test. bill previously accepted supra protest, may be accepted by another Sect. 5. Of person, supra protest, in honour of some particular person. No one, acceptance however, should accept a bill under protest for non-acceptance for the supra prohonour of the drawer, before he has ascertained from the drawee his reason for suffering the bill to be protested; but if the acceptance be [242] in honour of the indorser, such inquiry is unnecessary. It is said, that the holder of a bill must receive an acceptance supra protest, if offered by a responsible person, it being of no importance to him, whether it be accepted simply, or under a protest, as the acceptor pays the charges, unless he had orders from the remitter not to admit of such an acceptance. But this dictum seems to be erroneous, for it has been adjudged that the holder need not acquiesce in any case. There cannot be a series of acceptors of the same bill; it must either be accepted by the drawee, or failing him, by some one for the honour of the drawer. The method of excepting supra protest is said to be as follows: the 2dly. Of the acceptor must personally appear before a notary public with witnesses, mode of acand declare that he accepts such protested bill in honour of the drawer cepting su or indorser, and that he will satisfy the same at the appointed time; and pra protest. then he must subscribe the bill with his own hand, thus- accepted supra protest, in honour of J. B.," or, as is more usual, "accepts S. P." A general acceptance supra protest is considered as made for the honour of the drawer, unless otherwise expressed. Such acceptance, however, may be so worded, that though it be intended for the honour of the drawer, yet it may equally bind the indorser; but in this case, notice of such acceptance must be sent to the latter. The holder should always take care to have the bill protested for non-acceptance before the acceptance for honour is made, as otherwise, it is said, the drawer might allege that he did not draw on the person making the acceptance. or An acceptance supra protest is as obligatory on the acceptor, as if no зdly. Of the protest had intervened, it being immaterial to the holder of a bill, on liability of whose account it is accepted. If the acceptance were for the honour the acceptof the bill, or of the drawer, the acceptor is liable to all the indorsees, supra protest. as well as the holder: if in honour of a particular indorser, then to all subsequent indorsees. The acceptance supra protest, however, is only a conditional engagement, and to render such acceptor absolutely liable, the bill must be duly presented for payment to the drawee, and [243] protested in case of refusal." (313) (313) When a bill of exchange is protested for non-acceptance, and afterwards is taken up and paid for the honour of an indorser, it has been held that the holder is still such ceptor. ac 4thly. Of A person accepting a bill supra protest, either for the honour of a the right of drawer or of an indorser, although without his order or knowledge, has, as it is said, his redress and remedy against such person, and to all other persons who are liable to that person, who must indemnify him from any damage he may have sustained, the same as if he had acted entirely by his direction." He who accepts a bill in honour of the drawer only, has no remedy against any of the indorsers, because he accepts merely on the behalf of the drawer; but the acceptor for the honour of the drawer of a bill already accepted by the drawee, but protested by the holder for better security, may, when he has paid the bill, sue the drawer or drawee, though in the case of a bankruptcy of these parties, if the first acceptance were for the accommodation of the drawer, a court of equity will compel the acceptor supra protest first to resort to the drawer's estate. [244] An acceptor, for the honour of an indorser, has no claim upon any party to the bill subsequent to him for whose honour he accepted; but the indorser, for whose honour he accepted, and all the prior parties, the drawer included, are obliged to make satisfaction to the accep tor.P date; the bills were presented to Messrs. P. benefit to arise from such second demand, or at any rate, to the benefit of that evidence which the protest affords; that the demand has been made duly without effect, as far as such evidence may be available to him for purposes of ulterior resort." Beawes, pl. 47. Smith v. Nissen, 1 T. R. 269. Bayl. 73, 4. et vide post, of payment supra protest. tate. Ex parte Wackerbarth, 5 Ves. 574 The acceptor of a bill having become bankrupt, and the holders having protested it for better security, Christian and Bowen accepted it for the honour of the drawers. and having paid it, new claimed to be enti tled to dividends under the bankrupt's es The Chancellor said, he had spoken to persons in trade upon the subject, and the result was, that the person accepting for the honour of the drawer, had a right to come upon the acceptor. He said, however, that the justice of the case required, that they should go in the first place against the drawer, if the acceptor had no effects and directed an inquiry to be made, whether the original acceptor, or Christian and Bowen, had effects of the drawer's in hand. Beawes, pl, 49. 85. 