3 Scott, New R. 555. Mr. Chitty, in p. 413, above cited, says : " Upon 
 this question it has been observed, that there is no other settled general 
 rule, than that the presentment must be made within a reasonable time, 
 which must be accommodated to other business and affairs of life ; and 
 that a party is not bound in any case to present a Bill or note payable on 
 demand, on the same day it is issued or received by him ; for a man ought 
 not to be required to neglect every other business for the purpose of 
 making so prompt a presentment ; and it would be very inconvenient to 
 have an inquiry, in each particular case, whether or not the Holder could 
 conveniently have presented the instrument on the same day. And, as 
 observed by Lord Mansfield, it would be unreasonable to suppose that a 
 tradesman should be compelled to run about the town with a dozen drafts, 
 from Charing Cross to Lombard Street, on the same day ; and he directed 
 the jury to consider, that twenty-four hours were the usual time allowed 
 for the presentment for payment. The notion, however, that twenty-four 
 hours was the limit, is not the present rule ; and it suffices, in all cases, 
 for a party to present a Bill or note, payable on demand, at any time dur- 
 ing the hours of business on the day after he received it. But, although 
 this rule universally prevails between the party delivering and the party 
 receiviftg from him a Bill or note so payable, yet it must not be understood 
 that the ultimate presentment for payment cannot be delayed for any in- 
 definite time, by successive transfers between numerous parties, and by 
 each party, on the day after he has received the Bill or note, transferring 
 it to another; for, if there should, by that means, be an unreasonable num- 
 ber of days occupied, the party or parties first transferring the instrument, 
 and other of the earlier parties would probably be considered discharged 
 from liability, in case the bankers or person who issued the, note so pay- 
 able, should in the mean time fail ; and no prudent party should permit 
 any delay in presentment, especially' if there be the least reason to doubt 
 the solvency of the party to pay. It is perfectly clear, that if a party, 
 who has received such a Bill or note, does not on the next day present it, or 
 forward it for presentment in due time on 'the next day, nor transfer it, 
 but locks it up, or keeps it, he thereby forfeits all claim upon the person 
 
628 ' BILLS OF EXCHANGE. [CH. XIV. 
 
 Here we perceive, that the analogy is closely followed, 
 which is applicable to other Bills and other cases ; it 
 being in no case indispensable, that the Payee or other 
 Holder should lay aside all other business, to make a 
 demand of payment on the day ^n which he receives 
 such a Bill, any more than it is for the Holder to give 
 notice of the dishonor of a Bill, on the day of its dis- 
 
 from whom he received it." See also Kyd on Bills, ch. 4, p. 47 (3d edit. 
 1795.) Mr. Bayley has collected and stated the various cases in a sum- 
 mary maimer in p. 236 to 243. His summary is : " Upon a Bill or note of 
 this kind, given by way of payment, the course of business seemed for- 
 merly to allow the party to keep it, if payable in the place where it was 
 given, until the morning of the next day of business after its receipt ; and 
 till the next post, if payable elsewhere ; but no longer. Thus, where a 
 note of this kind, payable in London, was given there in the morning, a 
 presentment the next morning was held sufficiently early ; a presentment 
 at two the next afternoon too late. In a later modern case, where a simi- 
 lar note was given in London at one, and not presented till the next 
 morning, three juries held the delay unreasonable, but it was against the 
 opinion of the Court. But, in a more recent case, where such a note, 
 payable in London, was given in the country, it was held that the person 
 receiving it was not bound to send it to London till the following day, and 
 that the person receiving it in London was not bound to present it till the 
 next day. A Bill or note of this kind, given by way of payment to a 
 banker, must be presented by him as soon as if it had been paid into his 
 hands by a customer. And it has been held, that a Bill or note of this 
 kind, if payable at the place where the banker lives, must be presented the 
 next time the banker's clerk goes his rounds. But, if a London banker 
 receive a check by the general post, he is not bound to present it for 
 payment until the following day. And, where a person in London re- 
 ceived a check upon a London banker between one and two o'clock, and 
 lodged it soon after four with his banker, and the latter presented it be- 
 tween five and six, and got it marked as a good check, and the next day 
 at noon presented it for payment at the clearing-house; the Court held, 
 that there had been no unreasonable delay, either by the Holder, in not 
 presenting it for payment on the first day, which he might have done, or 
 by his banker, in presenting it at the clearing-house only, on the. following 
 day at noon ; it being proved to be the usage among such bankers, not to 
 pay checks presented by one banker to another after four o'clock, but only 
 to mark them, if good, and to pay them the next day at the clearing- 
 house." 
 
OH. XIV. J INLAND BILLS. 629 
 
 honor, to the other parties liable on the Bill.^ If it be 
 not so presented, then the Payee makes it his own by 
 his delay, and thus giving undue credit to the Drawee ; 
 and, if the latter has, in the mean time failed, it is his 
 own loss, and he can have no recourse over against 
 the Drawer.^ In respect to the time of the demand in 
 all these cases, there is no difference whether the pay- 
 ment be demanded by the party himself, or by his 
 agent or banker ; for the agent or banker has no right 
 to an^ extension of the time, beyond that which his 
 principal had.' 
 
 § 472. The more difficult and embarrassing question 
 is, to say, Within what time presentment should be 
 made, where the Bill is indorsed, and put in circulation 
 by the Payee. If he keeps it in his own hands several 
 days before he puts it in circulation, the Drawer will 
 be thereby discharged from all liability, if the Drawee 
 in the mean time fails.* But, suppose, that the Payee 
 indorses the Bill in blank, and puts it in circulation on 
 the same day on which he receives it, or on the next 
 day, and the Indorsee, and other subsequent Holders, 
 each hold it but for a day, and circulate it from hand 
 to hand to other Holders, without any one retaining it 
 exceeding one day; the question may then arise. 
 Whether the Drawer would be held liable upon the 
 
 1 Ibid. ; Ante, ^ 231 to 233 ; Kyd on Bills, ch. 7, p. 127 to 129 (3d 
 edit.) ; Metcalf j;. Hall, 3 Doug. R. 113 ; Appletonu. Sweetapple, 3 Doug. 
 R. 137, and Roscoe's note, Id. p. 141. 
 
 2 Chitty on Bills, ch. 9, p. 412, 413, 415 to 417, 419, 423 (8th edit. 
 1833) ; Alexander v. Burehfield, 3 Scott, New R. 555. 
 
 3 Alexander v. Burehfield, 3 Scott, New R. 555. , 
 
 4 Chitty on Bills, ch. 9, p. 413, 414, 421, 422 (8th edit. 1833) ; Bay- 
 ley on Bills, ch. 7, § 1, p. 232 to 234 (5th edit. 1830) ; Camidge u. 
 Allenby, 6 Barn. & Cressw. 373 ; Beeching v. Gower, 1 Holt, N. P, R. 
 313, note. 
 
 53 * 
 
630 BILLS OF EXCHANGE. [CH. XIV. 
 
 Bill SO long as it has been thus kept in free circulation? 
 Or, whether the payment must be deemed within the 
 period limited to the Payee ? It is difficult, in the 
 present state of the law, to answer this question in any 
 manner which is entirely satisfactory. A distinction 
 has been taken between cases where such Bills are 
 drawn by bankers and others, as a mode of making 
 profit and a source of livelihood, by exchanging them 
 for ready money, and cases, where such Bills are drawn 
 by private persons, having no such reference to profits 
 or means of livelihood, but merely for their own ac- 
 commodation or that of the Payee. In the former 
 case it has been said, that the banker or other person 
 is understood to sanction both the circulation and 
 non-presentment by his course of business, and by the 
 advantages of credit which he thus obtains from such 
 circulation and non-presentment of the Bill ; and, there- 
 fore, it is difficult to say, what length of time, consistent 
 with the free circulation of the Bill, would be deemed 
 unreasonable, in not presenting the Bill to the Drawee 
 for payment.' But, in the latter case, the presentment 
 
 1 Bayley on Bills, ch. 7, § 1, p. 236 (5th edit. 1830) ; Chitty on Bills, 
 ch. 9, p. 414 to 416, 421 (8th edit. 1833) ; Shute v. Robins, 1 Mood. & 
 Malic. 133. The language of Mr. Bayley is: " Upon a Bill or note pay- 
 able on demand or at sight, and given for cash by a person who makes the 
 profit by the money on such Bills or notes a source of his livelihood, it is 
 difficult to say vehat length of time such person shall be entitled to con- 
 sider unreasonable ; but, upon such Bills or notes given by way of pay- 
 ment, or paid into a banker's, any time beyond what the common course 
 of business warrants, is unreasonable." Mr. Chitty (p. 414) says: "It 
 seems, that, with respect to the length of time Bills and notes, payable on 
 demand, may be kept in circulation, a distinction may be taken between 
 the notes of a private individual and country bankers' notes, and also 
 with reference to the, persons by and between whom they have been cir- 
 culated ; and it has been considered, that upon a Bill or note payable on 
 demand, and given for cash by a person who makes the profit by the 
 
CH. XIV.] INLAND BILLS. 631 
 
 ought to be within a very short period, and perhaps 
 ought to be limited to such a period, as would be rea- 
 
 money on such Bills or notes a source of his livelihood (as is the case of 
 country bankers issuing their notes) it is difficult to say what length of 
 lime such person shall be entitled to consider unreasonable ; but that, upon 
 such Bills or notes given by way of payment, or paid into a banker's, any 
 time beyond what the common course of business warrants, is unreason- 
 able. This position is explained by a recent case, where the defendants 
 themselves, country bankers, transferred another country banker's Bill 
 some days after they had kept it, to the plaintiff's traveller, who did not 
 remit it to the correspondents for some days ; and, on its being presented, 
 it was dishonored ; and it was held that the defendants were not dis- 
 charged from liability, because, as Lord Tenterden observed, the character 
 of the Bill, and the course of dealing, must be attended to. It was a Bill 
 by a country banker upon his London banker, and it did not seem unreason- 
 able to treat such Bills as not requiring immediate presentment, but as being 
 retainable by the Holders for use within a moderate time, as part of the 
 circulating medium of the country ; and the defendants themselves, by the 
 time they kept it, showed they so considered this Bill ; but he left it to 
 the jury to say, whether they thought the delay unreasonable or not, and 
 they found for the plaintiiF." In Camidge v. Allenby (6 Barn. & Cressw. 
 373), notes of a banker, payable to Bearer, were taken in payment of 
 goods, and the banker failed ; and the question was. Who was to bear the 
 loss, the buyer or the purchaser? Mr. Justice Bayley, in delivering the 
 opinion of the Court, said : " The rule, as to all negotiable instruments is,- 
 that if they are taken in payment of a preexisting debt, they operate as a 
 discharge of that debt unless the party who holds the instrument does all 
 that the law requires to be done, in order to obtain payment of them. 
 Then the question is, What it was the duty of the plaintiff to do in order 
 to obtain payment of these notes. They were intended for circulation. 
 But I think that he was not bound immediately to circulate them, or to 
 send them into the bank for payment ; but he was bound, within a reason- 
 able time after he had received them, either to circulate them or to present 
 them for payment. Now, here it is conceded, that if there had not been 
 any insolvency of the bankers, the notes should have been circulated or 
 presented for payment on the Monday. It is clear, that the plaintiff on 
 that day might have had knowledge that the bankers had stopped pay- 
 ment; and having that knowledge, if presentment was unnecessary, he 
 had then another duty to perform. In consequence of the negotiable 
 nature of the instrument, it became his duty to give notice to the party 
 who paid him the notes, that the banliers had become insolvent, and that 
 he, the plaintiff, would resort to the defendant for payment of the notes ; 
 
632 BILLS OF EXCHANGE. [CH. XIV. 
 
 sonable, supposing the Bill had not been put into cir- 
 culation.^ 
 
 and it would then have been for the defendant to consider whether he could 
 transfer the loss to any other person ; for, unless he had been guilty of 
 negligence, he might perhaps have resorted to the person who paid him 
 the notes. That party would, however, be discharged, if he received no 
 notice of non-payment, or of the insolvency of the bankers, till a week 
 after he had paid them to the defendant. The neglect, therefore, on the 
 part of the plaintiff, to give to the defendant notice of the insolvency of 
 the bankers, may have been prejudicial to the defendant. The law je- 
 quires that the party on whom the loss is to be thrown should have notice 
 of non-payment, in order to enable him to exercise his judgment, whether 
 he will take legal measures against other parties to the Bill or note. Now 
 here, if the notes had been returned on the Tuesday to the defendant, he 
 might have taken steps against the bankers ; and he had a right to exercise 
 his judgment, whether he would do so or not, althougli they had stopped ; 
 or he might have had a remedy against the person who had paid him the 
 notes. It may be hard in some cases that the entire loss should fall upon 
 any one individual, but it is a general rule applicable to negotiable in- 
 struments, and not to be relaxed in particular instances, that the Holder 
 of such an instrument is to present promptly, or to communicate without 
 delay, notice of non-payment, or of the insolvency of the Acceptor of a 
 Bill or the Maker of a note ; for a party is not only entitled to knowledge of 
 insolvency, but to notice, that in consequence of such insolvency, he will 
 be called upon to pay the amount of the Bill or note. The case of 
 Beeching v. Gower is an answer to the whole of the argument for the 
 plaintiff, founded upon the fact that the notes were paid away after the 
 bank had stopped." 
 
