time presentment

should be made

for acceptance.

It has been said, that the question what is a reason- 2dly, At what able time, must depend on the particular circumstances of the case; and that it must always be for the jury to determine, whether any laches are imputable to the plaintiff'; and this rule appears to have been adopted in the more recent cases applicable to this subject, but from other cases it should seem that reasonable time is to be taken as a question of law dependent 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

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 undoubtedly is, that which I have stated, and Eyre, C. J. says, in Muilman v. D'Éguino, (2 Hen. Bla. 565) that it is, under all circumstances, a question for the jury to determine whether such a bill was presented in 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 holder were to lock it up for any length of time, he would be guilty of laches. Is this, therefore, a case, in which the plaintiff can be said to lock up this bill for any length of time. If we were to grant a new trial, the result would come at the last to this: it would be a question for the jury, whether there has been a default to present a bill within a reasonable time. That question has already been left to the jury, and they have found that the bill was presented in a reasonable time. We think, as the matter stands, it is perfectly right.-Rule refused. 1 Per Eyre, C. J. in Muilman v. D'Eguino, 2 Hen. Bla. 569.-Boehm v. Sterling, 7 T. R. 425.

* Muilman v. D'Eguino, 2 Hen. Bla. 565. ante 208 n. 1. and Fry . Hill, 7 Taunt. 397. ante 210. n. 1.

3 Darbishire v. Parker, 6 East. 12, 13.-Bayl. 100.

In Tindal v. Brown, 1 T. R. 167.

Appleton v. Sweetapple, Bayl. 65. n. c. et post. See also Darbishire v. Parker, 6 East, 12, 13.-Parker v. Gordon, 7 East. 385.

2dly. At what time presentment for acceptance should be made.

Sdly. Mode of presenting for acceptance.

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 2.

The presentment should be to the drawee himself, or to his authorised agent, for otherwise the drawer or indorsers will not be chargeable. It has been said that ex rigore, the drawee ought to accept the bill immediately on, presentment, or refuse to do so, and he is not allowed three days for deliberation by the custom of merchants; 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 twenty-four hours, or until the next day after the presentment, unless in the interim he accept or declare a determination not to accept '; but it is

'Mar. 112.-Parker r. Gordon, 7 East. 385.

2 Vid. post, as to what will excuse the want of giving notice of nonacceptance, or not presenting for payment; and sce Patience v. Townly, 2 Smith's Rep. 223, 4.

3 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 he, 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.

* Com. Dig. tit. Merchant, F. 6.—Marius, 15, 16. and see Hamburgh Ordinance.

Ingram v. Forster, 2 Smith's Rep. 243, 4.-Bellasis v. Hester, 1 Lord Raym. 281.-Mar. 62.-Beawes, pl. 17.—Mal. b. 3. c. 5. s. 1. Com. Dig. Merchant, F. 6.-Molloy, b. 2. c. 10. pl. 16.

Bellasis v. Hester, Lord Raym. 281. Per Treby, C.J. The party may have the whole day to view the bill, and that is allowed him by the law.

Marius, 15. No three days for acceptance-twenty-four hours for acceptance, But if the party to whom the bill of exchange is directed be a merchant well known unto you, and when the bill is pres

said that this must not be done if the post go out in 3dly, Mode of the interim'.

If the drawee of a bill cannot be found at the place where the bill states him to reside, and it appear that he never lived there, or has absconded, the bill is to be considered as dishonoured; but if he have only removed, it is incumbent on the holder to endeavour to find out to what place he has removed, and to make the presentment there'; and he should in all cases

sented to him to accept he shall desire time to consider on it, and so shall intreat you to leave the bill of exchange with him, and to come to him the next day, (provided the post do not go away in the interim) and that then he will give you answer whether he will accept or not, herein he doth demand nothing of you but what is usually allowed between merchants known one to another; for, according to custom of merchants, the party on whom the bill is drawn, may have four and twenty hours time to consider whether he will accept the bill or not; but that time being expired, you may, in civility, demand of the party on whom your bill is drawn, the bill of exchange you left with him to be accepted, if so he pleased, if he then say that he hath not as yet accepted it, and that he would desire you to call for it some other time, or the like; the four and twenty hours being expired, it is at your choice to stay any longer or not, and you may then desire a notary to go to the dwelling-house of the party that hath the bill and demand the bill of exchange of him, accepted or not accepted, and in default of present delivery thereof, you may cause protest to be made in due form. But though this may be lawfully done, yet, notwithstanding, amongst merchants which do know one another, they do not usually proceed so strictly for acceptance, but do leave their bills with the parties to whom they are directed to be accepted, sometimes two or three days, if it be not to their prejudice, as namely, if the post do not depart in the interim; but if the post is to depart within two or three days, then it is a very reasonable thing, and which men, that know the custom of merchants, will not omit to demand their bills, accepted or not accepted, so that they may give advice thereof, by the first post after the receipt of their letters, unto their friend, who sent them the bill or who delivered the value thereof; for it is to be noted by the way."

