of the principle, and held, that if an endorsee takes a bill heedlessly, and without due caution, and under circumstances which ought to have excited the suspicions *of a *82 prudent and careful man, the maker or acceptor may be let in to his defence. It was deemed material for the interests of trade, that a person should be deemed to take negotiable paper at his peril, if he takes it from a stranger without due inquiry how he came by the bill. He is bound to exercise a reasonable caution, which prudence would dictate in such a case; and it is a question of fact for a jury, whether the owner of the lost or stolen bill had used due diligence in apprising the public of the loss, and whether the purchaser of the paper had, under the circumstances of the case, exercised a reasonable discretion, and acted with good faith and sufficient caution in the receipt of the bill. The doctrine of Lord Kenyon, in Lawson v. Weston,a that the bona fide purchaser of a lost bill was at all events to recover, is expressly overruled. This new doctrine, imposing upon the owner due diligence in giving to the public notice of the loss, and upon the purchaser of the bill due caution and inquiry, is supposed to be calculated to increase the circulation and security of negotiable paper, and to render it more difficult for thieves and robbers to pass it off.b (1)

4 Esp. N. P. 56.

In Backhouse v. Harrison, 3 Neville & Manning, 188, the case required the endorser, who lost his bill by accident, to show in his defence gross negligence, imputable to the holder as evidence of mala fides, in order to impeach his title. The same principle was followed in Crook v. Jadis, 3 Neville & Manning, 257. 2 Mylne & Keene, 638. Goodman v. Harvey, 6 Neville & Manning, 372; so that the case of Gill v. Cubitt seems to be somewhat weakened, if not destroyed, as an authority. Mr. Justice Story (Story on Bills, 216) considers the doctrine in Gill v. Cubitt as absolutely overruled and abandoned, and he cites, in support of his conclusion,

(1) The English rule as to lost bills, as settled by cases, is this: "If a negotiable bill or note, that is, a bill payable in its original state to bearer or order, be lost at the time a party is called on to pay, the loss constitutes a good defence; otherwise, if it be not in its original state a negotiable bill or note, as where it is payable to the payee only." Clay v. Crowe, 18 Eng. L. & E. R. 514. The American rule varies. In some states, a statute provides for an indemnity to the party called on to pay, and allows a recovery against him. In other states, the courts, without statute, require the indemnity. In others, the English rule prevails. 2 New York R. S. 406. Clarke v. Read, 12 S. & M. 554. Fales v. Russell, 16 Pick. R. 315. Meaker v. Jackson, 3 Yeates' R. 442. Swift v. Stevens, 8 Conn. R. 481. Rogers v. Miller, 4 Scammon R. 834. See a

note by the editors of Eng. L. & E. R. vol. xviii. p. 516, where the American cases are collected, and from which note the cases last cited are taken.

(4.) Of the acceptance of the bill.

There is no precise time fixed by law in which bills payable at sight, or a certain number of days after sight, must be presented to the drawee for acceptance, though there must not be any unreasonable delay, for that might discharge the drawer and endorser.a A bill payable on a day certain after date, or on demand, need not be presented for acceptance before the day of payment or demand; and if not presented previously for acceptance, the right to require acceptance becomes merged in, or, as Pardessus says, confounded with the right to demand payment; but if presented before it becomes due, and acceptance be refused, it is dishonoured, and notice must then be given forthwith to the parties whom it is intended to charge. There is a distinction made in the cases between the owner of the bill and his agent on this point. Though the owner is not bound to present the bill payable at a day certain, for acceptance before the day, the agent employed to collect the bill, or to get it accepted and paid, or accepted, must act with due diligence to have the bill accepted as well as paid. He has not the discretion and latitude of time given to the owner, and for any unreasonable delay on his part, he would be held responsible for all damages

Goodman v. Harvey, ub. sup. Uther v. Rich, 10 Adolph. & Ellis, 784. Stephens v. Foster, 1 Cromp. Mees. & Rose, 849. (1)

If a check be so filled up, through ignorance or carelessness, as to enable the holder conveniently to insert three hundred before fifty, and the banker is thereby misled to pay the inserted sum, the loss must fall on the drawer of it, and not on the banker. Pothier, Traité du Con. de Change, part 1. c. 4. sec. 99. Young v. Grote, 4 Bingham, 253. With respect to bank bills absolutely destroyed by accident, the banker, on due proof thereof, must pay the owner who held them when destroyed. But if only lost, by theft, &c., and are in existence, the bank must pay the bona fide holder. Shaw, Ch. J, in Whiton v. Old Colony Ins. Co. 2 Metcalf, 6.