 1 Chitty on Bills, ch. 9, p. 414, 421 (8th edit. 1833.) See also Bay- 
 ley on Bills, ch. 7, § 1, p. 236 to 243 (5th edit. 1830.) Mr. Chitty, in 
 page 421, above cited, speaking of checks, which seem, in many respects, 
 governed by the same rule as Bills payable on demand, says : " It will be 
 observed that this rule, allowing the party receiving a Bill, note, or check, 
 payable on demand, until the next day to present it for payment, will not 
 enable a succession of persons to keep such instrument long in circulation, 
 so as to retain the liability of all the parties, in case the same should 
 ultimately be dishonored by the Maker of the note, or Drawee of the 
 check. And, though each party may be allowed a day, as between him 
 and the party from whom he received a check, it would be otherwise as to 
 the Drawer, if the banker should, during a succession of several days, 
 fail, and would have paid if the check had been presented on the day after 
 it was drawn ; a check being an instrument not, in general, intended by the 
 Drawer to be long in circulation, and in that respect differing from acoun- 
 
CH. XIV.J INLAND BILLS. 633 
 
 § 473. The distinction here alluded to may seem 
 nice, but it turns upon the supposed intention and un- 
 derstanding of the parties, derived either from their 
 own particular acts, or from the common course of busi- 
 ness. And, certainly, upon the question, of what is 
 reasonable diligence, 6v not, in the presentment of a 
 Bill, the situation of the parties, the course of their 
 business, and the mode of negotiation, are not unfit to 
 be considered, in determining, as between themselves, 
 (whatever may be the case as to third persons,) what 
 may properly be deemed, according to their understand- 
 ing, a reasonable time for presentment ; for, if they 
 should expressly agree, that the Bill might be kept in 
 circulation for an indefinite time, there would be no 
 doubt, that the Drawer woiild be bound to pay the Bill, 
 notwithstanding there had been no presentment for pay- 
 ment thereof to the Drawee until after a considerable 
 lapse of time, and he had, in the intermediate time, failed 
 in business, and become insolvent. And, if such an ex- 
 press agreement would _be a waiver of what would 
 otherwise be deemed laches on the part of the Payee 
 or Holder, an agreement of a lil^e nature might be im- 
 plied from the surrounding circumstances, with equal 
 cogency and propriety. 
 
 § 474. But very different considerations would or 
 might take place between third persons, even in regard 
 to Bills of Exchange issued by bankers and others, as 
 
 try banker's note, which is known to all parties to have been intended to 
 be in circulation, and not so promptly presented for payment as a check." 
 See also Chitty on Bills, ch. 9, p. 410, 413, 414 (8th edit. 1833) ; Ante, 
 § 471 and § 472, and note. See also Lord Kenyon's remarks on the sup- 
 posed difference between bankers' checks, and Bills of Exchange, and 
 denying its correctness, in Boehm v. Sterling, 7 Term. R,4S3, 430. 
 
634 BILLS OF EXCHANGE. [CH. XIV. 
 
 I 
 
 a mode of liveliliood. Thus, if a banker's Bill, payable 
 to A. or the bearer, on demand, were put in circulation, 
 and passed from hand to hand to successive Holders ; 
 as between the Holder, who should pass them, and the 
 immediate Holder, under or from him, the duty of pre- 
 sentment to the Drawee on the next day, if payable in 
 the same town or city, or, if payable in another town or 
 city, the duty of transmission by the next day's mail, 
 and due presentment, might be completely obligatory, 
 and otherwise discharge the Holder who so passed the 
 Bill, if the Drawee should become bankrupt or insol- 
 vent, although the remedy of the present Holder might 
 be complete and perfect against the banker, who had 
 issued the Bill. Due and reasonable diligence in the 
 presentment of the Bill might, as to the banker, be go- 
 verned by very different considerations from those, which 
 are applicable to subsequent Holders, who should circu- 
 late the same Bill. Hence, the rule seems well esta- 
 blished, that, as between such subsequent Holders, so 
 circulating a banker's Bill, payable on demand, the 
 presentment should be made on the next succeeding day, 
 if payment is to be made in the same town or city, 
 where the Bill is received ; and if received in another 
 place, then it should be put into circulation, and sent 
 forward by the next day's mail to the place of payment, 
 or otherwise, the party paying the same will be dis- 
 charged from all liability.^ 
 
 § 475. And this leads us to remark, that, where an 
 Inland Bill, payable on demand, is received in the 
 country, or at a distance from the place of payment, as, 
 if received in Manchester, payable in London, the party, 
 
 ' Ante, ^ 472 ; Bayley on Bills, ch. 7, § 1, p. 236 to 243 (5th edit. 
 1830) ; Chitty on Bills, ch. 9, p. 416 to 421 (8th edit. 1833). 
 
CH. XIV.] INLAND BILLS. 635 
 
 who receives the same, need not forward the same to 
 London, for presentment for payment, by the mail of 
 the same day, although there is time to do so; hut he 
 may retain the Bill until the next day, and transmit it 
 by that day's mail, and it will be sufficient, and within 
 reasonable time.^ And the party receiving it in Lon- 
 don need not present it for payment until the day after 
 he receives it.^ 
 
 1 Bayley on Bills, ch. 7, ^ 1, p. 240, 241 (5th edit. 1830) ; Chitty on 
 Bills, oh. 9, p. 416, 417, 421 (8th edit. 1833) ; Williams v. Smith, 2 Barn. 
 & Aid, 496 ; Beeching v. Gower, 1 Holt, N. P. Rep. 315, 316, and note. 
 In Williams v. Smith (2 Barn. & Aid. 496,) Lord Chief Justice Ab- 
 bott, in delivering the opinion of the Court, said : " It is of the greatest 
 importance to commerce, that some plain and precise rule should be laid 
 down to guide persons in all cases as to the time within which notices of 
 the dishonor of Bills must be given. That time, I have always under- 
 stood to be, the departure of the post on the day following that in which 
 the party receives the intelligence of the dishonor. And, in that sense, 
 the passage cited from the very learned treatise on Bills of Exchange 
 must be understood, as well as the judgment of Lord Mansfield, in Tindal 
 V. Brown (1 Term R. 167.) If, instead of that rule we were to say, that 
 the party must give police by the next practicable post, we should raise, 
 in many cases, difficult questions of fact, and should, according to the 
 peculiar local situations of parties, give them more or less facility in comply- 
 ing with the rule. But no dispute can arise from adopting the rule which 
 I,have stated. In its application to the present case, the result is that the 
 plaintiff has been guilty of no laches, and that he is entitled to our judg- 
 ment. It appears that, if these notes had been transmitted direct to New- 
 bury by the post, hey would not have been paid, for they discontinued 
 payment there on Monday morning ; and, though the circumstance of one 
 set of halves being sent by the coach, caused their arrival in London two 
 hours later, still, that being a reasonable precaution, the plaintiff had a 
 right to send them by that conveyance. There is a difference between this 
 case and that of a Bill of Exchange, payable to order, for such Bill may 
 be specially indorsed, and no rist incurred by sending it then by the post. 
 But here it would not have been so safe to have transmitted notes payable 
 to the Bearer on demand by that conveyance. Then, in addition to this, 
 it appears that the defendant has not been in the least degree prejudiced by 
 this mode of conveyance having been adopted. On the whole, therefore 
 the plaintiff is entitled to our judgment." 
 
 2 Ibid. 
 
636 BILLS OF EXCHANGE. [CH. XIV. 
 
 § 476. Another question, naturally arising out of 
 Inland Bills, payable on demand, is, Whether the bank- 
 ruptcy, insolvency, or other stoppage of payment by 
 the Drawee, before or at the time, when the Bill ought 
 to be presented for payment, will constitute a just 
 excuse to the Holder, for the want of a due non-present- 
 ment thereof. And here the rule seems firmly esta- 
 blished, in analogy to the cases of Foreign Bills, that, 
 whether such a Bill be payable by a private person, or 
 by a banker, it must be presented for payment at the 
 proper time and place, exactly as if there had been no 
 such bankruptcy, or insolvency, or stoppage of payment 
 of the Drawee.^ And it will make no difference as to 
 the duty of the Holder in this respect, whether the Bill 
 has been circulated and received by the Holder after 
 such bankruptcy, insolvency, or stoppage of payment, 
 unless the party passing it knew the fact; for he is 
 entitled, notwithstanding, to have a strict compliance, 
 on the part of the Holder, with the general obligations 
 imposed upon him by law.^ However the want of a 
 
 1 Chitty on Bills, ch. 9, p. 417, 418 (8th edit. 1833.) Ante, § 326, 346, 
 347, 362, 375. 
 
 2 Ibid. ; Bowes v. Howe, 5 Taunt. R. 30 ; S. C. 16 East, R. 112 ; 
 1 Maule & Selw. 555 ; Camidge v, Allenby, 2 Barn. & Cress w. 373 ; 
 Bayley on Bills, ch. 7, § 1, p. 221, 232, 233 (5th edit. 1830.) — Mr. Chitty 
 (p. 417, 418) says : "In general, in the case of country bankers' notes, 
 payable on demand, although the bank has stopped payment and been shut 
 up, and has declared that they will not pay any notes, yet a due and regu- 
 lar presentment of such notes, with respect to time, must be formally made 
 at the banker's, or to one or more of the Makers, unless dispensed with 
 by the parlies to be resorted to by the Holder, and due and immediate 
 notice of the dishonor must be given to all the parties who are known to 
 have transferred the same, or they will be discharged from all liability as 
 well to pay the note as the debt, in respect of which it was transferred. 
 Hence, it is expedient for any Holder of a note, payable on demand, to 
 
CH. XIV.] INLAND BILLS. " 637 
 
 demand of payment, may, in such cases of bankruptcy, 
 insolvency, or stoppage of payment, be excused ; as, if 
 it takes place- before presentment can be made for pay- 
 ment, and the Holder, before the time for the present- 
 ment expires, offers to return it to the party from 
 whom he has received it, and the latter refuses to 
 take it back, saying that the banker, or other Drawee, 
 is going on in business; for such conduct will dis- 
 pense with the necessity of any such presentment, 
 
 present it for payment as soon as possible, and immediately on being ap- 
 prized of the insolvency of the banker, or other party, who ought prima- 
 rily to pay the same, formally to tender the same and-demand payment at 
 the banking-house, and also of the partners of the firm, if practicable ; and, 
 as soon as possible afterwards, to give notice of the^ non-payment to all 
 the parties on whom he can possibly have any claim. Nor is there any 
 distinction in this respect, whether the note payable on demand has been 
 circulated by a party after the Maker has stopped payment, or was insol- 
 vent, unless the former knew that fact at the time. If he did not, then he 
 may insist on a due presentment of the note, or, at least, on having due 
 notice of the dishonor within the time usually applicable to such notes. 
 Therefore, where it appeared that a note of a country bank was given in 
 payment, while the bank continued open, but, before the time allowed by 
 the Law Merchant for presentment had expired, the bank failed; yet it 
 was held, that the Holder was bound, to present the note for payment in, 
 due time, and that he, by neglecting to do so, made it his own. So, ^here, 
 on the 10th of December, at three o'clock in the afternoon, the defendant, at 
 York, forty miles from Huddersfield, delivered to the plaintiff four £5 
 notes, payable to bearer on demand, of the bank of Dobson & Co., Hud-, 
 dersfield, in payment for goods sold, and at eleven o'clock on that day 
 those bankers had stopped payment, but neither the plaintiff nor the de- 
 fendant knew of it ; and the plaintiff did not circulate or transfer the notes 
 nor present them for payment, and, on the 17th of December, required the 
 defendant to take them back, and he refusing, the plaintiff sued him for 
 the price of the goods, the Court held, that the defendant was discharged 
 from liability, and the plaintiff should either have negotiated the notes, or 
 forwarded them for payment on the day after he received them, and to 
 have given due notice of non-payment." See also Robson v. Oliver, 
 10 Adolph. & Ellis, N. S. 704. 
 B. or EX. 51 
 
638 BILLS OF EXCHANGE. [CH. XIV. 
 
 if, in fact, the Drawee never has resumed pay- 
 ment.' 
 
 § 477. We have already seen that, in Prance, Bills, 
 payable at sight, are held to be payable on demand, 
 and at the very time when they are presented.^ And 
 the question has then arisen, Within what period they 
 ought to be presented for payment? Pothier holds, 
 that no particular time is or can be assigned, and that 
 it must be left for the cou.rt to decide, whether the 
 presentment is within due season or not ; and he adds, 
 that the Holder ought not, by delaying the presentment 
 a little too long, oblige the Drawer to run the risk of 
 the insolvency of the Drawee.' ■ Savary holds, that the 
 time, within which presentment for payment of such 
 a Bill ought to be made, should be regulated by. a 
 reference to the distance of the place where the Bill is 
 drawn, from the place where it is payable ; and, that 
 fifteen days for the distance of the first fifteen leagues, 
 and one day for every league beyond them, should be 
 allowed, by analogy to the rule prescribed by the thir- 
 teenth section of the fifth article of the Ordinance of 
 1673, with regard to the delay of proceeding against 
 the Drawers, or Indorsers, in the case of other Bills.* 
 Pothier adds, that he has been informed that it is a 
 common opinion among merchants, that the present- 
 ment and the protest of such Bills will be valid and 
 sufficient if made within the period of five years, which 
 
 1 Chitty on Bills, ch..9, p. 388, 418, 419 (8th edit. 1833); Henderson 
 V. Appleton, cited Ibid., p. 388. 
 
 2 Ante, § 228, note, § 342, note, § 343. 
 
 3 Pothier de Change, n. 143. 
 
 4 Savary, Le Parfait N6gaciant, Tom. 2, Parere 17, p. 152. 
 
CH. XIV.J INLAND BILLS. 639 
 
 is the commou prescription, or statute of limitations, by 
 the law of France. 1 
 
 § 478. The want of effects of the Drawer in the 
 hands of the Drawee, as well as the other matters, 
 which will excuse a non-presentment of other Bills for 
 payment at the maturity thereof, and the want of no- 
 tice of the dishonor, apply with equal force to Inland 
 Bills payable on demand, as to other Bills payable 
 after sight, or after date,^ as to the respective parties 
 liable thereon ; and, therefore, these matters need not 
 be farther commented on in this place.'' The French 
 Law has avowed a broader principle upon this whole 
 subject than ours, and has (as we have seen) put the 
 doctrine of want of due presentment of the Bill, for 
 payment, and the want of due notice of the dishonor 
 thereof, upon the simple consideration, whether the 
 party to the Bill, against whom redress is sought, has 
 suffered any damage or not, by such omission. If he 
 has, he is, fro tanto, discharged ; if he has not, then he is 
 liable.'* The like rule seems adopted in other commercial 
 nations of Continental Europe.^ 
 
