que use) was an officer in the excise, and indebted to the king in such a sum, and that upon an exchequer process at the suit of the king, the sum mentioned in the bill was extended in his hands; upon demurrer, it was adjudged by the court for the plaintiff; first, because C. had an equitable and not a legal interest to have the money, for he could not maintain an action against the acceptor. Secondly, the endorsement was for value received of plaintiff by B., and so B.` received the money to which C., as cestui que use, had an equity; but the sum demanded by plaintiff is not that sum, but another due to him for value received, in which ¡ sum C. was not concerned, for which reason the money now in demand was not extendible. This judgment was affirmed on error in the exchequer chamber. E. 2 W. & M. See 2 Vent. 307.

It is the constant usage of merchants for administrators to endorse and assign over bills of exchange, made payable to their intestate's order.

Where a bill of exchange has been endorsed by the payee to A. and B. as executors, they may declare as such in an action against the acceptor.

When a bill of exchange is drawn, payable to A. and B. or their order, and A. and B. are not partners; to make it negotiable, the bill should be endorsed by A. and B., such being the usage of merchants (49); but in such case if the bill be endorsed by A. in the name of himself and B., and afterwards the drawee accepts the bill so endorsed, it is not competent to him to object, that the bill has not been regularly endorsed. See Porthouse v. Parker, post. tit. Partners. S. IV.

a E. 1 Will. & Mar. Holt C. J.
b Per Denison J. 3 Wils. 4.
c King v. Thom, 1 T. R. 487.

d Carvick v. Vickery, Doug. 653 n.
e Jones v. Radford, 1 Camp. N. P. C.

83 n.

(49) As the property in a bill of exchange passes to the holder, when he pays the consideration, and as endorsement is merely evidence of the transfer, a trader, who before his bankruptcy has parted with a bill for a valuable consideration, but omitted to endorse it, may endorse it after his bankruptcy; and such endorsement will be a sufficient title to the party to whom it was delivered. Smith v. Pickering, Peake's N. P. C. 50.

VI. Of Presentment for Payment, and herein of the Days of Grace-Non-payment and Notice

thereof-Protest.

WHERE bills of exchange are drawn payable at usance (50), or a certain time after date, or after sight, such bills ought not to be presented for payment at the expiration of the time mentioned in the bills, but at the expiration of what are termed days of grace (51).

"In case of foreign bills of exchange the custom is, that three days (52) are allowed for payment of them, and if they are not paid on the last of the said days, the party ought immediately to protest the bill, and return it, and by this means the drawer will be charged; but if he does not protest it the last of the three days, which are called days of grace, there, although he upon whom the bill is drawn fails, the drawer will not be chargeable; for it shall be reckoned his folly that he did not protest, &c. But if it happens that the last of the said three days is a Sunday, or a great holiday, as Christmas-day, &c. upon which no money used to be paid, there the party ought to demand the money on the second day; otherwise it will be at his own peril, for

a Per Merchants, in evidence at Guildhall, Trin. 7 Wil. 3. coram Holt C. J. Tassell v. Lewis, Ld. Raym. 743.

(50) This term signifies the time, which, by the usage of the countries between which the bills are drawn, is appointed for the payment of them. Poth. s. 15. See a table of usances, Chitty, 142, 143. Usances are calculated exclusively of the date of the bill, Chitty, 143.

The computation of time, when expressed by months, is by calendar months, Chitty, 143. Where bills are payable so many days after sight, the days are computed from the day the bills are accepted or protested for non-acceptance.

(51) In an action against the drawer of a bill of exchange, the evidence being that the bill had been demanded from the acceptor on the day preceding the last day of grace; the plaintiff was nonsuited, Wiffen v. Roberts, B. R. Middlesex Sittings, Kenyon C.J. H. 35 Geo. 3. 1 Esp. N. P. C. 262.

(52) Three days, exclusively of the day on which the bill becomes due, every where, except at Hamburgh, where that day makes one of the days of grace, Chitty, 140.

the drawer will not be chargeable." Good Friday is to be considered as a Sunday or Christmas day".

The foregoing passage from Lord Raymond's Reports, mentions only foreign bills of exchange; but it was said by Lord Kenyon C. J. in Brown v. Harraden, 4 T. R. 152. that it had been settled for more than half a century, that inland bills of exchange were payable at the same time as foreign bills of exchange.

I am not aware that it has ever been solemnly decided, that days of grace are allowable on bills of exchange payable at sight. If the reader wishes to pursue the dicta on this subject, he will find them collected in Mr. Chitty's Treatise on Bills of Exchange, &c. p. 144, 145, 146. The weight of authority is in favour of such an allowance (53).

No debt arises upon a bill payable after sight until a presentment for payment, and consequently the statute of limitations will not operate as a bar to such bill, unless it has been presented for payment six years before the action commenced. A different rule holds with respect to promissory notes payable on demand; for, there the statute runs from the date of the note, and not from the time of the demand.

