If the bill be delivered by the drawer upon the terms of the price being paid the next day, and the purchaser without paying the price, deliver it to the payee, the drawer may as against the payee set up the defence of no consideration, if the person to whom the drawer delivered the bill was agent of the payee and received the bill in that character. Puget de Bras v. Forbes &c. 1 Esp. 117. But such defence will not avail where the purchaser was not agent for the payee, and the drawer has placed the bill in the purchaser's hands with a controlling power over it, giving him credit for a certain time for the purchase money; and the purchaser has delivered it to the payee, who received it bona fide and for value. Under such circumstances the payee acquires a good title to the bill, and may sue the drawer upon it although he has never received value for it. Munroe &c. v. Bordier &c. 8 Man. Grang. & Scott 872, 65 Eng. Com. Law Rep. 872.

4. Nature of drawer's contract.

The contract of the drawer is, in the case of a bill made payable after sight, that the drawee shall, on the bill being presented to him in a reasonable time from the date, accept the same, and having so accepted it, shall pay it when duly presented for payment according to its tenour; and in the case of a bill payable after date, that the drawee shall accept it if it is presented to him before the time of payment, and having so accepted it, shall pay it when it is in due course presented for payment; or if it is not presented for acceptance, then that he shall pay it when duly presented for payment. Parke, B., 9 M. & W. 514, 15.

CHAPTER XVII.

BY WHOM, TO WHOM AND WHEN BILL SHOULD BE PRESENTED FOR ACCEPTANCE; IF ACCEPTANCE BE REFUSED, WHAT ARE THE DUTIES, RIGHTS AND LIABILITIES OF THE PARTIES.

1. When bill must be presented for acceptance.

In some countries, as in France, the times within which a foreign bill payable at sight, or any certain time after, must be presented for acceptance, are fixed by positive law according VOL. II.-10

to the place where, and the place on which the bill is drawn. Code de Commerce, liv. 1, tit. 8, § 11. But there is no such law in England; and in the absence of any such positive regulation, or of any general usage or course of trade, no other rule is laid down as the limit within which the bill must be forwarded to its destination than that it must take place within a reasonable time. Muilman v. D'Eguino, 2 H. Bl. 565. This rule has been adopted in New York. Robinson v. Ames,

20 Johns. 150.

In respect to such a bill, 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 court upon the particular circumstances of each case. S. C.; Mellish v. Rawdon, 9 Bingh. 416, 23 Eng. Com. Law Rep. 322. A bill payable at a given time after date need not be presented for acceptance, but may, without any previous presentment, be demanded when due. Townsley v. Sumsall, 2 Peters 179; Brown v. Barry, 3 Dall. 365; Clarke v. Russell, Id. 415. It may however be presented for acceptance. Such presentment may be made at any time before it is due. That a bill payable at six months, was not presented for acceptance till five months after date, is not an objection that will avail an endorser. Oxford Bank v. Davis, 4 Cush. 188.

2. If bill be presented and acceptance refused, notice to be given of refusal; effect of failure to give notice.

If the bill be presented for acceptance, and there be a refusal to accept it, notice of such refusal ought to be given by the then holder; and if there be a failure to give such notice, then as between the drawer and such holder, the drawer will be discharged. In this respect there is no difference between a foreign and an inland bill. Blesard v. Hirst &c. 5 Burr. 2670; Goodall &c. v. Dolley, 1 T. R. 712; 9 M. & W. 512; Bank of Washington v. Triplett &c. 1 Peters 35; Bank of Tennessee v. Smith, 9 B. Monroe 610. Though afterwards accepted for honour, there must be the same notice to the previous parties of the non-acceptance, as if they had not accepted for honour. Lenox v. Everett, 10 Mass. 1; Higgins v. Morrison's ex'or, 4 Dana 101.

But suppose the bill comes to the hands of a bona fide endorsee for value, ignorant of the refusal to accept, shall a party, who as against the previous holder was discharged by his laches, be held liable to such endorsee? He will not, if the bill continued up to the time of its becoming due, in the hands of the

party who was holder at the time of the failure to give notice. Roscow v. Hardy, 2 Camp. 458, 12 East 434. He will be liable to such bona fide endorsee for value if the bill was endorsed to him before it became due. O'Keefe v. Dunn &c. 6 Taunt. 305, 1 Eng. Com. Law Rep. 392; S. C. 5 M. & S. 282. If there be evidence of notarial marks on the bill, whatever may be their effect against others, (Smith v. Roach's ex'or, 7 B. Monroe 18,) they will as against such endorsee only weigh as rendering it less likely that the bill should have been taken in perfect good faith. Goodman v. Harvey &c. 4 Adol.

& El. 870, 31 Eng. Com. Law Rep. 212.

3. When bill is presented for acceptance, by whom and to whom the presentment must be.

The presentment for acceptance should be by a person entitled to call for payment if the bill were then due. Walker &c. v. Macdonald, 2 W. H. & G. 527. Where persons of the name of Farley, were parties to the bill, and having a good title to it, endorsed it, but spelt one of the names Farelly, it was considered that they, though not spelling their names correctly, did, by their endorsement, pass their interest in the bill; when the holder to whom their interest had passed, presented the bill to the drawer's banker, no objection to the wrong spelling was made; and such objection was not allowed to avail afterwards. Leonard v. Wilson, 1 C. & M. 588.