 1 Pothier de Change, u. 143. See also Code of Commerce, art. 165 to 
 167. . 
 
 2 Kemble v. Mills, 1 Mann. & Grang. R. 757. 
 
 3 See Ante, ^ 279 to 281, 306, 307 to 320, 326, 392. 
 
 4 Pothier de Change, n. 156, 157 ; Kerable u. Mills, iMann. & Grang. 
 R. 762, note (J) ; Ante, § 306, 372, 393. 
 
 5. Ibid. ; Casaregis, Discurs. Comm. Disc. 54. — The learned Reporters 
 have annexed to the case of Kemble v. Mills (1 Mann. & Grang. R. 762, 
 note b) an extract from Pothier, and also some comments as to the opinion 
 of other writers. The whole note is as follows : " Pothier says (Trait6 
 du Contrat de Change, No. 156, 157) ; ' The penalty incurred by the 
 Holder of a Bill of Exchange, when he or his agent has neglected to 
 cause it to be protested within the time prescribed by the law, or after hav- 
 ing done so, has neglected to bring his action against the Drawer and In- 
 dorsers within the time fixed by the Ordonnance, is, that he must take 
 
640 BILLS OF EXCHANGE. [CH. XIV. 
 
 § 479. And here these Commentaries upon Bills of 
 Exchange are brought to their close. The only remark, 
 
 upon himself the consequences of the insolvency of the Drawee, and is, 
 therefore, debarred from any action against the Drawer and Indorsers, for 
 the recovery of the sum which he has given for the Bill (Ordonnance de 
 1673, tit. 5, art. 15.) This penalty is a consequence of the obligation, 
 which the Payee contracts with the Drawer, to present the Bill when due, 
 to the Drawee for payment, and to advise the Drawer of the refusal of 
 payment, in order that the Drawer may take his measures to enforce pay- 
 ment. The Holder, -yvho neglects this duty, is liable to the damage which 
 the Drawer suffers. This damage consists in the loss susfained by the 
 Drawer, with reference to funds which he had remitted to the Drawee, 
 for the purpose of providing for the payment of the Bill ; and which funds, 
 perhaps, the former might have been enabled to withdraw if he had been 
 advised of the non-payment of the Bill. The reparation to be offered to 
 the Drawer for this damage, consists in making the Holder instead oL the 
 Drawer bear the loss resulting from the insolvency of the Drawee, by de- 
 priving him of all right of resorting to the Drawer for the value of the Bill ; 
 without prejudice, however, to any power he may have of obtaining pay- 
 ment from the Drawee, for which purpose he is allowed to exercise the 
 rights of the Drawer. In order to enforce this penalty, and in order that 
 the Drawer and Indorsers may be entitled to insist upon the inadmissibility 
 of the claim of the Holder (soient admis dans la Jin de non-recevoir, contre 
 la demande du proprietaire de la leitre,) founded upon the neglect of the 
 Holder to cause the Bill to be protested (or to bring his action within the 
 time fixed by the Ordonnance,) they are bound to prove, within the time 
 fixed by the Court, that the Drawee held funds to meet the Bill at the 
 time at which it ought to have been protested ; in default of which proof, 
 they are bound to reimburse the Holder the amount of the Bill.. This is 
 so decided by the Ordonnance de 1673 (tit. 5, art. 16,) which says, ' The 
 Drawers and Indorsers of Bills shall be bound to prove that the Drawees 
 were indebted to them, or had funds in their hands at the time when the 
 Bill ought to have been protested, otherwise they shall be held liable to 
 reimburse the Holder. The reason is, that as the Drawer, who has re- 
 mitted no funds, and is not a creditor of the Drawee, can suffer no damage 
 from the insolvency of the Drawee, or consequently from the want of pro- 
 test, or from the want of notice of protest, so he cannot complain of this 
 default ; nor can he, on^pretext of this default, by which he has sustained 
 no injury, as against the Drawee, excuse himself from the obligation to 
 reimburse to the Holder the amount of the unpaid Bill. This decision 
 holds, whether the Drawee has accepted or not ; because, though, by his 
 acceptance, he renders himself a debtor to the Holders of the Bill, he en- 
 
CH. XIV.J INLAND BILLS. ^41 
 
 which occurs to me as proper to be brought under the 
 review of the learned reader, is, that while England 
 was among the last, if not the very last, of the commer- 
 cial nations of Europe to adopt into her own jurispru- 
 dence the doctrines respecting negotiable instruments, 
 which the custom of merchants, and the flexible charac- 
 ter of the Civil Law had gradually introduced and 
 studiously spread over the whole Continent, to the 
 incalculable advantage of foreign trade and domestic 
 intercourse, and public and private credit, as being 
 repugnant to the sturdy precepts of her own Common 
 Law, she has, since her adoption of it, infused into it a 
 vigor, and given to it a practical convenience, and a 
 philosophical character, that make it the repository of 
 the most profound and enlightened principles, from 
 which every age may derive instruction, and to which 
 every enlightened jurist cannot fail to look with admi- 
 ration and reverence, as long as the Science of Law shall 
 be cultivated. 
 
 ters into no engagement with the Drawer, who has remitted him no funds.' 
 A much older writer, Casaregis (De Commercio, Disc. 54,) says : ' Prop- 
 terea pro regula tradimus, quod, ubi in facto appareat nihil omnino fuisse 
 profutura prsedicta protesta, vel ob decoctionem scribentis (the drawer of 
 the Bill of Exchange,) vel solvere debentis literas (the Dravtee of the 
 Bill,) tum omissio vel negligentia in illis eUvandis, vel transmittendis, nul- 
 latenus nocebit; quando enim diligentias prodesse non possunt, impunA 
 valent omitti per eum qui illas facere tenebatur.' With this, agrees Bal- 
 dasseroni, in his Leggi e Costumi del Cambio, Part 2, art. 10, ^ 35. And 
 see the Code de Commerce, No. 160, 170, 171." 
 
 54* 
 
INDEX. 
 
 The references are to the Sections, 
 
 ACCEPTANCE OF BILLS, 
 
 Governed by Lex loci 
 Obligations created by 
 Should be absolute 
 
 Section 
 
 . 158,164,265 
 
 113 to 115, 252, 323 
 
 239 
 
 Admits genuineness of Drawer's signature 113, 262 
 
 Admits the competency of the Drawer to draw 113, 262, 
 
 263, 412, 451 
 Does not admit genuineness of signature or com- 
 petency of other parties . 262, 263, 412, 451 
 Does not admit authority of agent to indorse the Bill 262 
 Admits the authority of agent to draw the Bill . 262 
 On what Bills necessary or not . . 228, 284 
 Necessary on Bills payable at or after sight . 228 
 Not necessary on Bills payable after date, or at a 
 
 fixed time ..... 228 
 
 What acceptance the Holder is bound to take or 
 
 not ...:.. 230 
 
 Not of infants . . . .230 
 
 Not of married women . . . -230 
 
 Not of incompetent persons . . . 230 
 
 Not conditional or restrictive . . . 240 
 
 Presentment for . . . . 227 to 238 
 
 (See Presentment foe Acceptance.) 
 Effect of taking conditional, or restrictive, or quali- 
 fied acceptance .... 240, 241 
 ^What is conditional, or restrictive, or qualified . 239 
 Conditional, should be on face of Bill . 240,241 
 How it may be made . . . 242 to 246 
 Verbal or in writing .... 242 
 Express or implied .... 242 
 What words amount to or not . . 243 to 247 
 Form and mode of .... 251 
 Of non-existing Bills, when it may be or not . 249 
 Written on blank paper, effect of . . . 250 
 
644 
 
 INDEX. 
 
 ACCEPTANCE OF BILLS, Continued. Section 
 
 Effect of . . . . ■ 113 to 115,253 
 
 When and how waived or discharged 252, 265 to 271 
 
 Accommodation, good in favor of Holder . . 253 
 
 Successive acceptances cannot be . . . 254 
 
 Acceptance au lesoin, effect of . . . 255 
 
 Acceptance sufra protest, effect of 121 to 125, 255 to 261 
 Acceptance by guaranty .... 254 
 
 Acceptance admits genuineness of signature of 
 Drawer ..... 262,263 
 
 But not of Indorsers . . . 262, 263 
 
 Waiver and discharge of . . 252,265 to 271 
 
 By operation gf law . . . 265, 266 
 
 By act of parties . . 252, 265 to 268 
 
 By payment of Bill . . . 265, 269, 270 
 
 By release of one or more parties . 265, 269, 270 
 
 By taking security . . . 266 to 268 
 
 By discharge in bankruptcy . . . 265 
 
 What words amount to waiver or discharge 
 
 of . . . . . .265 
 
 What is not a waiver or discharge of 266 to 271 
 
 ACCEPTANCE AU BESOIN, . . . .255 
 
 ACCEPTANCE SUPRA PROTEST, 
 
 What is . . . 121 to 125, 255 to 261 
 
 Effect of . . . 121 to 125, 255 to 261, 363 
 
 Admits genuineness of signature of Drawer 262, 263, 
 
 410,411 
 But not of Indorsers . . 262,263,412 
 
 When and how liable 121, 125, 255 to 261, 344, 363, 396 
 ACCEPTOR SUPRA PROTEST, 
 
 Rights and duties of . 124,125,258,396,397 
 
 396, 397 
 
 452 
 
 452 
 
 70, 106 
 
 113 to 115, 252,323 
 
 50,51,417 
 
 420, 421 
 
 416, 447 to 449 
 
 Notice of non-payment to 
 
 Payment by, when valid 
 
 Payment by, effect of 
 ACCEPTOR, who may accept Bills 
 
 Obligations and duties of 
 
 When payment of Bills by, good or not 
 
 Effect of payment by 
 
 Whether bound to pay lost Bills 
 
 (See Capacity and Competency.) 
 ACCOMMODATION BILLS, 
 
 What are .... 
 
 Effect of .... 
 
 Between what parties material to inquire 
 
 Acceptances, effect of 
 
 Patties to, rights of 
 
 When entitled to notice or not 
 
 187, 191 
 187, 191 
 . 191 
 . 253 
 370, 376 
 . 376 
 
INDEX. 645 
 
 ACCOMMODATION BILLS, Continued. Section 
 
 When parties may insist on due presentment of . 370 
 
 ACCOUNT, directions to place to account ... 65 
 
 ADMINISTRATORS AND EXECUTORS, parties to Bills 72, 74, 75 
 Notice by and to ». . . . .74 
 
 ADMISSION of signature of parties, what amounts to 111, 113,225,262 
 By Acceptor . , . . . 113, 263 
 
 By Indorsers .... 110, 225 
 
 ADVICE, whether necessary to be stated in Bill . . 65 
 
 Use and effect of . . . . .65 
 
 AGENTS, parties to Bills ... . . 72, 76, 77 
 
 Indorsement by, effect of . . . .76 
 
 Indorsement to, effect of . . . . . 224 
 
 Authority of to sign or indorse Bills, when admitted 
 
 by parties or not . . . 110,113 
 
 When treated as a distinct Holder . . 292 
 
 Payment by or to, when good . . . 413 
 
 AGREEMENTS to waive or discharge parties 252, 265 to 271,280, 417, 
 
 371, 373 
 (See Acceptance, Protest, Presentment, Notice.) 
 
 ALIENS, who have a capacity or not to be parties to Bill 72, 99 to 105 
 
 ALIEN ENEMIES, when competent or not to be parties to 
 
 Bills . . . . . 99 to 105 
 
 ALLONGE on Bills, meaning of . . . 204, 218 
 
 ASSIGNEES. {See Assignment.) 
 
 In bankruptcy, rights and duties of, as to Bills 195, 201 
 When entitled to transfer of Bills . . 195 
 
 Presentment to and by assignees in bankruptcy 305, 363 
 Notice to and by assignees in bankruptcy" 305, 326, 346, 347, 
 
 362, 375 
 Rights of assignees of non-negotiable Bills 199, 201 
 
 Effect of assignment of Bills without indorsement 201 
 
 When payment to, in bankruptcy . . . 413 
 
 ASSIGNMENT OF BILLS .... 195 to 226 
 
 (See Transfer.) 
 By or to the government .... 60 
 
 Of Bills not negotiable , . . 199, 200 
 
 By delivery. (See Bearer.) . 56, 57, 199, 200 
 
 By indorsement. (See Transpee.) . 199, 200 
 
 AU BESOIN, Bills drawn with such clause, effect of . .65 
 
 Bills indorsed with such clause . . .219 
 
 AVAL, what it is. {See Guaranty.) . . . 394, 395, 454 
 
 Effect of .... 394, 395, 454 to 458 
 
 Whether negotiable or not . . . 454 to 458 
 
646 
 
 INDEX. 
 
 B. 
 
 
 
 
 Section. 
 
 BANK NOTES, when a good payment or not . 
 
 
 . 419 
 
 BANKERS, when treated as Holders as to their customers 
 
 
 292 
 
 Bills payable at ... . 
 
 
 355 
 
 When deemed Holder^ for value 
 
 
 189 
 
 No excuse for non-presentment of Bills for acceptance 203 
 
 Nor for non-presentment of Bills for payment 
 
 326, 
 
 346, 347, 
 
 363 
 
 375, 476 
 
 Discharge under, effect of on Bills . 
 
 
 265 
 
 Notice, when to . . . 305, 
 
 346 
 
 347, 362 
 
 Payment in cases of . 
 
 
 413 
 
 BEARER, Bills payable to, when good or not 
 
 
 56,57 
 
 Liability of Transferrer on such Bills 56, 57, 111, 
 
 199, 200, 
 
 
 
 225 
 
 Transferable by delivery . . 56, 
 
 57, 
 
 199, 200 
 
 BILLS OF EXCHANGE, 
 
 
 
 Origin and nature of . . . 
 
