would have been transferred to him, and he only could have maintained this action against the acceptor; but since he has not filled up the blank space, his intention is presumed to act as servant only to Clark, whose name was put there; that on payment thereof, a receipt for the money might be written over his name, and therefore the action is maintainable by Clark (1). The payee of a bill of exchange indorsed it specially to the plaintiffs, and immediately after the special indorsement, the defendant indorsed the bill and then the plaintiffs indorsed it; it was held, that the defendant's indorsement was equivalent to a new drawing by him, and that he was liable to be sued upon the bill by the plaintiffs (m). Promissory notes and bills of exchange are frequently indorsed in this manner, "Pay the money to my use," in order to prevent their being filled up with such an indorsement as passes the interest. Per Lord Hardwicke, Ch., in Snee v. Prescott, 1 Atk. 249. "A bill, though once negotiable, is certainly capable of being restrained. I remember this being determined on argument. A blank indorsement makes the bill payable to bearer; but by a special indorsement the holder may stop the negotiability." Per Lord Mansfield, C. J., Ancher v. Bank of England, Doug. 639. These positions were recognized in Sigourney v. Lloyd, 8 B. & C. 622, where a bill payable to the order of A. was indorsed by A. to B., and then D. indorsed thus: "Pay to C. or his order for my use;" it was held, that this indorsement was restrictive, and that the property in the bill remained in B. On error, in Exch. Chamber, judgment was affirmed, 5 Bingh. 525. It is not necessary that in a special indorsement the words "or order" should be subjoined to the name of the indorsee; for if a bill be drawn payable to order, the negotiability of the bill will not be restrained by the omission of the words " or order" in the indorsement, as will appear from the following cases : Upon a case made at nisi prius, coram Pratt, C. J., it appeared, that the plaintiff had declared on an indorsement made by A., whereby he appointed the payment to be to B. or order, and upon producing the bill in evidence, it appeared to be payable to A. or order, but the indorsement was in these words, "Pay the contents to B.;" and therefore it was objected, that the indorsement, not being to order, did not agree with the plaintiff's declaration; but upon consideration, the whole court were of opinion, it was well enough, that being the legal import of the indorsement; and that the plaintiff might upon this have indorsed it over to another, who would be the proper order of the first indorser (n). Before this decision, the same doctrine had been laid down with respect to a promissory note, in the case of More v. Manning, Comyns' R. (1) Clark v. Pigot, Salk. 126, and 12 Mod. 192. (m) Penny v. Innes, 1 Cr. M. & R. 439. See Allen v. Walker, 2 M. & W. 317. (n) Acheson v. Fountain, Str. 557. or 311, viz. that where a note is drawn payable to order, and the payee indorses it to A. (omitting the words "or order"), A. has (notwithstanding such omission) all the interest in the note, and may indorse it to B., who, upon such indorsement, may maintain an action against the maker. So where a foreign bill of exchange was drawn by A. on B. (o), payable to C. or order, and accepted by B., and C. indorsed it to D. without adding the words "or order," and D. afterwards indorsed it to E., who brought an action against B. the acceptor for nonpayment; evidence having been adduced at the trial of the usage of merchants with respect to indorsements of bills payable to order, where the words order" were omitted in the indorsement, which evidence was contradictory, some merchants declaring that the omission did not make any difference, others, that it restrained the negotiability of the bill, and made it payable to the indorsee only; the jury found a verdict for the defendant.-On a motion for a new trial, on the ground that evidence of the usage ought not to have been allowed; that the custom of merchants was part of the law of England, and that the law of England was fully settled upon this point: the court were unanimous that a new trial ought to be granted; and Lord Mansfield, C. J., said, he was clear that the evidence ought not to have been admitted, for the law was fully settled in the cases of More v. Manning and Acheson v. Fountain, ante. The other judges concurred; and Denison, J., said, that there was not any instance of a restrictive limitation, where a bill was originally made payable to A. or order; that he had never heard of an indorsement to A. only, and that in general the indorsement followed the nature of the thing indorsed. As a bill of exchange payable to A.'s order, is, by the custom of merchants, payable to A. if he does not make any order; so, by an indorsement of a bill of exchange to the order of A., A. is entitled to payment if he makes no order. A bill of exchange was drawn, payable to I. S., who indorsed it in this manner : 66 Pay the contents of the bill unto the order of Mr. Fisher." Fisher brought an action as