It is settled by the Supreme Court of the United States, that the payee or endorsee of a bill of exchange may maintain an action of debt against the acceptor, if the bill be expressed for value received. Raborg v. Peyton, 2 Wheaton, 385.

b Bank of Washington v. Triplett, 1 Peters' U. S. Rep. 25. Townsley v. Sumrall, 2 ibid. 170. Pardessus, Cours de Droit Com. tome ii. secs. 358, 359. Walworth, Ch., in Allen v. Suydam, 20 Wendell, 323, 324. Story on Bills, 252.

(1) See Pringle v. Phillips, 5 Sandf. S. C. R. 157, where Duer, J., in an elaborate opinion, dissents from the case of Goodman v. Harvey, especially as applicable to the sales of merchandise.

which the owner may have sustained by reason thereof.

A bill payable at sight, or so many days after sight, *as *83 well as a bill payable on demand, must be presented in

a reasonable time, or the holder will have to bear the loss proceeding from his default.b

The acceptance may be by parol or in writing, and is

Allen v. Suydam, 17 Wendell, 368. S. C. 20 ibid. 321. Van Wart v. Wooley, 5 Dowl. & Ryl. 874. 3 Barnw. & Cress. 439. Chitty on Bills, 300. Pothier, Traité du Contrat de Change, No. 128. The Bank of Scotland v. Hamil ton, Bell's Com. vol. i. 409, note.

Marius on Bills, 19. Smith v. Wilson, Andrews' Rep. 147. Chamberlyn v. Delarive, 2 Wils. Rep. 353. Muilman v. D'Eugino, 2 H. Blacks. Rep. 565. Aymar v. Beers, 7 Cowen's Rep. 705. If the holder of a draft or bill omits due diligence, without just cause, in obtaining payment, or in giving notice of non-payment, he makes the bill his own. Tobey v. Barber, 5 Johnson's R. 68. Jones v. Savage, 6 Wendell's R. 658. Dayton v. Trull, 23 ib. 345. Fry v. Hill, 7 Taunton, 397. Wallace v. Agry, 4 Mason, 336. In this last case, the bill was drawn in Havana, upon London, at sixty days' sight, and it was held that it might be sent for sale to the United States, according to the course of trade, and need not be sent from Cuba directly to London. But in Camidge v. Allenby, 6 Barnw. & Cress. 373, the vendee paid vendor of goods in notes of a country bank, payable on demand to bearer. The bank, at the time, had stopped payment, but the fact was unknown to both parties. The vendor had kept the notes for a week, without circulation or demand of payment, and it was held that he made the notes his own by this negligence. The French Commercial Code requires a bill drawn from the continent or isles of Europe, and payable within the European possessions of France, to be presented within six months from the date, and in default, the holder loses all recourse over. Code de Com. liv. 1. tit. 8. sec. 11. There is no such fixed rule in the English law. In Mellish v. Rawdon, 9 Bingham, 416, it was held, that there must be no unreasonable delay in forwarding for acceptance a bill drawn on a person abroad, and payable at so many days sight. What would amount to an unreasonable delay, so as to cast upon the holder the loss arising from the failure of the drawee before acceptance, would depend upon the circumstances of the case, and was a question of fact for a jury. See, also, Story on Bills, pp. 247. 256. 562. The rule is, that an inland bill or check, payable on demand, held by the payee, need not be presented for payment on the day he receives it. The usual business hours, or seasonable time of the next day of business, is sufficient. Chitty on Bills, pp. 414. 421. Story on Bills, pp. 562, 563. 568. If the bill or check has been put in circulation, each party may perhaps be allowed a day as between him and the party from whom he receives the check. But see Story on Bills, pp. 565— 573, as to the difficult point as to what is reasonable time to present the bill or check, when it passes through several hands. It cannot with safety be kept by a succession of persons long in circulation. The general rule is, that the drawee has twenty-four hours to consider whether he will accept the bill or not. Chitty on Bills, c. 7.

general or special.a (1) Though a bill comes into the hands. of a person with parol acceptance, and he takes it in ignorance of such an acceptance, he may avail himself of it afterwards. If the acceptance be special, it binds the acceptor sub modo, and according to the acceptance. But any acceptance varying the absolute terms of the bill, either in the

sum, the time, the place or the mode of payment, is a *84 *conditional acceptance, which the holder is not bound

to receive; and if he does receive it, the acceptor is not liable for more than he has undertaken. (2) The doctrine of qualified acceptances as to part of the money, is spoken of in Marius and Molloy; and in the case of Rowe v. Young, in the House of Lords, it was established to be the true construction of the contract, and the true rule of the law-merchant, that if a bill be accepted, payable at a particular place, the holder is bound to make the demand at that place. The rule is also settled, that a promise to accept, made before the acceptance of the bill, will amount to an acceptance in favour of the person to whom the promise was communicated, and