 
 . 5 to 20 
 
 Name and definition 
 
 
 
 ■ 2,3,4 
 
 Not known to the Ancients 
 
 
 
 6 
 
 Theory of . 
 
 
 
 . 12, 13 
 
 Privileges peculiar to 
 
 
 
 14 to 17 
 
 Negotiable character of 
 
 
 
 17 to 19 
 
 Origin of, in England 
 
 
 
 19 
 
 Law of, founded in usage . 
 
 
 
 20 
 
 Different kinds of . 
 
 
 
 21 
 
 Foreign Bills, what are 
 
 
 
 22 to 25 
 
 Inland' Bills, what are 
 
 
 
 22 to 95 
 
 Forms of . • ... 
 
 
 
 26 to 29 
 
 Par of Exchange, what 
 
 
 
 30 
 
 Rate of Exchange, what 
 
 
 
 31 
 
 Requisites of 
 
 
 
 32 to 69 
 
 The form 
 
 
 
 33 to 36 
 
 The date 
 
 
 
 37 to 39 
 
 The place, where drawn 
 
 
 . 40, 41 
 
 The sum to be paid . 
 
 
 42 to 45 
 
 ^ The mode of payment 
 
 
 . 46,47 
 
 The place of payment 
 
 
 . 48,49 
 
 The time of payment 
 
 
 . 50,51 
 
 The names and description of the 
 
 par 
 
 - 
 
 ties 
 
 
 52 to 59 
 
 The negotiability of . 
 
 
 60 to 62 
 
 When not essential . 
 
 
 60 to 62 
 
 The statement of Value received 
 
 
 63,64 
 
 The statement of Ad\ 
 
 ice, &c. 
 
 
 65 
 
INDEX. 
 
 647 
 
 BILLS OF EXCHANGE, Continued. 
 
 Section. 
 
 The competency and capacity of par- 
 ties . . . 70 to 106 
 Sets of Exchange . . . 66,67 
 Bills au besoin ... 65 
 Mnst be in wtiting or pencil . . .33, 34 
 What is language of request in . . .33 
 On what part of the paper Bill must be written . 34 
 Parties to Bills, how many . . .35, 36 
 Drawer .... 35 
 
 Payee .... 35 
 
 Drawee .... 35 
 
 Date, when essential . . . 37 to 39 
 
 Place of drawing, when essential . . . 40,41 
 
 Payment in money, only essential . . 42 to 44 
 
 Description of kind of coin . . . 43,44 
 
 Payment must be absolute, and not upon condition 46 
 
 Payment must be general, and not out of particular 
 funds ...... 46 
 
 Payment must not be on contingency . . 46 
 
 What is, or is not, a contingency . . . 46, 47 
 
 Place of payment, where generally payable . 48, 49 
 
 When a special place . . 48, 49 
 
 Time of payment must be fixed . . .50,51 
 
 Usage as to time . . .50, 51 
 
 Description of parties to Bills . . 52 to 59 
 
 Drawer, how described . . 52, 53 
 
 Payee, how described . 54 to 57 
 
 Bills payable to Bearer . . 56, 57 
 
 Bills payable to order of Payee . 56, 57 
 
 Drawee, description of . . 53, 59 
 
 Negotiability of . . . . 60 to 63 
 
 When negotiable or not . 60 to 62 
 
 Whether negotiable when sealed . 61 
 
 Payable to order or to Bearer . . 60 to 63 
 
 Value received, whether necessary to be stated . 63, 64 
 
 Effect of statement of . . 63, 64 
 
 Advice, use and effect of . . . .65 
 
 Placing to account .... 65 
 
 Form of sets of Exchange . . . . 66, 67 
 
 Special reservations and restrictions . . 68, 69 
 
 Competency and capacity of parties to . 70 to 106 
 
 All persons, sui juris 72, 73, 80 to 83 
 
 Aliens, when ... 72 
 
 Agents . .... 72, 76, 77 
 
 Administrators and executors, 73, 74,75 
 
648 INDEX. 
 
 BILLS OF EXCHANGE, Continued. Section. 
 
 Guardians . . . 72, 74, 75 
 
 Trustees . . .72, 74, 75 
 
 Partners .... 78 
 
 Corporations . . .79 
 
 Infants or Minors . 81, 84 to 87, 127 
 
 Married women . . 90 to 98, 128 
 
 Alien enemies . . 99 to 105 
 
 Insane persons and non compotes . 106 
 Riglits, duties, and obligations of parties to 107 to 177 
 
 Of Drawer . 107,114,117,118,230 
 
 Of Payee . . 108, 116 to 119 
 
 Oflndorser . . 108 to 111, 119, 120 
 
 Of Indorsee . . . .112 
 
 Of Drawee and Acceptor 112, 113, 115, 117 
 Of Acceptors supra protest 121 to 126 
 
 Of Infants, who are parties . . 127 
 
 Of married women . . . 128 
 
 Operation of Lex loci on Bills . . 129 to 177 
 
 {See Lex Loci.) 
 Genuineness of signatures to, when admitted 111, 113, 225, 
 
 262 
 By Acceptor . . 113,262 
 
 Bylndorser . . 111,225,262 
 
 Consideration, when necessary or not . 178 to 186 
 
 What is a valuable consideration or not . 180 to 183 
 
 In what cases, and between what parties, a con- 
 sideration is required • • 179, 187 to 194 
 Fraudulent consideration .... 185 
 Illegal consideration . . . 186, 187 
 EfFectof total failure of consideration . 184,187,188 
 Effect of partial failure of consideration . 184, 187, 188 
 Bona fide Holder not affected by want or failure of 
 
 consideration ... 187 to 189, 193 
 
 Effect of notice of defect of title to Bill upon the 
 
 rights of the Holder . . . .194 
 
 What is constructive notice of defect or not . 194 
 
 ' Transfer of Bills .... 195 to 226 
 
 Who may transfer or not 72 to 106, 195 to 197 
 
 (See Capacity and Competency.) 
 
 To whom transferable . . .198 
 
 Mode of transfer . . . 199, 200 
 
 Of Bills payable to Bearer 
 
 199, 200, 203, 207 
 Of Bills payable to fictitious per- 
 sons ... 56, 200 
 
INDEX. 
 
 649 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 Of Bills payabie to order 200 to 204, 207,210 
 
 Of BHIb not negotiable . . 199 
 
 Effect of omission of indorsement by mistake 201 
 
 Parties compellable to make transfer, when 
 
 omitted by mistake . . . 201 
 
 Transfer by partners . . . 197 
 
 Transfer by persons not partners . . 197 
 
 Indorsement in blank, effect of 202, 206 to 208 
 
 Form of transfer of . . 204 to 207 
 
 Transfer on an allonge, or separate paper . 204 
 
 What essential to perfect transfer . 204, '205 
 
 Qualified and restrictive indorsements of 206, 210,211 
 What indorsements are restrictive or not 211, 213 to 
 
 215 
 Conditional indorsements . 
 Full indorsement, effect of 
 Guaranty on indorsement, effect of 
 Special clauses on indorsement 
 Successive indorsements, effect of 
 Transfers with a clause au besoin . 
 Transfers, where blanks are left in Bills 
 Time of transfer . 
 
 206, 
 206, 
 
 217 
 208 
 215 
 216 
 218 
 219 
 223 
 220 to 223 
 
 Effect of transfer after Bill due . 220,231 
 
 Effect of transfer of Bill after payment of Bill 223 
 Transfer of sets of Exchange . . 226 
 
 Presentment for acceptance . . 227 to 238 
 
 In what cases necessary or not . . 228 
 
 Effect of presentment, when not neces- 
 sary ..... 228 
 By whom, and to whom, to be made . 229 
 At, and within what time . 231,232 
 On what days and hours . . 233 
 Not on Sundays or holydays . 233 
 What excuses good for non-presentment 
 for acceptance 
 What not 
 At what place . 
 On Bills payable au besoin 
 Acceptance of Bills 
 
 What is a good acceptance or not 
 
 Should be absolute 
 May be absolute, or qualified, or restric- 
 tive, or conditional . 
 What is conditional or not 
 55 
 
 234 
 230 
 235, 236 
 237 
 238 to 271 
 238, 239, 243 
 to 248, 251 
 239 
 
 239 
 239 
 
650 
 
 INDEX. 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 Holder not bound to accept a conditional 
 
 acceptance .... 240 
 Effect of taking a conditional or qualified 
 
 acceptance . . . 240^ 241 
 
 Conditional, should be on the face of the 
 
 acceptance . . . 340, 341 
 
 May be verbal or in writing . . 242 
 
 May be express or implied . . 242 
 
 What words amount to . . 243 to 346 
 
 What words will not amount to . - . 247 
 Of non-existing Bills, how far and when 
 
 good ..... 249 
 Acceptance on blank paper, when good . 250 
 Form and mode of . . .251 
 
 Effect of acceptance . 113 to 115, 252 
 
 When and how waived . 252, 265 to 271 
 
 Accommodation acceptance, effect of, as 
 
 to Holder's rights . . .253 
 
 There cannot be successive Acceptors . 254 
 Acceptance au lesoin, effect of . . 255 
 
 Acceptance by guaranty . . 254 
 
 Acceptance ««^ra yroto^, effect of 121 to 125, 
 
 255 to 261 
 Acceptance supra protest admits genuine- 
 ness of the signature of Drawer 262, 263, 
 
 412, 451 
 But not of Indorsers 262, 263, 412, 451 
 Acceptance, how waived or discharged 252, 265 to 271 
 By operation of law . . . 265, 266 
 
 By act of parties . . 252, 265 to 268 
 
 By payment of Bill . . . 265,269,270 
 
 By a release .... 265, 269, 270 
 By a release of one party . . 269, 270 
 
 When by taking security or not . 266 to 268 
 
 By discharge in bankruptcy . . . 265 
 
 What words amount to a waiver of . . 252 
 
 What is not a waiver or discharge of acceptance 266 
 
 to 268, 271 
 
 Non-acceptance, proceeding on . . 272 to 322 
 
 Duties of Holder on . . 272 to 274 
 
 Duty to make protest . . 273, 274, 277 
 
 Duty to give notice of dishonor 227, 228, 273, 274, 
 
 284, 307 
 Waiver on Bills not required to be presented 
 
 for acceptance . . . 228, 284 
 
 Exceptions to the rule' . . 275, 280, 308 
 
INDEX. , 651 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 Protest required of all Foreign Bills . 275,281 
 
 Protest, what is ... . 276 
 
 Protest governed by Lex Loci 138, 176, 177, 276, 
 
 278, 285, 296 
 Protest, how and by whom made . . 276 
 
 Protest, form of . . . .277 
 
 Protest, time of making . . 278, 283 
 
 Protest indispensable in common cases 176, 273, 274, 
 
 277, 278, 285, 296 
 Bankruptcy or death no excuse for not mak- 
 ing protest .... 279 
 What will excuse rot making due protest . 280 
 Accident and casualty . 280, 283 
 Want of funds by Drawee, as to 
 Drawer .... 280 
 
 314 
 279 
 280 
 281 
 282 
 284 
 176, 177 
 
 285 to 290, 292 
 290 
 
 286 to 288, 300 
 287, 298 
 
 288, 289, 297, 298, 300 
 291, 297, 300 
 
 But not as to Indorsers 
 What will not excuse want of 
 Waiver of protest, what is 
 , Protest of Inland Bills not required 
 Place of protest 
 Notice of Dishonor 
 Governed by Lex Loci 
 Time of giving notice 
 Within what times 
 In what mode notice given 
 When by packet 
 When by mail 
 When oral or persona] 
 To what parties and by whom 291, 292, 303 to 305, 
 
 360 
 Banker and agent treated as distinct Holders 
 
 as to giving notice .... 292 
 Notice must be on business days . 293, 308, 309 
 
 Effect of notice on Sundays and holydays 293, 308, 309 
 Notice by successive parties on Bills, within 
 
 what time and how . . , 294 
 
 Notice by special messenger, when good 295, 300 
 
 Notice at and to what place given or sent 297, 298,305 
 Notice at domicil or place of business 291, 297 
 
 Notice sent abroad . . . 287, 298 
 
 Notice, when residence is not known . . 299 
 
 Notice to partners . . . 299, 305 
 
 Notice to joint parties not partners . . 299 
 
 Mode of notice . . 286 to 288, 300 
 
 When personal or not . . 291,297,300 
 
652 INDEX. 
 
 BILLS OP EXCHANGE, Continued. Section 
 
 When in writing .... 300 
 
 Notice to agent, clerk, or servant . 300, 305 
 
 Form and sufficiency of . . .301 
 
 Wliether protest should accompany notice 302, 303 
 
 By whom notice to be given . 291, 292, 303, 304 
 
 Notice by any party to Bill, effect'of . 304, 360 
 
 To whom notice to be given . 291, 292, 300 to 305 
 
 To agent . . . .305 
 
 To partners . ... . 305 
 
 To assignees of bankrupt . . 305 
 
 To executors and administrators . 305 
 
 To bankrupt . . . .305 
 
 To Guarantor . . .305 
 
 Notice, what will excuse want of 275, 281 to 320 
 
 Casualty and impossibility of giving notice 308 
 
 Absconding of party . . . 308 
 
 Malignant disease . . . 308 
 
 When excused as to accommodation 
 
 of parties .... 310 
 Excuse of want of funds of Drawer, 
 
 when good or not . 311 to 315, 327 
 
 Excuse as to Drawer, when not ex- 
 cuse as to Indorsers . 314, 837 
 Taking security for the Bill, when an 
 
 excuse . . . . 316 
 
 Agreement to waive notice, when, and 
 
 what, an excuse . . . 317 
 
 What excuse for want of notice is not 
 
 valid . . . 318 to 320 
 
 Waiver of notice . . . 320 
 
 What acts amount to waiver . . 320 
 
 Promise to pay Bill after knowledge 
 
 of laches . . . . .320 
 
 EfiTeot of due notice and rights of 
 Holder thereon . . . 321 
 
 Right of Holder to immediate suit and damages . 321 
 
 Right of Holder to sue immediately on non-accept- 
 ance and due protest and notice . . 321,322 
 Presentment for payment . . . 323 to 378 
 At what time . . 324, 325, 344, 345 
 At maturity of Bill . 324, 325, 328, 344, 345 
 At what time different Bills payable . 335 
 Bills payable at or after sight . . 335 
 Bills payable after date . . . 325, 329 
 Bills payable on demand . . . 335 
 