44. Poth. pl. 113 Molloy, B. 2. c. 10. s. 24. bound to cause the bill to be protested for non-acceptance and non-payment, and to give regular notice to the antecedent parties in the same manner as if the bill had not beca taken up. It is material however to observe that this doctrine was delivered in a case where the action was brought by the indorser for whose honour the bill had been paid, against a prior indorser, and that the neglect to make the protest and give notice, was on the part of the persons who had taken up the bill for his honour. Lenor Leverett, 10 Mass. Rep. 1. CHAPTER V. OF PRESENTMENT OF A BILL, &c. FOR PAYMENT—OF. ment for It would be extremely prejudicial to commerce, if the holder of a Sect. 1. Of bill or note, were suffered to give longer credit to the drawee than the presentinstrument directs, and afterwards, in default of payment by the payment; drawee, to resort to the drawer or indorsers, at a time when perhaps and 1st, the accounts between them and the persons liable to them may have When prebeen adjusted, or those persons may have become insolventa and the sentment is common law detests negligence and laches. On this principle, it is necessary. settled, that the holder of a bill must present it to the drawee for payment at the time when due, when a time of payment is specified; and when no time is expressed, within a reasonable period after receipt of the bill; and that if he neglect to do so, he shall not afterwards resort to the drawer or indorsers, whose implied contracts are only to pay in default of the drawee, and not immediate or absolute, and who are always presumed to have sustained damage by the holder's laches."(315) a Allen v. Dockwra, 1 Salk. 127. Collins v. Butler, Stra. 1807. Bul. Ni. Pri. 470. 2 Bla. Com. 470. Per Curiam, in Chamberlyn v. Delarive, 2 Wils. 354. Poth. pl. 129. Cowley v. Dunlop, 7T. d Heylin v. Adamson, 2 Burr. 669.- (315) The drawer of a bill, and the indorser of a note, are responsible only after a default of the acceptor or maker; and the holder must first demand payment of him, or use due diligence to demand it before he can resort to the drawer or indorser. Munroe v. Easton, 2 John. Cas. 75. Berry v. Robinson, 9 John. Rep. 121. Griffin v. Goff, 12 John. Rep. 423. May v. Coffin, 4 Mass. Rep. 341. And if an indorser of a bill on its becoming due pay the amount to the indorsee, the latter never having demanded payment of the acceptor, he cannot recover the amount from the drawer. Munroe v. Easton, 2 John. Cas. 75. It is no excuse for not demanding payment of the drawee, that the drawer has no funds in the hands of the drawee. Cruger v. Armstrong, 3 John. Cas. 5. Notice to an indorser prior to a demand upon the acceptor of a bill, or maker of a note, is a mere nullity. Jackson v. Richards, 2 Caine's Rep. 343. Griffin v. Goff. And in respect to the necessity of a demand, there is no difference whether the note or bill be indorsed before, or after, it became due. Berry v. Robinson. But the want of a demand will be excused when the acceptor has absconded, or cannot be found. Putnam v. Sullivan, 4 Mass. Rep. 45. Widgery v. Monroe, 6 Mass. Rep. 449. Stewart v. Eden, 2 Caine's Rep. 121. And such fact may be given in evidence under the common averment that the note was duly presented, and refused payment. Stewart v. Eden, 2 Caine's Rep. 121. Saunderson v. Judge, 2 H. Bl. 510. contra Blakely v. Grant, 6 Mass. Rep. 386. But an averment in such case that the holder had used due diligence, but could not find the acceptor, would seem to be more correct. Blakely v. Grant. Note If a notary go to the maker's house to demand payment, and find it shut up, and that he is out of town, this is a sufficient demand. Ogden v. Cowley, 2 John. Rep 270. Not only must a demand be made upon the drawee, but it must be made within a reasonable time, otherwise the drawer will be discharged, especially if prejudiced by the neglect. Therefore where a creditor received an order from his debtor on a third perCHITTY ON BILLS. Gg ment is ne cessary. 1st, When An acceptor supra protest, we have seen, is also within this rule; and present- if a bill be accepted, or note made payable a certain time after sight, a presentment is obviously essential, in order to complete the right to payment. And whenever it is incumbent on the holder to present a bill or note for payment at a precise time, and he neglects to do so, he will lose his remedy as well on the bill as upon the consideration or debt, in respect of which it was given or transferred. It appears that a distinction was formerly taken between a bill of exchange given in payment of a precedent debt, and one given for a debt contracted at the time the bill was given;s in the latter case, it was always holden, that the person who received, it must have used due diligence to obtain [246] the money from the drawee, and that in default of his so doing, he could not support any action against the party from whom he received it; but in the former case, the bill was not considered as payment, unless the money were actually paid by the drawee, although the holder might have neglected to present it for payment, or to give notice of non-payment; and the holder, though he cold not sue on the bill, might maintain an action for the consideration on which it was given." This distinction, founded, it is presumed, on the principle that a bill, delivered in consideration of a precedent debt, could only be understood as a collateral security, which the assignee might waive, does not any longer exist.i It has been holden that even the bankruptcy, insolvency, or death of the acceptor of a bill, or maker of a note, however notorious, will Ante, 243. f Holmes v. Kerrison, 2 Taunt. 