In Ingram v. Forster, 2 Smith's Rep. 242. Upon the question whether more than twenty-four hours may be allowed to the drawee to determine whether he will accept, the court appear to have considered that if more than that time be given, the holder ought to inform the indorsers thereof.

'Mar. 62.-Com. Dig. tit. Merchant, F. 6.

3 Collins. Butler, Stra. 1087. The maker of a note shut up his house before the note became due, and in an action against the indorser, one question was, whether the plaintiff had shewn sufficient in proving that the house was shut up? and Lee, C. J. thought not; but that he should have given in evidence that he had enquired after the drawer, or attempted to find him out. See also Bateman v. Joseph, 12 East. 433, in which Lord Ellenborough left it to the jury, whether the plaintiff had used due diligence to find the party's residence, that being a question of fact.

presenting for ac ceptance.

3dly, Mode of presenting for acceptance.

make every possible enquiry after the drawee, and if it be in his power, present the bill to him; though it will be unnecessary to attempt to make such a presentment, if the drawee has left the kingdom, in which case it will be sufficient to present the bill at his house', unless he have a known agent when it should be presented to him *. If on presentment, it appear that the drawee is dead, the holder should enquire after his personal representative, and if he live within a reasonable distance, should present the bill to him. When a bill is left for acceptance, and the drawee, after its remaining in his possession twenty-four hours, requires time to consider of it, and the holder grants him that time, it is at least advisable, if not necessary, to give immediate notice to the indorsers and drawer, of the particular circumstances *.

'Cromwell v. Hynson, 2 Esp. Rep. 211. Indorsee against the indorser of a foreign bill. When the indorsement was made, Hynson (a master of a ship) was in Jamaica, where the bill was drawn, but his residence was at Stepney. The bill was presented for acceptance, dishonoured, and protested, and then sent to Hynson's house for payment, with notice of non-acceptance. Hynson was not then in England, but the bill was shewn to his wife, and the circumstances stated to her. It was urged, 1st. that notice should have been sent to Jamaica. 2dly. that the demand was not sufficient. But Lord Kenyon over-ruled all the objections, and the plaintiff had a verdict.

The King v. The Inhabitants of Merton, 4 M. & S. 48. affords information upon this subject. In order to establish a settlement by apprenticeship, it was proved, that the indenture was only of one part, and that upon application to the pauper, who was then ill and soon afterwards died, to know what had become of it, he declared, that when the indenture was given to him he burnt it; and it was also proved, that enquiry was made of the executrix of the master, who said she knew nothing about it; and it was held that this proof was sufficient to let in proof of parol evidence of the contents of the indenture. Lord Ellenborough, C. J. The making search and using due diligence are terms applicable to some known or probable place or person, in respect of which the diligence may be used. See also

Carth. 509.

2 Id, ibid. Philips v. Astling and another, 2 Taunt. 206.

3

4

Molloy, b. 2. c. 10. s. 34.-Poth. pl. 146.

Ingram. Forster, 2 Smith's Rep. 243, 4. ante, 213-Molloy, b. 2. c. 10. pl. 16.

ceptance; and 1st,

ACCEPTANCE may be defined to be the act by which Sect. 2. Of acthe drawee evinces his consent and intention to com- by whom it may ply with, and to be bound by, the request contained be made. in a bill of exchange directed to him, or, in other words, it is an engagement to pay the bill when due'. This engagement is made by the drawee of the bill, or by some other person, supra protest, to the drawer or some of the other parties, either before the bill is drawn, or afterwards, and it may be verbal or in writing; and is either absolute, partial, or conditional, and when made after the drawing of the bill, is according to or varying from its tenor. We will consider these points in their natural order.

be accepted.

When the holder of a foreign or inland bill presents 1st, By whom to it for acceptance, he is entitled to insist on such an acceptance by the drawee as will subject him at all events to the payment of the bill according to the tenor of it; and consequently such drawee must have capacity to contract, and to bind himself to pay the amount of the bill, or it may be treated as dishonoured. An acceptance may, as has been already observed in a preceding chapter, be made by an agent; but in such case, it will be incumbent on the agent, if required, to produce his authority to the holder, as, if he do not, the holder may consider the bill as dishonoured, and act accordingly. And it may perhaps be doubtful, whether the holder is in any case bound to acquiesce in an acceptance by agent, as it multiplies the proof which he will be obliged to adduce, in case he should be compelled to bring an action on the bills.

There cannot be a series of acceptors or two distinct acceptors of the same bill; it must be accepted by the drawee, or, failing him, by some one for the ho

Per Lawrence, J. in Clarke v. Cock, 4 East. 72.

'Mar. 2d edit. 22.

4

'Ante, 30 to 39.

Beawes, pl. 87.

'Coore v. Callaway, 1 Esp. Rep. 116.-Richards v. Barton, id. 269.