INDEX. 653 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 At what hours of day . . 328,349 
 
 When is a Bill at mat(irity . . 329 
 
 How time computed . . 329, 330 
 
 Day of date and acceptance excluded in 
 
 computing time . . . 329 
 
 Month means calendar month . 143, 330 
 
 Old Style and New Style, difference of 321 
 Usance, meaning of . . 50, 144, 332 
 
 . Usance different in different countries . 332 
 Days of grace, what are 155, 159, 177, 333 to 
 
 336 
 Days of grace different in different coun- 
 tries . . .333 to 336 
 Days of grace governed by Lex Loci 155, 159, 
 
 177, 134, 135 
 How days of grace computed 335, 336, 338 to 
 
 341 
 Days of grace computed exclusive of the 
 
 other days .... 333 
 Days of grace counted including Sun- 
 days and holydays . . . 337 
 Effect of last day of grace being a Sunday or holy- 
 day .... . 338 to 341 
 Days of grace ou what Bills allowed . ' 342, 343 
 on Bills payable after date . 342, 343 
 on Bills payable at or after sight 342, 343 
 not allowed on Bills payable on demand 342 
 What will excuse want of due presentment for pay- 
 ment . . 326, 327, 365, 366, 367' 
 Sudden illness .... 327 
 Accident and irresistible force . 326, 365 
 Political events and war . . 327, 365 
 Absconding of Acceptor . , 327,346 
 Acceptor cannot be found . . . 327 
 Want of funds by Acceptor belonging to 
 
 Drawer, when . . 329, 367 to 369 
 
 Not as to Indorsers . . 327, 367 
 
 New promise after notice ofnon-presentment 373 
 What amounts to new promise . . 373 
 
 In cases of accommodation parties . 370, 376 
 
 Agreement and waiver of presentment 371 
 
 In cases of collateral security . 372, 374 
 
 In cases of guaranty . . . 372 
 
 What will not excuse want of presentment for pay- 
 ment . . 326, 346, 347, 375, 376 
 55* 
 
654 INDEX. 
 
 BILLS OF EXCHANGE, Continued. Suction 
 
 Bankruptcy and insolvency of Acceptor 
 
 will not . 326, 346, 347, 362, 375 
 
 Death of Acceptor will not . 326,346,375 
 
 Death of Drawer and Indorser, his ad- 
 ministrator .... 377 
 Receipt of Bill near time of its falling due 326 
 Effect of want of due presentment . . . 344 
 
 In cases of accommodation parties . 376 
 
 In cases of Bills signed and indorsed by 
 two firms, where some are parties in 
 each firm .... 377 
 
 No excuse that party has knowledge of 
 
 non-payment, but he must have notice 377 
 
 To Acceptor supra protest . . 344 
 
 To whom presentment to be made 346 to 350, 362 
 In case of bankruptcy . . 346,347,362 
 
 In case of death . . 346,347,362 
 
 In case of Acceptor being abroad or not 
 
 being found . . 346, 352, 362 
 
 In case of death of partner . 346,362 
 
 In case of loss of Bill . . . 348 
 
 In case of acceptance supra protest . 363 
 
 Whether presentment need be personal or not 350 
 
 Effect of Acceptor not being at home . 350 
 
 At what place . . . 351, 353 
 
 When at domicil or place of business . 351 
 
 In case of change of domicil . . 351 
 
 In case dwelling-house is shut up . 352 
 
 Or Acceptor cannot be found . . 352 
 
 In case Bill be payable at another place 353, 
 
 357, 359 
 In case of a Bill payable at either of 
 
 two places .... 354 
 In case of a Bill payable at a banker's 355 to 
 
 357, 359, 362 
 In case of a Bill payable, by or to 
 
 Jews, mode of presentment in Germany 358 
 
 By whom to be made . . 360 to 363 
 
 By Holder or his agent . . 360 
 
 By executor or administrator, if Holder dead 360 
 
 By husband, if Holder marries . 360 
 
 Mode of presentment .... 364 
 
 When it may be verbal or in writing . 364 
 
 Payment in money should be required . 364 
 
 When presentment for payment not necessary . 369 
 
INDEX. 
 
 655 
 
 BILLS OF EXCHANGE, Continued. 
 
 Section 
 
 Not in case of protest for non-acceptance . 366 
 
 Lex loci governs as to 
 
 366 
 
 Proceedings on non-payment 
 
 378 to 409 
 
 Protest for non-payment 
 
 378 to 380 
 
 (See Supra.) 
 
 
 Protest for non-acceptance . 
 
 284 to 323 
 
 Notice of non-payment 
 
 . , 381 
 
 (See SuPEA.) 
 
 
 Notice for non-acceptance . 
 
 285 to 305 
 
 When notice necessary 
 
 381 
 
 Within what time . 
 
 382 
 
 What is reasonable 
 
 . 382, 384, 385 
 
 Personal notice 
 
 382 
 
 Notice by mail 
 
 382 
 
 By packet ship 
 
 383 
 
 By whom 
 
 385, 388 
 
 By indorsers receiving notice 
 
 . ^ 384, 385 
 
 To what place sent . 
 
 386, 387 
 
 To whom to be given 
 
 389 
 
 Form of notice 
 
 390 
 
 What will excuse want of ngtice of nor 
 
 i-payment 279, 307 
 
 
 to 320, 326, 392 
 
 Notice to Gurantor, what, and when re 
 
 quired 305, 372, 393 
 
 Notice to Acceptor supra protest . 
 
 396 
 
 Rights of Acceptor supra protest upon payment 396, 
 
 
 397 
 
 Duties of Acceptor supra protest 
 
 to give notice 396 
 
 Law of France, as to notice 
 
 394 
 
 Law of foreign countries, as to notice to Gua- 
 rantors .... 305, 372, 393 
 Damages, interest, and charges on non-payment 398 to 408 
 When payable by Acceptor . . 398 
 
 What by Drawer and Indorsers . . 399 
 
 Keexchange, meaning of . . 400, 401 
 
 Reexchange, when and by whom payable 399, 401 
 Reexchange in writers, when allowed 402, 403 
 
 Law of France, and other foreign countries, 
 
 as to damages and reexchange . 404 to 406 
 
 Fixed damages in lieu of exchange in some 
 
 cases .... 407, 408 
 
 Payment and other discharges of Bills of Exchange 409 
 
 to 423 
 Effect of payment by Acceptor . 410,450 
 
 When payment by Acceptor valid or not 410 to 412 
 Payment in cases of notice of defective title 411 
 
656 INDEX. 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 Payment in cases of forgery of signature of 
 
 Drawer or Indorsers ... 412 
 
 Payment in cases of bankruptcy and insolvency 
 
 of Holder ..... 413 
 In case of death of Holder . . .413 
 
 In case of agency .... 413 
 
 In case of a defective title of Holder . . 413 
 
 In case of infants and married women . 414 
 
 Possession of Bills, when sufficient to justify 
 
 payment to Holder . . . 415,416 
 
 In cases of lost and stolen bills 416, 447 to 449 
 
 At what time payment is to be made . 50, 51, 417 
 
 Not until maturity of the Bill . . 417 
 
 In what coin and currency payable . 418, 419 
 
 Payment, when currency is depreciated . 418 
 
 Should he in money, and not by checks or goods 419 
 
 Rights of Acceptor upon payment of Bill 420, 421 
 
 Payment of Bill by Drawer or Indorser, effect of 422, 423 
 
 When payment by Indorser good so as to 
 
 bind antecedent parties . 422, 423 
 
 What acts of Holder will discharge parties to 
 
 the Bill . . . 265, 272, 424 to 452 
 
 What will discharge the Acceptor . . 424 
 
 What the Drawer . . 424, 425 to 446 
 
 What the Indorsers . . . 424 to 446 
 
 When giving time to Acceptor will discharge 
 
 Drawer or Indorsers . . 424 to 430 
 
 What acts will not discharge Drawer or In- 
 dorser . ' . . . 425 to 440 
 Discharge of subsequent parties does not discharge 
 prior parties ..... 434 
 Effect of release of Acceptor, and what 
 
 parties it discharges . . 428 to 431 
 
 Effect of release of one joint Acceptor, or 
 
 Drawer, or Indorser . . 430 to 433 
 
 Effect of release of party for whose accom- 
 modation the Bill is made, or indorsed, 
 or accepted . . . 432, 433 
 
 Effect of compounding debt with Acceptor 429 
 Accommodation parties, when discharged 
 
 or not . . . . 433 to 434 
 
 Effect of discharge of a party, under bank- 
 rupt laws .... 435 
 Effect of a voluntary discharge of a bankrupt 433 
 Effect of receiving part payment . . 436 
 
INDEX. 657 
 
 BILLS OF EXCHANGE, Continued. Section 
 
 The law of France on the subject of pay- 
 ment and discharge of parties . 437 to 446 
 Of extinguishment under French Law by 
 
 compensation .... 440 
 
 By novation . . . 441 
 
 By confusion . . 442 to 445 
 
 By release of joint debtor . . 446 
 
 Payment of lost or destroyed Bills . . 447 to 449 
 
 Whether Acceptor or Indorser bound to pay Bill, 
 
 if lost, and not produced . . . 447 to 449 
 
 Payment, legal effect of ... 450, 452 
 
 When money paid, recoverable back . . 450 to 453 
 
 Payment by Acceptor supra protest . . . 452 
 
 In cases of forgery of signature of a party to the 
 
 Bill . . . . . 450 to 452 
 
 Guaranty of Bills. (See Aval.) . . 453 to 458 
 
 Guaranty on face of Bills, effect of . . 454 to 458 
 
 Guaranty on face of Bills, whether negotiable 454 to 458 
 
 Guaranty on separate paper, effect of . . 458, note. 
 
 Whether guaranty on separate paper is negotiable 458, note. 
 
 Letters of Credit to draw Bills. . . 459 to 464 
 
 Nature and effect of . . . 459 to 464 
 
 General and special . . . 459, 460 
 
 Whether capable of negotiability . 460 to 463 
 
 Inland Bills, what . . . 22 to 25, 464, 465 
 
 Origin of .... . 466 
 
 Origin of in England . . . 467,468 
 
 Difference between, and foreign Bills as 
 
 to protest ..... 468 
 Payment demandable at same time as fo- 
 reign Bills . . . . .469 
 Omission of protest in England, effect of . 468 
 What entitled to days of grace . . 469 
 Payable at, or after sight, or date 470, 477 
 Not if payable on demand . . 470 
 ' At what time payment to be demanded on 470 to 475 
 Effect of putting in circulation as to demand 470 to 475^ 
 What is excuse or not for want of due present- 
 ment for payment . . . 476 to 478 
 BLANK BILLS, effect of, as to bona fide Holders . 53, 54, 57 
 Blanks may be filled up . . . 53, 54, 57 
 BLANK INDORSEMENTS, validity of . 34,108,111,119,120 
 Governed by Lex loci .... 156 
 Bills pass by delivery on . ... . 109 
 
658 
 
 INDEX. 
 
 C. 
 
 executors 
 
 Section 
 70 to 106 
 72 
 72, 76, 77 
 72, 74, 75 
 72, 74, 75 
 72, 74, 75 
 78 
 79 
 81, 84 to 87 
 90 to 98 
 99 to 105 
 106 
 113 
 110, 225 
 230 
 
 230 
 
 79 
 
 419 
 
 CAPACITY AND COMPETENCS of parties to Bills 
 
 Alien friends 
 
 Agents 
 
 Administrators and 
 
 Guardians 
 
 Trustees 
 
 Partners 
 
 Corporations 
 
 Infants 
 
 Married women 
 
 Alien enemies 
 
 Insane persons 
 
 When warranted by Acceptor 
 
 When warranted by Indorsers 
 
 Infants cannot bind themselves by acceptance 
 
 Married women cannot bind themselves by accept 
 ance ..... 
 CASHIER OP BANK, indorsement by or to, effect of . 
 CHECK, not a good payment of Bills . . . 
 
 CHRISTMAS DAY, deemed a non-business day 233, 293, 308, 309, 
 
 333 to 341 
 {See Sundays and Holtdays.) 
 COIN, FOREIGN, how described in Bills . . . 43,44 
 
 In what payment of Bills made . . . 418, 419 
 
 COLLATERAL SECURITY FOR BILLS OF EXCHANGE, 
 
 Effect of taking a Bill or note as 266 to 268, 372, 393 
 
 COMPENSATION IN FOREIGN LAW, what . . 440 
 
 Effect of . . . . . .440 
 
 COMPETENCY 70 to 106 
 
 (See Capacity and Competency of Parties.) 
 COMPOUNDING THE DEBT BY HOLDER, 
 
 Effect of . 
 CONDITIONS AND CONTINGENCIES IN BILLS, effect of 
 
 Make them not negotiable 
 
 What words create them 
 
 What not . 
 
 Conditional acceptance 
 Indorsement 
 CONFUSION IN FOREIGN LAW, what 
 
 Effect of . 
 CONSIDERATION OF BILLS, 
 
 When necessary or not ; 
 
 What is a valuable consideration or not 
 , Between what parties necessary 
 
 , 
 
 429 
 
 effect of 
 
 46 
 
 , , 
 
 46 
 
 . 46 
 
 ,47 
 
 , 
 
 47 
 
 240, 
 
 241 
 
 216, 
 
 217 
 
 , , 
 
 442 
 
 442 to 445 
 
 178 to 
 
 186 
 
 180 to 182, 
 
 189 
 
 179, 197 to 194 
 

 . 
 