323. Ante, 143. h Clerk v. Mundall, 12 Mod. 203.1 Salk. 124. S. C. Anon. 12 Mod. 408. Anon. Holt, 299. Trials per Pais, 499. Kyd, 171. i Ante, 94, 5, 6. 143. Bul. Ni. Pri. 182. Smith v. Wilson, Andr. 187. It seems to be the opinion of a modern writer on bills (Kyd, 172,) that the statute 3 & 4 Anne, c. 9. s. 7. put an end to this distinction; but with deference it is submitted that the clause referred to in support of that opinion, relate's only to such bills as are alluded to in the 4th section of the act, namely, bills made payable after date, and expressed to have been given for value received; and the 7th clause also only takes away the accumulative remedy given by. the statute 9 & 10 Wil. 3. c. 17. and 3 & 4 Anne, c. 9. It is therefore probable that this alteration is rather to be ascribed to the change of opinion in our courts of justice. Russell v. Langstaffe, Dougl. 515. Per Lord Mansfield, because many means may remain of obtaining payment by the assist ance of friends or otherwise. Per Lord Ellenborough, in Warrington e. Furbor, 8 East, 245. Ante, 210. Bayl. 115. Per Lord Ellenborough, in Esdaile v. Sowerby, 12 East, 117. Ante, 210. Bowes v. Howe, 5 Taunt. 30. 16 East, 115. S. C. Bayl. 115. son, on the 9th of December, which the drawee agreed to pay in ten or fifteen days, and the order was not presented until the March following, or afterwards, when the drawee had become insolvent, and the drawer was held discharged. Brower v. Jones, 3 John Rep. 230.; and see Cruger v. Armstrong, 3 John. Cas. 5. and Conroy v. Warren, 3 John. Cas. 259. Stothart v. Lewis, Overt. Rep. 215. If at the time of the note's falling due, the holder is at a place distant from the place of abode of the maker, a reasonable time will be allowed to make the demand. Thus, where at the maturity of the bill, the holder was at 200 miles distance from the maker's place of abode, a demand six days after was held to be within reasonable time; but a demand thirty days after was held unreasonable. Freeman v. Boynton, 7 Mass. Rep. 483. In order to make a demand good, it is necessary that the party making it should have a written or verbal authority from the holder; and should have with him the note itself, for the debtor has a right, upon payment, to receive and cancel it. Freeman v. Boynton. If the maker of a note be alive at the time of its falling due, his insolvency does not absolve the holder from showing that he has used due diligence to obtain the amount due Clan v Barr, 2 Marsh, 256 ment is ne cessary. hot excuse the neglect to make due presentment; and in the last case 1st. When it should be made to his personal representative, and in case there presentbe no executor or administrator, then at the house of the deceased," or the drawer or indorsers will be discharged. If the maker of a note has shut up his house, it will not suffice merely to present it there, for the holder ought to inquire after him, and endeavour to find him out." At all events, although the drawee of a bill, or maker of a note, being bankers, may have shut up and abandoned their shop, yet a presentment there, or to them in person, must be made, and it will not suffice to allege in a declaration, that they became insolvent, and ceased and wholly declined and refused to pay at their bank any notes then payable. If the holder of a bill at the time it becomes due, be dead, it is said [ 247 ] that his executor, although he have not proved the will, must present it to the drawee. If the drawee goes abroad, leaving an agent in England, with power to accept bills, who accepts one for him, the bill when due, must be presented to the agent for payment, if the drawee continue absent. When a bill, transferrable only by indorsement, is delivered to a person without being indorsed, he should nevertheless present the bill for payment to the acceptor, and offer an indemnity to him; and if the acceptor then refuse to pay, the bill should be protested for non-payment. It has been holden, that if a draft be given, Howe v. Bowes and others, 16 East, 112. 1 M. & S. 555. judgment of K. B. reversed on error in Exchequer Chamber, 5 Taunt. 30. The plaintiff declared as holder of a promissory note, made by the defendants on the 2d January, 1809, at Workington Bank, that is, at Penrith, in the county of Cumberland, whereby the defendants then and there promised on demand, to pay one R. W. or bearer there, that is to say at Workington Bank aforesaid, five guineas, value received. The declaration afterwards averred, that after the making of the note, the defendants became insolvent, and then and from thenceforth until and at the time of exhibiting of the bill aforesaid, ceased and wholly declined and refused to pay at the Working ton Bank aforesaid, the sum or sums of mo ney specified in any note or notes issued by them from such bank, to wit, at Penrith aforesaid, &c. Lord Ellenborough, C. J. observed that the mere allegation of insolvency, as an excuse for not presenting the notes for payment at the place, would be impertinent; but in this case, the allegation, the truth of which as reported by the learned Judge, was left to the jury, and found by them, went further, that the defendants had ceased and wholly declined 66 After and refused payment of any of their notes Poth. pl. 146. Molly, b. 2. c. 10. pl. 4 Phillips v. Astling, 2 Taunt. 206. |