The acceptor of a bill of exchange, having or being presumed to have in his hands effects of the drawer, for the purpose of discharging the bill, is considered as the principal debtor, and is primarily liable; payment must, therefore, be demanded of the acceptor in the first instance, on the day when the bill becomes due; and, in case of refusal or default, due notice of such demand and refusal or default must be given to the drawer, within a reasonable time after such demand and refusal or default, in order that he may withdraw his effects as speedily as possible from the hands of the acceptor. Until these previous steps have been taken, the drawer cannot be resorted to for non-payment of the bill. The want of notice to a drawer who has effects in the hands of the acceptor, after dishonour of the bill, is considered as tantamount to payment by him.

In an action by the endorsee of a bill of exchange against

b Stat. 39 and 40 G. 3. c. 42.

e Holmes v. Kerrison, 2 Taunt. 323.

d Christie v. Fonsick, C. B. London

Sittings after M. T. 52 G. 3. Sir J.
Mansfield C. J. M. S.

e Dagglish v. Weatherby, 2 Bl. R. 747.

(53) Days of grace are not allowed on bills payable on demand, Chitty, 146,

Y

1

the drawerf, it appeared that the bill had been drawn on the 1st of March, 1806, by the defendant, on one Moses Agar, payable three months after date: and the plaintiff, having become the holder of it, had placed it in the hands of his bankers, Down and Co. On the 4th of June, when the bill became due, a clerk of Down and Co. presented it for payment; and it was dishonoured. On the 5th they returned it to the plaintiff, who by letter, put into the twopenny post on the 6th, gave notice to the defendant of the dishonour; the plaintiff living in London, and the defend. ant at Shadwell. The case was left to the jury on the ques tion, whether the notice of the dishonour had been given in reasonable time; and the jury, being of opinion that it had, found a verdict for the plaintiff. And on motion for a new trial, on the ground that due diligence had not been used, the court refused the rule:-Le Blanc J. observing, that it could not be contended that a banker ought to give notice of the dishonour to any but his customers, for whom he held the bill; and he thought that the holder of a bill might avail himself of the conveyance by the two-penny post.

The distance at which the parties live from one another is immaterial, provided they are within the limits of the two-penny post; and it is sufficient if the letter be put into the receiving house in time for the party to have it on the day when he ought to have notice of dishonour.

Where there are several endorsements, and the holder gives notice of dishonour to his endorser, neither that en dorser, nor any prior endorser, is bound to transmit the no. tice of dishonour on the very day on which he receives it. Each successive endorser will be considered as having used due diligence, if he transmit the notice of dishonour on the day after it is received, in a case where all the parties live in the same place; but if he neglect giving the notice on that day and the day after, it will be too late. In Smith v. Mullett, 2 Camp. Ñ. P. C. 209. Lord Ellenborough said, that it was of great importance that there should be an established rule upon this subject, and he thought there could be none more convenient than that where the parties reside in London, each party should have a day to give notice. In that case the plaintiff had notice of dishonour on the Monday, and did not give notice to his endorser until the Wednesday; Lord Ellenborough ruled, that as a day had

f Scott. Lifford, 9 East, 347. 1 Camp. h Hilton v. Fairclough, 2 Camp. N. P. N. P. C. 246. S. C.

g See Robson v. Bennett, 2 Taunt. 388.

C. 633.

been lost, the notice was not given in due time.-In Jameson v. Swinton, 2 Camp. N. P. C. 373, the same rule was recognized by Lawrence J. viz. that each party to the bill has a day to give notice, with this addition, that a subsequent endorser may avail himself of a notice given by a prior endorser to the drawer; and that a notice given between eight and nine o'clock in the evening to a party living at Islington is given in due time. See 2 Taunt. 224, S. C.

The law merchant, however, respects the religion of different people; and consequently a person is not required to give notice of the dishonour of a bill on a day, when by the rules of his religion, it is unlawful to attend to secular affairs; e. g. a great Jewish festival'.

If the drawee of a bill goes abroad, leaving an agent here in England with power to accept bilis, by virtue of which power the agent accepts the bili in question, it is incumbent on the holder to present such bill to the agent for payment, if the drawee continues absent.

Where a bill is made payable at a banker's in the city of London, it is sufficient to present the bill for payment to a clerk of the banker at the clearing house'. It is customary among the London bankers in their dealings with each other, not to pay any check which is presented by, or on the behalf of another banker, after four o'clock in the afternoon; but merely to give an answer to the person so presenting it, whether it is a good check or not: and in case the check is approved, a mark is made on it, either by the person presenting it or the person who gives the answer; and a check so marked is considered as entitled to a priority of payment on the next day. It is not necessary to present a check, so marked, for payment at the banking house on the next day; it is sufficient if it be presented at the clearing house.

Where the holder of a bill of exchange intends to sue any of the endorsers, it is incumbent on him first to demand payment from the acceptor, on the day when the bill becomes due, and in case of refusal, to give due notice (54) thereof, within a reasonable time, to the endorser (55).

i Lindo v. Unsworth, 2 Camp. N. P.C. 602.

k Philips v. Astling, 2 Taunt, 206.

1 Reynolds v. Chettle, 2 Camp. N. P. C. 596.

m Robson v. Bennett, 2 Taunt. 289. n Rushton v. Aspinall, Doug. 679.

(54) Notice of dishonour must be given within a reasonable time.