 135 
 
 
 
 186 
 
 
 186, 
 
 187 
 
 
 186, 
 
 187 
 
 . 184, 
 
 187, 
 
 188 
 
 . 184, 
 
 187, 
 
 188 
 
 INDEX. . 659 
 
 CONSIDERATION OP BILLS, Continued. 
 
 What consideration bad 
 
 Effect of .... 
 
 What illegal 
 
 Effect of, illegal 
 
 Effect of total failure of 
 
 Effect of partial failure 
 
 Bona fide Holder, when not affected by want, 
 
 or failure, or illegality of . 187 to 189, 193 
 
 What is notice or not to Holder of defect of 
 title, or want of consideration . . . 194 
 
 Effect of notice, actual or constructive . . 194 
 
 CONTRACTS, by what law governed. {See Lex Loci.) 129 to 177 
 
 Where to be performed . . . 146 to 152 
 
 Remedies on, by what law governed 160, 172 to 175 
 
 CORPORATIONS, capacity to draw, receive, indorse, or accept 
 
 Bills 79 
 
 CURRENCY, in what Bills should be paid . . 418, 419 
 
 Effect of depreciated currency . . .418 
 
 D. 
 
 DAMAGES ON BILLS, 
 
 XeicZoa governs as to . 155,177,391,398,399 
 
 What damages allowed on foreign Bills . 397 to 408 
 Reexchange, when allowed . . . 399 to 404 
 
 Fixed damages, in what cases . . 407, 408 
 
 Expenses, and charges included in . . 399 to 408 
 
 (See Re-exchange.) 
 
 DATE OF BILLS, when necessary, and how stated . 37 to 39 
 
 Time of Bills payable after, computed exclusive of 
 date ...... 329 
 
 DAYS OF GRACE, what they are . . . 333 to 336 
 
 Different in different countries . . ' 333 to 336 
 
 Governed by Lex loci . . 155, 159, 177, 334 
 
 Computed exclusive of the days stated in Bill 333 to 336 
 Computed inclusive of Sundays and holydays . 337 
 
 Effect of last day being a Sunday or holyday 338 to 341 
 On what Bills allowed . . . .342 
 
 Allowed on Bills payable at, or after sight, or date 342, 
 
 469, 470 
 Not allowed on Bills payable on demand . 342, 370 
 
 DEATH OF PARTY, 
 
 No excuse for not presenting Bills for acceptance 230 
 
 Nor for not presenting Bills for payment . . 326 
 
 Of partner, effect of . . . 346,362 
 
 In case of, to whom payment to be made . . 413 
 
660 
 
 INDEX. 
 
 Section 
 DEFENCES, governed by Lex loci, . . . 156, 164 
 
 Against Bill, not admitted against bond fide Holders 
 
 before maturity of Bill . .14,187,188,417,430 
 
 Set off, when not good .... 420 
 
 DEFINITION AND ORIGIN OF BILLS OF EXCHANGE 2, 3, 4 
 
 DELIVERY, transfer by . . 56, 57, 197, 199, 200, 201 
 
 To Bearer . . .34, 108, 111, 119, 120, 200 
 
 Of Bills indorsed in blank . . . .109 
 
 ■Responsibility of transfer or by . . 111,200 
 
 DEMAND of payment of Bill when 
 
 (See Pebsentment for Payment.) 
 DIRECTION OF BILLS TO DRAWEE ... 58 
 
 DISCHARGE OF BILLS, 
 
 Governed by Lex loci . . . 166 to 168 
 
 Of acceptance, what is . . . 252,265,271 
 
 By operation of law . . 265, 266, 430 to 433 
 
 By act of parties 252, 265 to 268, 272, 434 to 433, 436 to 452 
 By bankruptcy .... 265, 435 
 
 By payment 265, 269, 270, 417 to 423, 450 to 452 
 
 By release of a party, or of parties 269, 270, 430 to 433 
 By taking security .... 266, 267 
 
 What words amount tO' . . . . 252 
 
 What is not a waiver or discharge . . 266 to 271 
 
 Payment, when a good discharge or not 50, 51, 417, 420 to 
 
 423, 450 to 453 
 When giving time a discharge or not 424 to 430, 434, 437 
 Discharge of subsequent parties, effect of . . 434 
 
 Discharge of prior parties, effect of . . 423 
 
 Accommodation parties, what is a discharge of or 
 
 not . . . . 421, 422, 432 to 434 
 
 Compounding of debt, when a discharge or not . 429 
 
 DISHONOR, Effect of negotiation of Bill after 
 DRAWER, how described in Bills 
 Who may be or not 
 
 Infants 
 
 Married women 
 
 Persons non compotes 
 
 Alien friends 
 
 Alien enemies 
 
 Agents 
 
 Administrators and executors 
 
 Guardians 
 
 Trustees 
 
 Partners 
 
 Corporations 
 
 187, noie, 220, 221 
 52,53 
 72 to 106 
 72, 84 to 87, 127 
 90 to 98, 128 
 106 
 72 
 99 to 105 
 72, 76, 77 
 72, 74, 75 
 72, 74, 75 
 72, 74, 75 
 78 
 79 
 
INDEX. 661 
 
 DRAWER, Continued. 
 
 Sectioh 
 
 Lex loci as to 
 
 146, 166 
 
 [See Lex Loci.) 
 
 
 Obligations and duties of . 
 
 107 
 
 DRAWEE, description of, in Bills 
 
 . 58, 59 
 
 Who may be or not . . . 
 
 72 to 106 
 
 Who competent .... 
 
 72 to 79 
 
 Who not . 
 
 72 to 106 
 
 (See Capacity and Competenoy.) 
 
 
 Lex loci as to 
 
 166 to 176 
 
 Obligations of ... . 
 
 113, 116 
 
 E. 
 
 ENEMY, ALIEN. (See Alien Enemy.) 
 
 95 to 105 
 
 EQUITIES, what let in against Holder after Bill dishonored 
 
 187 note, 
 
 
 220, 221 
 
 When set off not admitted . 
 
 220 
 
 EXCHANGE, BILLS OF. (See Bills of Exchange.) 
 EXCUSE, for non-presentment for acceptance, or for payment, 
 
 (&e Presentment foe Acceptance, Pkesentment for Payment.) 
 EXECUTORS AND ADMINISTRATORS, parties to Bills 72, 74, 75 
 When presentment should be made of Bills by or 
 
 to them ...... 404 
 
 When notice of dishonor should be given by or to 
 
 them ...... 74 
 
 EXTINGUISHMENT of rights of Holder of Bills. 
 (See Discharge.) 
 
 FEMES COVERT. (See Married Women.) 
 Parties to Bills 
 
 Whether they may transfer Bills . 
 Cannot bind themselves by acceptance of Bills 
 Payment to, when good or not 
 FICTITIOUS PERSONS, Bills payable to 
 
 Effect of .... 
 FOREIGN BILLS OF EXCHANGE, what are 
 FOREIGN LAW. (& Lex Loci ) . 
 FORGERY OF BILLS. (See Genuineness op Signatures.) 
 
 Effect of forgery of Drawer's name upon Acceptor 412 
 
 Of a prior Indorser's name upon subsequent 
 
 Indorsers . . . .412 
 
 Acceptance admits genuineness of signature of 
 
 Drawer . . . 113,263,264,412,451 
 
 But not of Indorsers . 263, 264, 413, 451 
 
 B. OF EX. 56 
 
 90 to 98 
 
 196 
 
 . 
 
 196 
 
 
 
 230 
 
 
 
 414 
 
 
 56, 
 
 200 
 
 
 56, 
 
 200 
 
 22 to 25 
 
 li 
 
 -9 to 178 
 
662 INDEX. 
 
 FORGERY OF BILLS, Continued. Section 
 
 Effect of forgery upon the rights of Holder against 
 prior Indorsers ..... 451 
 
 Indorsement admits the genuineness of the singna- 
 
 ture of the Drawer and all prior Indorsers 111, 225, 262, 
 
 263, 412, 451, 452 
 When forgery of an indorsement defeats title of 
 Holder ..... 451,452 
 
 FORMS OF BILLp OF EXCHANGE . . 26 to 29 
 
 Of sets of exchange . . . 66,67 
 
 Governed by Lex lod . . . 137, 138 
 
 FRAUD IN BILLS, 
 
 Effect of . ... . . .185 
 
 Between what parties inquirable into . . 185 
 
 What is constructive notice of . . 185, 194 
 
 G. 
 
 GENUINENESS OF SIGNATURE. {See Forgery.) 
 
 When admitted by Acceptor . 113, 262 to 264 
 
 When admitted by Indorser 111, 225, 262, 263, 410 to 412, 
 
 , 451 
 
 Of the Drawer admitted by Acceptor 113, 262 to 264, 412, 
 
 451, 452 
 Of Indorsers not admitted by Acceptor 262, 263, 412, 451, 
 
 452 
 Of all antecedent parties admitted by Indorser III, 225, 
 
 262, 263, 412, 451 
 
 GOVERNMENT, assignment of Bills by or to ... 60 
 
 GRACE, DAYS OF, meaning of . . . .333 
 
 Different in different countries . . 333 to 336 
 
 Lex loci governs as to . . 155, 159, 177, 334 
 
 How computed .... 333 to 337 
 
 When Sundays and holydays included in . 338 to 341 
 
 On what Bills allowed .... 342 
 
 Allowed on Bills payable at or after sight or after date 342 
 
 Not allowed on Bills payable on demand . . 342 
 
 GUARDIANS, parties to Bills .... 72,74,75 
 
 GUARANTY OF BILLS, (See Aval.) . . 453 to 458 
 
 By and in indorsements .... 215 
 
 By and in acceptance .... 254 
 
 Guarantor, when notice to necessary, and what is 
 
 sufficient .... 305, 372, 393 
 
 When non-presentment of Bills excused in cases of 
 
 guaranty ..... 372 
 
 Notice to Guarantors by foreign law ■ . 393 to 395 
 
 Discharge of Guarantor by foreign law 395, 437 to 441 
 
INDEX. 663 
 
 GUARANTY OF BILLS, Continued. Sbctioh 
 
 Effect of, when on face of Bills . . 453 to 458 
 
 Whether negotiable or not . 453 to 458 
 
 Effect of, on separate paper . . . 458 
 
 Whether negotiable or not . . 458, note 
 
 H. 
 
 HOLDER OF BILL BEFORE MATURITY, 
 
 Equitable defences not admissible against, if he is 
 
 a bond fide Holder 14, 187, 188, 189, 191, 193, 417 
 
 For value, who deemed . . . 183, 191, 230 
 
 Set off, when not admitted against . . 330 
 
 Bona fide. Rights of . . . 187, 189, 193 
 
 HOLYDAYS, what days deemed . . .233 
 
 {See Sundays and Holydays.) 
 
 Effect of, as to presentment of Bills . 233, 339, 340 
 
 Effect, as to protest of Bills . . .283 
 
 Effect as to notice of dishonor of Bills . 333, 339, 340 
 
 Effect, as to days of grace . . 337 to 341 
 
 HONOR, acceptance for . . . 121 to 125, 255 to 261 
 
 {See Acceptance sdpra PkotEst.) 
 
 HUSBAND AND WIFE, parties to Bills . . 90 to 98, 138 
 
 (See Makeied Women.) 
 
 Bills to wife, when they belong to husband 90 to 98, 128 
 
 Bills to wife transferable by husband . . 196 
 
 Payment of Bills, when to be to husband . , 414 
 
 INDORSEMENT OF BILLS, {See Transfer of Bills.) 195 to 226 
 Who may indorse . . . . 72 to 106 
 
 {See Capacity and Competency.) 
 Lex loci governs as to . . . 166 to 177 
 
 Lex lod as to blank . . . 156, 172 
 
 Obligations by, what 108 to 111, 119, 120, 157, 199, 200, 
 
 324, 225, 323 
 Blank indorsements, when valid or not 108 to 111, 119, 
 
 120, 202, 206 to 308 
 Blank indorsements governed by Lex loci 156, 172 
 
 Transfer by, when valid'or not . . 195 to 198 
 
 {See Capacity and Competency.) 
 Transfer to, when valid or not, . . . 198 
 
 {See Capacity and Competency.) 
 How affected by Lex loci . . . 171 to 176 
 
 By whom to be made . . . 196, 197 
 
 By married women . . 196 
 
664 
 
 INDEX. 
 
 INDORSEMENT OF BILLS, Continued. Skotion 
 
 By infants . . . .196 
 
 To whom may be made .... 198 
 
 Warrants competency of antecedent parties 110, 225 
 
 Admits genuineness of antecedent signatures 111,-225, 262, 
 
 • 263, 412, 451 
 
 OfBills not negotiable, effect of . . 199,200 
 
 Mode of transfer by . . . 200,201 
 
 Of Bills payable to Bearer . . . 199 
 
 Of Bills payable to fictitious persons . 56, 200 
 
 Of Bills payable to order . . .200 to 203 
 
 OfBills not negotiable . . . .199 
 
 Remedy for omission of indorsement by mistake . 201 
 By partners ..... 197 
 
 By joint Payees not partners . . . 197 
 
 Form of transfer by . . . 204 to 207 
 
 What essential to perfect . . . 204, 205 
 
 Transfer by Allonge .... 204 
 
 Qualified and restrictive indorsements, what are 206, 310,211 
 What are qualified, or restrictive, or not . 211,213 
 
 Conditional, what are . . . 206, 217 
 
 Effect of conditional . . . .217 
 
 Full effect of . . . . 206, 208 
 
 Guaranty on, effect of ... . 215 
 
 Special clauses upon . . . .216 
 
 Successive indorsements, effect of . . . 218 
 
 Indorsement with a clause au besoin . . 219 
 
 Indorsements on Bills left with blanks . . 222 
 
 At what time indorsements may be made . 220 to 223 
 
 Indorsements after Bill due, effect of . 220, 221 
 
 Indorsement after Bill!paid, effect of . . . 223 
 
 Indorsement of sets of Exchange . . . 226 
 
 INDORSEES, who competent or not . . . 72 to 106 
 
 {See Capacity and Competency.) 
 Obligations and duties of 108 to 111, 119, 130, 157, 199, 
 
 200, 234, 335, 333 
 
 INDOBSERS; who competent or not . . . 73 to 106 
 
 (See Capacity and Competency — Indoksement.) 
 
