Sect. 1. ceptance; and 1st, CHAPTER V.* OF PRESENTMENT OF A BILL FOR ACCEPTANCE-AC- ON delivery of a bill of exchange to the payee, or any other person who becomes holder by transfer, it is in some cases necessary, and in all advisable, to present it for acceptance. On such presentment, the drawee either complies with the drawer's request by accepting the bill, or refuses to do so: in which latter case it is in general incumbent on the holder to give notice to the various other persons who became parties to the bill antecedently to himself; after which any person not originally a party, may accept it supra protest for the honour of the drawer or indorsers; and in some cases the holder may protest a bill for better security. In treating of each of these matters in their natural order, it will be necessary to consider, First, when a presentment for acceptance is necessary, and at what time, and in what manner it must be made: Secondly, by whom, at what time, and in what manner, an acceptance may be made, and the obligation it imposes on the acceptor: Thirdly, the conduct which the holder must pursue, in case of a refusal to accept: Fourthly, the protest for better security, and Lastly, of acceptances supra protest. When a bill is drawn payable within a specified time after sight, it is Of present-necessary, in order to fix the period when it is to be paid, to present it ment for ac- to the drawee for acceptance; but in other cases it is not incumbent on the holder to present the bill before it is due ; and in Bristol, it is when ne- said, that the practice is not to present for acceptance or to accept. It is, however, certainly most advisable in all cases to endeavour to get [159] the bill accepted, as by that means the holder obtains the additional security of the drawee, and the bill consequently becomes more ne cessary. As checks, promissory notes, and bills, when payable on demand, are never presented for acceptance, or accepted, the observations in this chapter in regard to presentment for acceptance, will, in general, be inapplicable in these instru ments. Per Eyre, C. J. in Muilman v. D'Eguino, 2 Hen. Bla. 565. but if a bill be on an insufficient stamp, no presentiment seems necessary, ante, 58. Per Gibbs, C. S. in O'Keefe v. Dunn, 1 Marsh. 616 671. 6 Taunt. 305. S. C. and ante; 125, n. Bay!. 100. 1 Selw. 4th ed. 310, 311. Goodall v. Dolley, 1 T. R. 713. Blesard v. Hirst, Burr. 2670.-Per Lord Ellenborough, in Orr v. Magennis, 7 East, 362. Acc. Mar. 46. Com. Dig tit. Merchant, F. 6. semb. contra. deavouring to get the bill accepted and paid, and make his protest for non-acceptance or non-payment, the taking the bill shall be considered a payment; but the statute does not appear to require a presentment for acceptance, when it would be unnecessary at common law. Molloy, b. 2. c. 10. §. 16. If a bill is drawn upon a merchant in London, payable to J. S. at double usance, J. Š. is not bound, in strictness of law, to procure an acceptance, but only to tender the bill when the money is due. Beawes, pl. 266, p. 453. There is no obligation to procure acceptance of a bill payable at a day certain, as the time goes on, whether accepted or not; but it is otherwise with bills payable at so many days sight. See also Marius, 12, 13. • Johnson v. Collins, 1 East, 99. d Mar. 48. Poth. pl. 143, ment for gotiable and if the drawee refuse to accept, the drawer and in- 1st, When dorser may immediately be sued. And it it said, that it is incumbent presenton the bearer of a bill, when he is but the mere agent of the person acceptance entitled to it, and on the payee, when he is directed by the drawer to is necessa do so, to present it for acceptance as soon as possible, because it is only ry. by acceptance that the person on whom the bill is drawn becomes debtor, and responsible to the holder; and if the affairs of the drawer should be deranged, an agent who has neglected to present the bill for acceptance, might be answerable in damages and interest to the person who employed him. If a person be holder of a bill which is not addressed to any particular individual, but is accompanied with a letter of advice, mentioning the person on whom the bill is drawn, it is said that the bill should be presented to the person mentioned in the letter of advice, who may thereupon accept the bill, and that if he refuse to do so, it may be protested for non-acceptance. In cases where it would otherwise be necessary to present a bill for acceptance, the holder may, as will be seen hereafter, excuse his neglect to do so, by proving that the drawer or other person insisting on the want of it as a defence, had no effects in the hands of the drawee, or had given no consideration for the bill.' With respect to the time when bills payable after sight should be pre- 2dly, At sented for acceptance, it has been observed, that the only rule which what time can be applied to all cases of bills of exchange, whether foreign or presentinland, and whether payable at sight, or at so many days after sight, or ment should in any other manner, is, that due diligence must be used; and, as the acceptance. drawer may sustain a loss by the holder's