In a case in Virginia a motion was made to instruct the jury that the notarial presentment of a foreign bill for acceptance, and the notarial demand of acceptance of such a bill, must be made by the notary in person, and that the presentment thereof, or demand of acceptance, made by a clerk, is not sufficient to authorize the notary to protest the bill for non-acceptance, he having personally neither seen nor sought for the drawee. But the court refused to give the instruction so asked. In the court of appeals, Judge Cabell expressed the opinion that the court below erred in refusing to give the instruction. But Judge Brockenbrough thought it was properly refused and so did the president. It is proved," he says, "that there is a custom at Liverpool that bills may be demanded by a notary's clerk. I do not see why this may not be, at least, with this obvious qualification, that though the notary's authorized clerk may present the bill for acceptance, and though the refusal to pay him upon demand may justify a protest by the notary, yet the notary's certificate is, in such case, no evidence whatever of the facts of presentment and refusal,

but they must be proved by the oaths of witnesses as other facts are." Nelson v. Fotterall, 7 Leigh 179.

To justify the protest for non-acceptance, the presentment for acceptance should be to the drawee or his authorized agent. In the case just cited, the protest exhibited by the plaintiff, as proof of the presentment and dishonour of the bill, stated that the presentment was made to a clerk in the counting house of the drawee and that he refused to accept it. The president and Judge Cabell were of opinion, that the defendant was entitled to an instruction that such a presentment was not sufficient to justify a protest, unless the clerk was authorized to accept or refuse.

5. As to the necessity of protest, distinction between a foreign and an inland bill.

As to the necessity of protest, there is a difference between an inland and a foreign bill. The statute of Mississippi is taken substantially from the 9 & 10 W. 3, c. 17, amended by 3 & 4 Ann, c. 9, under which it has always been held by the English courts that the action at common law was not thereby taken away, but that an additional remedy was given by which the holder could recover interest and damages on an inland bill in cases where he was not entitled to them at common law; and that if he chose to waive the benefit of the statute, he might still recover the amount due on the bill by giving the customary proof of default and notice. Bailey v. Dozier, 6 How. 29; Wanger v. Tupper &c. 8 How. 234.

6. Bill drawn in one state on a person in another is a foreign bill.

The former statute of Virginia, declaring that certain bills shall be considered as inland bills, has produced some confusion, since it made a bill drawn by a person residing in this state, on a person in the United States, an inland bill, (1 R. C. 1819, p. 483, § 1,) while, according to the decisions of the courts, a bill drawn in another state on a house in Virginia is a foreign bill, unless the law of the state in which the bill is drawn has expressly enacted otherwise. Brown & Sons v. Ferguson, 4 Leigh 37. In the Code of 1849, so much of the statute of 1819 as declares that certain bills shall be considered inland bills was intentionally omitted; and the rule left as established by the supreme court of the United States and the courts of various states, to wit: that a bill drawn in one

state of the Union upon a person living in another is to be treated as a foreign bill. Buckner v. Finley &c. 2 Peters 586; Dickens v. Beal, 10 Id. 379; Bank of U. S. v. Daniel &c. 12 Id. 32; Holliday v. McDougall &c. 20 Wend. 81; Chenowith& Co. v. Chamberlin, 6 B. Monroe 60; Story on Bills, p. 556, 7, § 465.

7. When acceptance is refused of foreign bill, there must be protest as well as notice; at what time protest may be made.

When a foreign bill is presented to the drawees for acceptance, and they refuse to accept, it is necessary, in order to entitle the holder to recover against the drawer or endorser, that there should be not only a notice of, but also a protest for non-acceptance. Thompson v. Cumming, 2 Leigh 321. And therefore where a bill is payable sixty days after sight, and, upon sight thereof, the drawees refuse to accept, although at the expiration of the sixty days it should be again presented for payment and payment should be refused, and there should then be protest for non-payment and notice thereof, this will not be sufficient to charge the endorser. Proof that the bill was duly protested for non-acceptance, is indispensable. S. C.

In a case in Virginia, (Nelson v. Fotterall, cited ante, p. 147-8) it was insisted that it was the duty of the holders of the bill at Liverpool, on Tuesday the 27th of March 1827, when the drawee refused acceptance of the same, to put it in the hands of a notary public for protest, without waiting till the next day; unless prevented by inevitable accident. It appeared in the case that fruitless attempts were made by the clerk of the holder to find the drawee at his counting room on Saturday the 24th of March, (the very day when the bill arrived at Liverpool,) and on Monday the 26th; that on the 27th, diligent search was made by the holder himself at the exchange, the brokers' offices, and the news room, at which places the drawee did most of the little business which he transacted; and that, in consequence of these searches and enquiries, the drawee at length made his appearance at the house of the holder, when the bill was presented to him and he refused to accept. The protest for non-acceptance was on the 28th of March 1827. It was the opinion of the circuit court that the evidence ought to be submitted to the jury for them to determine, whether the business hours of the day, on which acceptance of the bill was refused, had not then elapsed, or so nearly elapsed that the bill could not be put in the hands of the notary on that day within the business hours thereof, and, if the