 Obligations and duties of 108 to 111, 119, 130, 200,334, 325 
 What indorsement admits . . . 110,111,325 
 
 Genuineness of antecedent signatures on the Bill 110, 111, 
 
 325 
 Competency of antecedent parties . . 110,111,335 
 
 Indorsement warrants that Indorsee has title to the 
 
 Bill 110,111,325 
 
 Payment of Bill by, when good or not . 422, 433 
 
INDEX. 665 
 
 INDOKSERS, Continued. Skctioh 
 
 Effect of payment by . . 422, 433, 450 to 452 
 
 Of lost Bills . '. 416, 447 to 449 
 
 Payment when signature forged 263, 364, 413, 
 
 450 to 452 
 
 INFANTS, parties to Bills . . . 81 to 87, 127, 330 
 
 (See Capacity and Compktkncv.) 
 
 Bills transferable by, and to . . 137, 197 
 
 Cannot bind themselves by acceptance . . 230 
 
 Payment to, when good .... 414 
 
 INLAND BILLS, what are . . . 22 to 35, 464, 465 
 
 Origin of . . . . . . 466 
 
 Origin of in England .... 467 
 
 Need not be protested .... 468 
 
 Effect of protest ..... 468 
 
 Payment, when to be demanded . . . 469 
 
 Entitled to days of grace, when payable at or after 
 sight or date .... 469, 470 
 
 But not if payable on demand . . , 470 
 
 At what time payment should be demanded of Bills 
 
 payable on demand . . . 470 to 475 
 
 What is an excuse, or not, for want of due demand 
 of payment .... 476 to 478 
 
 Indulgence of time to parties on Bills, effect of 425, 430 
 INSANE PERSONS, parties to Bills . . . .107 
 
 INSOLVENCY, (See Bankruptcy and Insolvency.) 
 
 INTEREST, Lex loci governs as to . 148, 149, 153, 154, 391 
 
 INTERPRETATION OF CONTRACTS, 
 
 Governed by Lex loci . . . 143 to 152 
 
 As to meaning of words . . . 143 to 152 
 
 Where contracts are to be performed . . 146 
 
 ILLEGAL CONTRACTS, what are . . . 186, 187 
 
 JOINT PAYEES OF BILLS, 
 
 How transfer to be made by . . .197 
 
 JOINT PARTIES TO BILLS, 
 
 Effect of release to one of them . 430 to 433, 446 
 
 L. 
 LACHES, 
 
 In non-presentment of Bills 
 {See Non-presentment of Bills fob Acceptance and for 
 Payment.) 
 In not making protest on dishonor 
 (See Protest.) 
 56* 
 
666 INDEX. 
 
 LACHES, Continued. Section 
 
 In not giving notice of dishonor 
 (See Notice.) 
 LAWS OF EXCHANGE, founded in usage ... 20 
 
 LETTERS OF CREDIT, . . . . 459 to 464 
 
 Nature and effect of ... . 459 
 
 General and special . . . 459, 460 
 
 Whether negotiable or not . . 460 to 462 
 
 LIMITATIONS, STATUTE OF, 
 
 Lex loci governs as to . . . . 160 
 
 LEX LOCI, operation of, on Bills . . .129 to 195 
 
 Contracts, by what law governed 129, 130, 132 to 177 
 
 Rule which governs, as to validity of contracts 131 to 136, 
 
 147 to 152 
 As to formalities of contracts 137, 138 
 
 As to obligations of contracts 139 to 143 
 
 As to interpretation of contracts 139, 140, 
 
 143 to 152 
 As to interpretation of terms . 144 
 
 Illegal contracts . . 133 to 136 
 
 Bills of Exchange, by what law governed 130, 132, 133, 
 136, 138, 276, 278, 285, 296, 391 
 As to Drawer . . 146, 166, 391 
 
 As to Indorser . . 166 to 176, 391 
 
 As to Acceptor . . 158, 164, 391 
 
 As to indorsements . 167 to 171, 391 
 
 As to interest and usury . . 148 
 
 As to damages . . . 153, 154 
 
 As to days of grace 155, 177, 332 to 341 
 
 As to presentment and protest 157, 176 
 
 As to blank indotsements . 156, 172 
 
 As to equitable defences . . 156 
 
 As to acceptances, absolute or not 164 
 
 As to discharges of parties . 161 to 168 
 
 As to transferability . 169 to 173 
 
 As to payment of Bills . . 163 
 
 As to stamps . . 138, 159 
 
 As to forms of instruments . . 137, 138 
 
 As to currency stated in Bills 151, 152 
 
 As to interest and usury . 148, 149, 391 
 As to protest 138, 276, 278, 285, 296 
 
 As to presentment and acceptance 157, 164, 233 
 As to presentment for payment 156, 176, 366 
 As, to notice of dishonor 157, 164, 176, 177, 
 
 296, 366, 391 
 As to remedies . . . 160, 172 
 
INDEX, 
 
 667 
 
 LEX LOCI, Continued. Section 
 
 As to statute of limitations . 160, 172 
 LOSS OF BILLS, 
 
 Proceedings on .... 279, 348 
 
 No excuse for want of protest . . . 279 
 
 No excuse for non-presentment for acceptance 279 
 
 Nor for non-presentment for payment . . 348 
 In case of, whether Acceptor, or Indorser, or 
 
 Drawer, compellable at law to pay Bills 416, 447 to 449 
 
 M. 
 
 MAIL, notice by, when good or not "■ . 288, 289, 297 to 300, 382 
 
 MARRIED WOMEN, parties to Bills . . 90 to 98, 196 
 
 Bills payable to, transferable by husband . 90 to 98, 196 
 
 Cannot bind themselves by acceptance of ^^ills . 230 
 
 When payment to, good or not 
 
 MATURITY OF BILL, when it becomes due 
 
 MERGER, extinguishment of Bills by 
 
 MESSENGER, SPECIAL, when notice may be by 
 
 MONTPI IN BILLS, 
 
 Means calendar month 
 
 MONEY, Bills must be payable in money alone 
 Description of, in Bills 
 Description of foreign coin 
 How sum to be paid stated in Bills 
 Payment of Bills should be in money 
 
 N. 
 
 . 414 
 
 . 329 
 
 443,-443 a 
 
 295, 300 
 
 143, 330 
 
 42 to 45 
 
 43,44 
 
 43, 44 
 
 42 to 45 
 
 . 364 
 
 NEGOTIABILITY OF BILL, . . . 60 to 63 
 
 When Bills negotiable or not . . . 60 to 62 
 
 Whether negotiable, when sealed . . .61 
 
 Bills not negotiable are assignable . . 199, 200 
 
 When it ceases ..... 223 
 
 NON-ACCEPTANCE, proceedings on . . . 272 to 322 
 
 {See Bills of Exchange.) 
 NON-COMPOTES, parties to Bills . . . . 106 
 
 NON-EXISTING BILLS, whether acceptance can be of . 249 
 
 NON-PAYMENT, proceedings on ... 378 to 409 
 
 (See Bills of Exchange.) 
 
 NOTARY PUBLIC, protests by . . • . .276 
 
 How duties performed by . . . ' . 276 
 
 NOTICE OF DISHONOR, ... . 284 to 322 
 
 Governed, by Lex Loci 157, 166, 176, 177, 296, 366- 
 
 As to Drawer, by Lecc Loci of Drawer 157, 166 
 
 As to Indorser, by Lex Loci of indorsement 157, 166 
 
 As to Acceptor, by Lex Loci of acceptance 158, 164 
 
668 INDEX. 
 
 1 
 
 NOTICE OF DISHONOR, Continued. Section 
 
 Notice of defective title to Bills, what is, and effect 
 of . . . . . . 184 to 194 
 
 Notice of want or failure of consideration in Bills, 
 effect of, and between what parties . 184 to 194 
 
 {See Consideration of Bills.) 
 On presentment for acceptance . . 284 to 332 
 
 Within what time . . 283 to 292 
 
 In what mode . 286 to 288, 300 
 
 When verbal, and when in writing 291, 297, 300 
 When personal, or at domicil or place 
 
 of business . . 291, 297, 300 
 
 When by mail . 288, 289, 297, 298, 300 
 
 When by packet . . 287, 298 
 
 How sent abroad . . 287, 298 
 
 Must be given on business days and hours . 293, 308, 309 
 
 Effect of on Sundays or holydays . . 293, 308, 309 
 
 To whom to be given . .291, 292, 303 to 305 
 
 To bankrapt, when . ^ . . 305 
 
 To partners . . , 299, 305 
 
 To joint parties not partners . . 299 
 
 To Assignees of bankrupts . . 305 
 
 To Agent, or Clerk, or Servant 300, 305 
 
 To Executors and Administrators . 74 
 
 To Guarantors . . . 305, 372, 393 
 
 By whom notice to be given . . . 291, 392 
 
 By Agent, or Banker, or Servant . 293 
 
 By special messenger . . 295, 300 
 
 By successive parties on Bills . 294 
 
 At, and to what place to be given or sent 291, 297, 298 
 
 What is to be done, when residence of party not known 299 
 
 Mode of notice ... 286 to 288, 300 
 
 Form of notice . . ■ .301, 302 
 
 Want of notice, what will excuse . 275, 281 to 320, 392 
 
 Accident, and irresistible force . ; 308 
 
 Absconding of party . . . 308 
 
 Residence of party unknown . . 299 
 
 Want of funds of Drawer in hands of 
 
 Drawee, excuses as to Drawer 311 to 316 
 
 But not as to Indorsers . 314 
 
 Taking security of Bill, when it excuses 316 
 
 Agreement to waive notice . 318 to 320 
 
 Actual waiver of notice . . 320 
 
 What are acts of waiver . . 320 
 
 Promise to pay after knowledge of . 320 
 
 Accommodation parties, when excused . 310 
 
INDEX. 
 
 669 
 
 NOTICE OF DISHONOR, Continued. 
 
 What is not an excuse for 
 Rights of Holder, on due protest and notice 
 non-acceptance . . . , 
 
 Right to immediate suit and 
 Notice of non-payment 
 
 When necessary 
 Waiver of notice 
 What is reasonable . 
 Within what time 
 Personal notice, when 
 By mail, when 
 By packet-ship 
 By whom 
 
 By Indorsers successively 
 To whom to be given 
 Form 9f notice 
 Notice in cases of guaranty 
 NOVATION IN FOREIGN LAW, what . 
 Effect of 
 
 Section 
 318 to 320, 393 
 
 for 
 
 3S1, 322, 366 
 321, 322, 366 
 
 381 to 395 
 381 
 
 320, 371 
 
 382 to 385 
 382 
 382 
 382 
 383 
 
 385 to 388 
 384, 385 
 389 
 390 
 305, 372, 393 
 441 
 441 
 
 O. 
 
 ORDER, Bills payable to, effect of 
 
 Words of, when essential to negotiability 
 OVER DUE, effect of indorsement of Bill 
 
 56,57 
 
 56, 57 
 
 220, 221 
 
 PAR OF EXCHANGE, what is . . . . 30 
 
 PARTIES TO BILLS, how described . . . 52 to 59 
 
 Drawer ..... 35, 52, 53 
 
 Payee . . . . . 35, 54 to 57 
 
 Drawee ..... 35, 58, 59 
 
 PART PAYMENT OF BILLS, effect of . . . 436 
 
 PARTNERS, parties to Bills, when and how far liable 72, 74, 75, 197 
 
 Indorsements by . . . . . 107 
 
 Notice to . . . . . . 305 
 
 PAYEE, how described . . . . . 54 to 57 
 
 Bills payable to order . . . , 56, 57 
 
 Bills payable to bearer . . . . 56, 57 
 
 , Who competent or not . . . 72 to 106 
 
 (Sse Capacity and Competency.) 
 
 PAYMENT OF BILLS, place of, when and how stated in Bill 40, 41 
 
 Place of, what is the proper place . . 48, 49 
 
 Presentment for, where and when . . 48, 49. 
 
 Mode of payment of Bills . ■ . .46,47 
 
670 
 
 INDEX. 
 
 PAYMENT OF BILLS, Continued. 
 
 Time of payment . 
 
 Effect of payment . 
 
 What and when by Acceptor good 
 
 What and when by Indorser good 
 
 In cases of forged signatures 
 
 In cases of bankruptcy 
 
 In cases of death .... 
 
 In cases of defective title 
 
 In cases of agency .... 
 
 In cases of minors and married women 
 
 Possession, when sufficient to justify payment 
 
 Payment, in what currency made 
 
 Payment, currency is depreciated . 
 
 Payment in goods or by checlc 
 
 When bill or note received in payment 
 
 Part payment, effect of . 
 
 Rights of Acceptor on payment 
 
 Rights of Indorser on payment 
 
 Foreign law, as to payment 
 
 By novation .... 
 By compensation 
 
 By confusion .... 
 By release of joint debtor 
 
 Payment of lost Bills 
 
 Whether Acceptor or other parties bound at 
 law to pay lost Bills 
 PENCIL, Bills and signatures may be in 
 PLACE OF DRAWirfG BILLS. {See Bills of Exchange.) 
 
 When necessary to be stated 
 
 Of payment of Bills ..... 
 
 Of presentment for acceptance 
 
 Of presentment for payment . 
 
 Bills drawn in one place payable in another . 
 POSSESSION OF BILLS, 
 
 Prima facie evidence of title 
 POST, {See Mail.) 
 