keeping it any great length of [ 160 ] time, it is advisable in all cases to present it as soon as possible.' In the case of a foreign bill payable after sight, it has been decided, that it is no laches to put it into circulation before acceptance, and to keep it in circulation without acceptance, as long as the convenience of the successive holders requires ; and it has even been laid down, that if a bill drawn at three days sight were kept out in that way for a year, this would not be laches; and if a bill is payable in India sixty days after sight, it is not necesssarily laches to omit presenting it for acceptance for twenty six days after its arrival. But if, instead of putting it into circulation, the holder were to lock it up for any length of time, this would be deemed laches." e Mar. 4th ed. 12. Beawes, pl. 266.Claxton v. Swift, 2 Show. 496. Selw. Ni. Pri. 4th ed. 811. Ballingalls v. Gloster, 3 East, 181.- De Berdt v. Atkinson, 2 Hen. Bla. 336. et post Per Buller, J. in Muilman v. D'Eguino, 2 Hen. Bla. 569. See also Selw. Ni. Pri. 4th ed. 310. Bayl. 100, 1, 2. ! Poth. pl. 143. In Muilman v. D'Eguino, 2 Hen. Bla. 565. In debt on bond conditioned to pay certain bills drawn on India at sixty days after sight, in case they should be returned protested, defendant pleaded that they were not presented for acceptance within a reasonable time after the drawing. It be made for 2dly, At The holder of an inland bill payable after sight is not bound inwhat time stantly to transmit the bill for acceptance, he may put into circula present mentshould be made for put up here for negotiation, and were acceptance therefore liable to be delayed, and that they were presented in India in time after their arrival. The jury found for the plaintiff, and on a rule to show cause why there should not be a new trial and cause shown, the court was satisfied with the verdict, and plaintiff had judgment. Eyre, C. J. said, "it is not necessary to lay down any new rule as to bills of evchange, payable at sight, or within a given time afterwards; if it were, I should feel great anxiety not to clog the negotiation of bills circumstanced like these. It would be a very serious and difficult thing to say, that a person buying a foreign bill, in the way these were bought, should be obliged to transmit it by the first opportunity to the place of its destination. There would also be a great difficulty in saying at what time such a bill should be presented for acceptance; the courts have been very cautious in fixing any time for presenting for acceptance an inland bill, payable at a certain period after sight, and it seems to me more necessary to be cautious with respect to a foreign bill payable in that manner. I think, indeed, the holder is bound to present the bill in a reasonable time, in order that the period may commence from which the payment is to take place, but the question what is reasonable time, must depend on the particular circumstances of the case; and it must always be for the jury to determine, whether any laches are imputable to the plaintiff. Per Buller, J. the only rule I know of, which can be applied to the case of bills of exchange is, that due diligence must be used. Due diligence is the only thing to be looked at, whether the bill be foreign or inland; and whether it be payable at sight, or at so many days after, or any other manner. But I think a rule may be thus far laid down as to laches with regard to bills payable at sight or a certain time after sight, namely, that they ought to be put in circulation; and if a bill drawn at three days sight were kept out in that way for a year, I cannot say that there would be laches; but if, instead of putting it in circulation, the holder were to lock it up for any length of time, I should say that he would be guilty of laches, but further than this no rule can be laid down. Per Heath, J. no rule can be laid down as to the time for presenting bills payable at sight, or at a given time afterwards. In the French or dinances of 1673, in Postlethwaite and Marius, it is said, that a bill payable at sight or at will is the same thing. See also Bayl. 100, 1, 2. Goupy and another v. Harden and others, 7 Taunt. 159. 2 Marsh. 454.- 1 Holt €. N. P. 342. S. C. Indorsee of two bills of exchange drawn in London, 12th of May, 1815, upon Gould and Co. of Lisbon, at thirty days after sight, pay. able to defendants, and by them indorsed in London, and transmitted by them to the plaintiffs in Paris, and afterwards in dorsed by the plaintiffs to Ricci and Sons, who further negotiated them. It was proved that the drawees paid their bills to the 30th June, 1815, but the bills were not presented to them for acceptance until the 22d August in the same year, when they were refused, and protested for non-acceptance. In this action against the defendants as such indorsers, it was objected that there had been laches in not presenting the bills for acceptance; that the bills were payable at thirty days sight. If they had been sent to Gould and Co. with due diligence, and he had refused to accept upon notice of the dis honour to the defendants, they might have recovered against the house of