C

a

Lumley v. Palmer, Str. R. 1000. Powell v. Monnier, 1 Atk. R. 612. Walker v. Lide, 1 Richardson's S. C. Rep. 249. Fisher v. Beckwith, 19 Vt. R. 31. By statute 1 and 2 Geo. IV. c. 78, no acceptance of any inland bill of exchange is sufficient to charge any person, unless such acceptance be in writing on the bill, and this is the statute law in Georgia, Hotchkiss' Code. So, by the N. Y. R. S. vol. i. 768, sec. 6. 9, no person within the state is chargeable as an acceptor on a bill of exchange, unless his acceptance be in writing, signed by himself or his lawful agent; and the holder may require the acceptance to be upon the bill, and a refusal to comply will be a refusal to accept. An acceptance in writing, if not on the bill, does not bind, except it be in favour of the person who, on the faith of it, received the bill. (Ibid. sec. 7.) So, an unconditional promise in writing to accept the bill, before it be drawn, is an acceptance in favour of the person who receives the bill on the faith of it, for a valuable consideration. (Ibid. sec. 8,) and every drawee who refuses to return a bill, within twenty-four hours, to the holder, shall be deemed to have accepted it. (Ibid. sec. 11.) See, also, Bank of Michigan v. Ely, 17 Wendell, 508. The statute law of Missouri has followed the provisions in the N. Y. statute as to acceptance. Revised Statutes of Missouri, 1835, p. 97.

↳ Marius, 17. 21. Molloy, b. 2. c. 10. sec. 21.

• 2 Brod. & Bing. 165.

(1) A bill addressed to a person by name, may be accepted by his wife in her name, and the acceptance will bind the husband if he admit his liability. The acceptance satisfies the statutes 1 and 2 Geo. IV. c. 78, which require acceptances to be in writing. Lindus v. Bradwell, 5 M. G. & Scott's R. 583.

(2) But see Clarke v. Gordon, 8 Rich. R. 811.

who took the bill on the credit of it. In Coolidge v. Payson,b all the cases were reviewed, and it was held that a letter, written within a reasonable time before or after the date of the bill, describing it, and promising to accept of it, is, if shown to the person who afterwards takes the bill upon the credit of that letter, a virtual acceptance, and binding upon the person who makes the promise. The same doctrine was also held by the Supreme Court of New-York, in Goodrich v. Gordon; and it was there decided, that if a person, in writing, authorizes another to draw a bill of exchange, and stipulates to honour the bill, and the bill be afterwards drawn, and taken by a third party, on the credit of that letter, it is tantamount to an acceptance of the bill. The doctrine rests upon the decision of Lord Mansfield, in Pillans and Rose v. Van Mierop and Hopkins, and in Pierson Dunlop, where he laid down the broad principle, that a promise to accept, previous to the existence of the *bill, amounted to *85 an acceptance. It is giving credit to the bill, and which may be done as entirely by a letter written before, as by one written after the date of the bill. A parol promise to accept a bill already drawn, or thereafter to be drawn, is binding, if the bill be purchased in consideration of the promise. It is an original promise, not coming within the objects or the mischiefs of the statute of frauds; but whether such a valid parol promise to accept a non-existing bill would, in the view

• Miln v. Prest, 4 Campb. Rep. 393. So, a letter of credit, addressed to any person who should make the advance upon the faith of the letter, is an available promise in favour of the person making the advance; and it is considered as available if it be a general letter of credit in favour of any person who makes the advance on the faith of it. These letters of credit are treated as in the nature of negotiable instruments, and the party giving such a letter holds himself out to all persons who should advance money on bills drawn on the same, and upon the faith thereof, as contracting with them an obligation to accept and pay the bills. Lawrason v. Mason, 3 Cranch, 492. Boyce v. Edwards, 4 Peters, 121. Adams v Jones, 12 id. 207. Carnejie v. Morrison, 2 Metcalf, 381. Story on Bills, 538 to

555. 1 Bell's Com. 371.

b 2 Wheat. Rep. 66. See, also, to S. P. 1 Peters' U. S. Rep. 246. 284, and 4 ibid. 111. 121. 2 Gallison, 233. Bayard v. Lathy, 2 M’Lean, 462.

15 Johns. Rep. 6. S. P. P. in Parker v. Greele, 2 Wendell, 545.

v. Campbell, 1 Bailey's S. C. Rep. 522.

Read v. Marsh, 5 B. Monroe, 10.

3 Burr. Rep. 1663. Cowp. R. 571.

Kendrick

Carnejie v. Morrison, 2 Metcalf's R. 381.