 Notice by . . . 288, 289, 297 to 300, 382 
 
 POUND, value of in American currency 
 PRESENTMENT OF BILLS FOR ACCEPTANCE, 
 {See Bills of Exchange.) 
 
 Lex loci governs, as to 
 
 On what Bills necessary or not 
 
 By whom and to whom 
 I At and within what time 
 
 At what place 
 
 Section 
 
 50, 51, 417 
 
 410, 422, 423, 450 to 453 
 
 . 410 to 412, 450 
 
 . 432, 423 
 
 ■ . 412, 450 to 452 
 
 413 
 
 413 
 
 413 
 
 413 
 
 413 
 
 415, 416 
 
 418,419 
 
 418 
 
 419 
 
 419, 441 
 436 
 
 420, 421 
 422, 423 
 
 437 to 446 
 441 
 440 
 
 443 to 445 
 446 
 
 447 to 449 
 
 447 to 449 
 33, 34, 53 
 
 , 40, 41 
 
 48, 49 
 
 . 335, 336 
 
 351, 352 
 
 48,49 
 
 415, 416 
 
 237 to 238 
 
 157, 176 
 
 238 
 
 . 329, 346 
 
 . 231,232 
 
 . 235,336 
 
INDEX. 671 
 
 Section 
 PRESENTMENT OP BILLS FOR AGCEPTANCE, Continued. 
 
 Of Bills au besoin ..... 237 
 
 What will excuse non-presentment for acceptance 234, 326, 
 
 327, 365, 375 to 377 
 What not . . . 230, 327, 346, 347 
 
 What, as to Drawer .... 234, 327 
 What, as to Inijorser .... 234, 327 
 In cases of accommodation parties . . 310 
 
 Proceedings on non-acceptance . . 272 to 323 
 
 {See Bills of Exchange.) 
 Protest for non-acceptance . . 275 to 285, 296 
 
 {See Protest.) 
 Notice of non-acceptance . . 284 to 309, 360 
 
 (See Notice.) 
 PRESENTMENT FOR PAYMENT. (See Bills of Exchange.) 
 
 At what time . . . 324, 325, 344, 345 
 
 At maturity of Bill . . 324, 325, 328, 344, 345 
 
 At what time different Bills payable . . 325 
 
 Bills payable at or after sight . . . 325 
 
 Bills payable after date .... 325, 329 
 Bills payable on demand .... 325 
 
 At what hours of day .... 328,349 
 
 When is a Bill at maturity . . . 329 
 
 How time computed .... 329, 330 
 
 Day of date and acceptance excluded in computing time 329 
 Month means calendar month . . . 143, 330 
 
 Old Style and New Style, difference of . . 331 
 
 Usance, meaning of . . . 50, 144, 332 
 
 Usance different in different countries . . 333 
 
 Days of grace, what are . 155, 159, 177, 333 to 336 
 
 Days of grace different in different countries 333 to 336 
 
 Days of grace, governed by Lex loci 155, 159, 177, 134, 
 
 135 
 How days of grace computed . 335, 336, 338 to 341 
 
 Days of grace computed exclusive of the other days 333 
 
 Days of grace counted including Sundays and holydays 337 
 Effect of last day of grace being a Sunday or holy- ' 
 
 day .... . 338 to 341 
 
 Days of grace on what Bills allowed . . 342, 343 
 
 on Bills payable after date . . 342, 343 
 
 on Bills payable at or after sight . 342, 343 
 not allowed on Bills payable on demand 343 
 What will excuse want of due presentment for pay- 
 ment . . . 326, 327, 365 to 367 
 Sudden illness .... 327 
 Accident and irresistible force . 326, 36 
 
672 
 
 INDEX. 
 
 PRESENTMENT FOR PAYMENT, Continued. "Sectio-n 
 
 Political events and war . . 327,365 
 
 Absconding of Acceptor . . 327, 346 
 
 Acceptor cannot be found . . . 327 
 
 Want of funds by Acceptor belonging to 
 
 Drawer, when . 329, 367 to 369 
 
 Not as to Indorsers . . 327, 367 
 
 ^ New promise after notice of non-presentment 373 
 
 What amounts lo new promise . . 373 
 
 In cases of accommodation parties 370, 376 
 
 Agreement and waiver of presentment . 371 
 In cases of collateral security . 372, 374 
 
 In cases of guaranty . . . 372 
 
 What will not excuse want of presentment for pay- 
 ment . . 326, 346, 347, 375, 376 
 Bankruptcy and insolvency of Acceptor 
 
 will not . . 326, 346, 347, 362, 375 
 
 Death of Acceptor will not . 326,346,375 
 
 Death of Drawer ,and Indorser, his admin- 
 istrator. .... 377 
 Receipt of Bill near time of its falling due 326 
 Effect of want of due presentment . . . 344 
 In case of accommodation parties . 376 
 In cases of Bills signed and indorsed by 
 two firms, where some are parties in 
 each firm .... 377 
 No excuse, that party has knowledge of 
 
 non-payment, but he must have notice 377 
 
 To Acceptor supra protest . . 344 
 
 To whom presentment to be made 346 to 350, 362 
 
 In case of bankruptcy . 346, 347, 362 
 
 In case of death . . 346,347,362 
 
 In case of Acceptor being abroad or 
 
 not being found . 346, 352, 362 
 
 In case of death of partner . 346, 362 
 
 In case of loss of Bill . . 348 
 
 In case of acceptance supra protest . 363 
 
 Whether presentment need be personal or not 350 
 
 Effect of Acceptor not being at home . 350 
 
 At what place . . . 351, 352 
 
 When at domicil or place of business 351 
 
 In case of change of domicil 351 
 
 In case dwelling-house is shut up . 352 
 
 Or Acceptor cannot be found . 352 
 
 In case Bill be payable at another 
 
 place . . . 353, 357, 359 
 
INDEX. 673 
 
 PRESENTMENT FOR PAYMENT, Continued. Section 
 
 In case of a Bill payable at either of 
 
 two places .... 354 
 
 In case of a Bill payable at a banker's 355 to 
 
 357, 359 to 362 
 In ease of a Bill payable, by or to 
 
 Jews, mode of presentment in Germany 358 
 By whom to be made . 3C0 to 363 
 
 By Holder or his agent . . 360 
 
 By executor or administrator, if 
 
 Holder dead . . 360 
 
 By husband, if Holder marries . 360 
 
 Mode of presentment . . . . 364 
 
 When it may be verbal or in writing . 364 
 
 Payment in money should be required . 364 
 
 When presentment for payment not necessary . 369 
 Not in case of protest for non-acceptance . 366 
 Lex loci governs as to . . . 366 
 
 PRIVILEGES OF BILLS, .... 14 
 
 PROMISE TO ACCEPT, 
 
 When an acceptance or not . . 246 to 251 
 
 Promise to pay, when a waiver of due presentment 
 
 and notice of dishonor . . . 266 to 272 
 
 PROTEST OP BILLS, meaning of . . . .276 
 
 By whom made ..... 276 
 
 Lexloci governs, as to 138, 176, 177, 276, 278, 283, 285, 296 
 Necessity of . . . 176, 272 to 274 
 
 Required of all Foreign Bills . . 275,281 
 
 Not required of Inland Bills . . .281 
 
 Form of ...... 277 
 
 By whom and how made .... 276 
 
 At what time made . . . 278, 283 
 
 Place of protest ..... 282 
 
 What will excuse want of . . . . 280 
 
 Accident, casualty, irresistible force . 280, 283 
 
 Want of funds in hands of Drawee, as to Drawer 280 
 But not as to Indorsers . . . .314 
 
 What will not excuse want of . . . 279 
 
 Bankruptcy or absconding of Drawee will not 
 
 excuse want of . . . . 279 
 
 Nor loss of Bill . . . . .279 
 
 R. 
 
 RATE OF EXCHANGE, what is . . . .31 
 
 RE-EXCHANGE, 399 to 403 
 
 Meaning of .... 400, 401 
 
 B. OF EX. 57 
 
674 
 
 INDEX. 
 
 RE-EXCHANGE, Continued. Section 
 
 Whether payable by Acceptor . . . 398 
 
 When and what payable by Drawer and Indorsers 399 to 401 
 
 Circuitous, when allowed 
 • In France and foreign countries 
 When fixed damages in lieu of 
 RELEASE, effect of . " . 
 
 Of one or all Acceptors 
 ■ Of one or all Drawers or Indorsers 
 When not a discharge of an antecedent party on a 
 Bill . . . ■ . . .428 
 
 RESERVATIONS AND RESTRICTIONS on Bills, effect of 68, 69 
 
 402, 403 
 
 404 to 406 
 
 407, 408 
 
 . 263, 269, 270 
 
 269, 370, 430 to 433 
 
 430 to 440 
 
 > . *. 
 
 61 
 
 266 to 263 
 
 266 to 268 
 
 n as collateral 
 
 
 372, 
 
 393 
 
 • ■ • 
 
 420 
 
 . 66, 67, 
 
 226 
 
 . 66, 67, 
 
 226 
 
 51, 
 
 342 
 
 
 346 
 
 325 to 344 
 
 SEALED BILL, not negotiable . 
 SECURITY, taking, when a discharge or not 
 When of an acceptance 
 Effect of Bill being originally taken 
 security . 
 SET-OFF, when not good against Holder 
 SETS OF EXCHANGE, whaf . 
 
 Use and form of 
 SIGHT, Bills payable at or after 
 Grace allowed on . 
 When due . . . 
 
 SIGNATURES OF PARTIES TO BILLS, 
 By initials or marks, whether good 
 
 When and what, admitted by Acceptor 113, 262 to 264, 
 
 412, 451, 452 
 
 When and what, by Indorsers 110, 225, 412, 451, 452 
 
 (See Genuineness of Signatures.) 
 
 STAMPS, Lex loci respecting .... 138, 159 
 
 STATUTE OF LIMITATIONS, Lex loci governs, as to . 160 
 
 STYLE, Old, what 331 
 
 New, what ...... 331 
 
 How time computed on Bills drawn in country using 
 
 one style, and on country using anothe^ . . 331 
 
 SUNDAYS AND HOLYDAYS, 
 
 Effect of, in computing time when Bills due . 337 
 
 Effect, as to days of grace . . 333 to 341 
 
 Effect of, as to^ presentment of Bills . . 233 
 
 Effect of, as to notice of dishonor . . 293,308,309 
 
 SUPRA PROTEST, acceptance . . . .125 
 
 SURETY ON BILLS, when discharged or not by act of Holder 423, 
 
 430 to 432 
 When discharged under foreign law 395, 437 to 441 
 
INDEX. 
 
 675 
 
 SUSPICIOUS CIRCUMSTANCES, Sectios 
 
 Effect of Holder's receiving Bills under . 199 
 
 TIME, HOW COMPUTED ON BILLS, 
 
 Exclusive of date and sight . . . 329 
 
 Months are calendar months ... 3 
 
 TITLE TO BILLS, 
 
 What is constructive notice of defect in . . 194 
 
 Effect of defect in ..... 194 
 
 TITLE OP HOLDER OF BILLS, 
 
 When defective he cannot recover . . . 413 
 
 Possession prima yacie evidence of . 415,416 
 
 TRANSFER OF BILLS 195 to 226 
 
 Who may transfer or not . 72 to 106, 195, 197 
 
 (r&e Capacity and Competency.) 
 
 To whom transfer may be made . . . 196 
 
 Mode of transfer .... 199,200 
 
 Of Bills payable to Bearer . . 199 
 
 Effect of transfer of Bill payable to Bearer 111, 
 
 199, 200 
 
 Of Bills payable to fictitious persons . 66, 200 
 
 Of Bills payable to order 201 to 204, 207, 210 
 
 Of Bills not negotiable . . 199, 200 
 
 Omission of indorsement, how remediable . . 201 
 
 Transfer by partners . . . 197 
 
 Transfer by persons not partners . . . 197 
 
 Transfer of Bills drawn with blanks . . 222 
 
 Transfer by blank indorsements . 202, 206 to 208, 222 
 
 Form of transfer . . . . 204 to 207 
 
 Transfer on Allonge . ■ . 204 
 
 Transfer by full indorsement . 206, 208 
 
 Transfer by qualified and restrictive indorsement 206, 210, 
 
 211 
 What transfers are restrictive or not 211, 213 to 215 
 
 Conditional transfers 206, 217 
 
 Guaranty on indorsements, effect of . . 215 
 
 Special clauses on indorsements . . . 216 
 
 Transfer with clause aw Jesom . . . 219 
 
 Successive transfers'by indorsement, effect of . 218 
 At what time transfer may be made . 220 to 223 
 
 Effect of transfer after Bill is due . . 220, 221 
 
 Effect of transfer after Bill is paid . . . 223 
 
 Transfer of sets of Exchange . . . 226 
 
 TRUSTEES, parties to Bills .* . . 72,74,75,197 
 
 Bills transferable by and to . . .197 
 
676 INDEX. 
 
 u. 
 
 Section 
 USAGE OP MERCHANTS, origia of Bills of Exchange in 5 to 20 
 
 Law of Exchange legulated by . . .20 
 
 USANCE, meaning of ..... 50,144,332 
 
 Different in different countries . . . 332 
 
 USURY, Lex loci governs as to . . . 148 
 
 V. 
 
 VALUE RECEIVED, effect of these words ... 63 
 
 W. 
 
 WAIVER OP RIGHTS ON BILLS, 
 
 {See Bills op Exchange.) 
 
 Of acceptance, what is . . 252, 262 to 271 
 
 ■\Vhat is not . . . 266 to 271 
 
 Of notice, what is ornot . . . 320,371 
 
 Of due presentment, what is or not . 371,373 
 
 WRITING, Bills must be in writing or pencil . - . 33, 34 
 
 On what parts of paper to be written . . 34 
 
KF 958 S88 1853 
 
 -2»estaries_on_thelawLof 
 e^tpiange, loreign and inland" 
 
,1'M