De Franca and Co. the drawers, who continued solvent more than two months from the date of the bills, but instead of transmitting the bills in the ordinary way to Lisbon, they are sent in general circulation, and the defendants hear nothing of the transaction till five months after the indorsement. Per Gibbs, C. J. on the trial, "The distinction is between bills payable at a certain number of days after date, and bills payable at a certain number of days after sight. In the former, the holder is bound to use all due diligence, and to present such bill at its maturity; but in the latter case, he has a right to put the bill into circulation before he presents it, and then of course it is uncertain when it will be presented to the drawee. It is to the prejudice of the holder if he delays to do it, and he loses his money and his interest. There are dicta that it ought to be done in a reasonable time." Verdict for the plaintiff's. Goupy v. Harden, 7 Taunt. 162. Same case on a motion by defendant to set aside the verdict. Per Gibbs, C. J. "If these bills had been locked up, and not sent into circulation, the case would have been widely different. I know dicta may be found, that a bill payable at sight, must be presented within a reasonable time; but this very question occurred in this court in the case of Muilman v. D'Eguino, 2 Hen. Bla. 565. Bills were sent out to India, and one question was, whether they were presented for acceptance within a reasonable time in India, and it was held that they were; but the main question was, whether they were delayed too long in Europe before they were sent out." Upon the last point, Eyre, C. J. tion, and if he do not circulate it, he may take a reasonable time to present it for acceptance, and a delay to present until the fourth day a bill on London, given twenty miles thereof, is not unreasonable." says, "There would be great difficulty in saying at what time such a bill should be presented for acceptance. The courts have been very cautious in fixing any time for an inland bill payable at a certain period after sight, to be presented for acceptance; and it seems to me more necessary to be cautious with respect to a foreign bill payable in that manner. I do not see how the courts can lay down any precise rule on the subject." Heath, J. says, "No rule can be laid down as to the time for presenting bills payable at sight or a given time after." The jury have found that these bills were present ed in a reasonable time, but the law prescribes only that they must be presented at some time. Buller, J. is still stronger, and lays down the rule only, that the bill must be put into circulation. In the present instance these bills were put into circulation, and they passed through Paris and Genoa. He proceeds to say, "If they are circulated, the parties are known to the world, and their credit is looked to; and if a bill, drawn at three days sight, were kept out in that way for a year, I cannot say that there would be laches. But if, instead of putting it into circulation, the holder were to lock it up for any length of time, I should say that he was guilty of laches, I am therefore clearly of opinion that the parties were not guilty of laches, in putting this bill into circulation before it was presented for acceptance." Fry v. Hill, 7 Taunt. 397. This was an action for goods sold and delivered, and upon the trial before Parke, J. at the Sittings after Michaelmas Term, 1817, it appeared that the defendant having occasion to pay the plaintiff 1347. 18s. for goods, early on Friday the 9th of the month the defendants' bankers on his account as to 1341. 18s. (parcel) and receiving from the plaintiff the difference in cash, delivered at Windsor to the plaintiff's servant, a bill, to which the defendant was no party, drawn by themselves upon their corresponding banker in London, at one month after sight for 1407. The bill was presented for acceptance on the 13th of the same month, and the country bankers having failed on that same day, acceptance was refused. Shepherd, Solicitor-General, contended, that as well by this course of dealing which the plaintiff himself had elected, as by his laches in presenting the bill, he had made the bill his own, and was paid for the goods. The jury, however, under the direction of Pake, J. who relied on Goupy v. Harden, ante, 161, found a verdict for the plaintiff. The Solicitor General now moved to set it aside, and 2dly, At what time presentmentshould be made for enter a nonsuit, renewing the same ob- acceptance jections. He insisted that it was the duty of the plaintiff, receiving a bill payable at a certain time after sight, to present it for acceptance, as soon as he conveniently could: If the plaintiff had forwarded this bill for acceptance on the Friday, Saturday, Sunday, or Monday, he would thereby have enabled the defendant to withdraw his funds form his banker's hands. The necessity is more urgent to present for acceptance a bill payable after sight, than a bill payable after date, because, by deferring it, the holder protracts the period of that payment, whereby the drawer proposes to withdraw his effects from the hands of the drawee. Secondly, it was for the plaintiff's own convenience of remittance, that, instead of taking a check for the sum which the defendant proposed to pay, he had commuted it for a bill, and this was strongly evinced by his taking a bill not for 1347. 18s. but for 1401., paying the difference, and therein in blending his own property with this payment, whereby he had rendered the bill completely his own, and was paid for his goods. Gibbs, C. J. The defendant's argument on the first point, would go to the extent, that the holder of a bill payable after sight is bound to transmit it for acceptance, without putting it into circulation at all. But even if it were a case in which it was required to give instant notice, it has been repeatedly determined that the holder of a bill is not bound to send it on the same day that he receives it; and there was no post to London on the Saturday. He might have sent it on the Sunday. But I do not go upon that ground. The holder must present a bill payable after sight in a reasonable time; but it is in the power of the holder to postpone the day of payment by postponing the day of the presentment for acceptance, and he certainly may put the bill into circulation if he will. In the recent case of Goupy v. Harden, the bills were put into circulation; here it does not appear what was done with the bill in the interval. The question on these bills drawn at sight certainly is left very loose by the cases. The result of the cases un. doubtedly is, that which I have stated, and Eyre, C. J. says, in Muilman v. D'Eguino, 2 Hen. Bla. 565, that it is, under all circumstances, a question for the jury to determine whether such a bill was presented in a reasonable time. Buller, J. in the same case, rather narrows that doctrine, and though he agrees, that if it were in circulation a twelvemonth, there would not be laches; yet he says, that if instead of putting it into circulation, the present 2dly, At It has been said, that the question what is a reasonable time, must dewhat time pend on the particular circumstances of the case; and that it must almentshould ways be for the jury to determine, whether any laches are imputable to be made for the plaintiff'; and this rule appears to have been adopted in the more acceptance recent cases applicable to this subject," but from other cases it should 3dly, Mode seem that reasonable time is to be taken as a question of law dependant upon the facts. It was said by Lord Mansfield," that what is reasonable time for giving notice of the dishonour of a bill, is partly a question of fact and partly of law; it may depend in some measure on facts, such as the distance at which the parties live, the course of the post, &c.; but that whenever a rule can be laid down with respect to this reasonable time, it should be decided by the court, and adhered to for the sake of certainty. Presentment should in all cases be made during the usual hours of business; but a neglect to make a presentment at a proper time may be excused by illness, or by the circumstance of war having been declared, or by other reasonable cause or accident not attributable to misconduct of the holder." The presentment should be to the drawee himself, or to his auof present-thorized agent, for otherwise the drawer or indorsers will not be ing for ac- chargeable. It has been said that ex rigore, the drawee ought to ceptance. accept the bill immediately on presentment, or refuse to do so, and [164 The is not allowed three days for deliberation by the custom of mer chants; as, however, it is but reasonable that the drawee should have an opportunity, before he determines whether he will accept or not, of seeing whether he has effects of the drawer in his hands, the payee or holder usually may leave the bill with him twentyfour hours, or until the next day after the presentment, unless in the interim he accept or declare a determination not to accept ; " holder were to lock it up for any length • Per Eyre, C. J. in Muilman v. D'Eguino, see Patience v. Townley, 2 Smith's Rep. 223, 4. * Check v. Roper, 5 Esp. Rep. 175. Declaration against drawer of a bill for default of acceptance. To prove the fact of the bill having been presented to Hammond for acceptance, the plaintiff proved that the bill was sent by the witness, who was called, who carried it to the house which was described to him as Hammond's house; he offered it to some person in a tan-yard, who refused to accept it; but he did not know Hammond's person, nor could he swear that the person to whom he offered the bill was him, or represented himself to be so. Lord Ellenborough said, that the allegation respecting the bill was a material one, as the drawer could only become liable on the acceptor's default, which default must be proved. That the evidence here offered proved no demand on Hammond, and was therefore insufficient. so that the plaintiff could not recover on the bill. Some evidence must be given of an application to the party first liable. y Com. Dig. tit Merchant, F. 6. Marius, 15, 16. and see Hamburg Ordi nance. 2 Ingram v. Forster, 2 Smith's Rep. 243, 4. Bellasis v. Hester, 1 Ld. Raym 281. Mar. 62. Beawes, pl. 17. Mal. |