indorsee, averring he had made no order to receive the money. The defendant demurred to the declaration, supposing that Fisher could not maintain the action, because the indorsement was not to him, but to his order; sed per Curiam: The action is well brought against the indorser; for among tradesmen this form of indorsement is commonly used, although it is intended to be made payable to the person whose order is mentioned (p). In order to derive a legal title to a bill of exchange payable to order, it is necessary for the indorsee in an action against the acceptor, if put in issue, to prove the handwriting of the payee or first indorser (q); (o) Edie v. East India Company, 2 Burr. 1216, and 1 Bl. R. 295, recognized since the new rules, which do not make any alteration in the law merchant, in Cunliffe v. Whitehead, 3 B. N. C. 830. (p) Fisher v. Pomfret, Carth. 403. and, therefore, though the bill may come into the hands of another person of the same name with the payee, yet his indorsement will not confer a title, although the payee be not particularly described in the bill; and such an indorsement, if made with the knowledge that he is not the person to whom the bill was made payable, is a forgery, through the medium of which a title cannot be derived (r). With respect to bills payable to bearer, or bills payable to order, but indorsed in blank, both which pass by delivery, it is now clear law that if an assignee take them, without any knowledge of defect of title, bona fide, and for a valuable consideration, such assignee is entitled to payment (s). "I believe," said Lord Denman, in Arbouin v. Anderson, "we are all of opinion that gross negligence only would not be a sufficient answer by the defendant where the plaintiff has given consideration for the bill. Gross negligence may be evidence of mala fides, but it is not the same thing. We have shaken off the last remnant of the contrary doctrine.' proposition, as far as it affects bills payable after sight, or after date, and not on demand, must be understood with this restriction, viz. that the party seeking to recover on such bill has not taken it after it became due: for in that case he takes the bill subject to all its equities. See ante, p. 376. This A banker is bound to pay a check drawn by a customer within a reasonable time after he (the banker) has received sufficient funds belonging to the customer (t), and the customer may maintain an action of tort against the banker for refusing payment of a check under such circumstances, and is entitled to have a verdict for nominal damages, although he cannot prove that he has sustained any actual damage. This decision rests entirely on the consideration that the action, an action on the case, was founded on a contract, not on a general duty implied by law. The contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort (u). Where a customer of the Bank of England was in the habit of making his acceptances payable at the Bank, and one of such acceptances being presented for payment at eleven o'clock in the morning was dishonoured, for want of assets, and was presented again by a notary at six in the evening, when the same answer was given by a person stationed for that purpose; it was held, in an action for dishonouring the bill, that the Bank, although they had, before six o'clock, received assets, were not bound to pay the bill, it being after the usual hours of business (x). See (r) Mead v. Young, 4 T. R. 28; per three justices, Kenyon, C. J. diss. Stebbing v. Spicer, 19 L. J., C. P. 28. (s) Arbouin v. Anderson, 1 Q. B. 498; Raphael v. Bank of England, 25 L. J., C. B. 33; S. C. 17 C. B. 161; Carlon v. Ireland, 5 E. & B. 765. (t) Marzetti v. Williams, 1 B. & Ad. 415. (u) Per Tindal, C. J., delivering the judgment of the Exchequer Chamber in Boorman v. Brown, 3 Q. B. 526. See also Rolin v. Steward, 14 C. B. 595. (x) Whitaker v. Bank of England, 1 Cr. M. & R. 744. Of the Party in whom the Right of Transfer is vested.—Where the defendant drew a bill of exchange upon A., payable at so many days' sight to B. or order, for the use of C., it was held that the right of transfer was in B., C. having an equitable title only (y). It is the constant usage of merchants for administrators to indorse and assign over bills of exchange made payable to their intestate's order (z). But where an indorsement is necessary, and the testator has written his name, but not delivered the bill, the executor cannot complete the indorsement by delivery (a). Where a bill of exchange has been indorsed by the payee to A. and B. as executors, they may declare as such in an action against the acceptor (b). If 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 indorsed by A. and B., such being the usage of merchants (c); but in such case, if the bill be indorsed by A. in the name of himself and B., and afterwards the drawee accepts the bill so indorsed, it is not competent to him to object, that the bill has not been regularly indorsed (d). As the property in a bill of exchange passes to the holder, when he pays the consideration, and as indorsement is merely evidence of the transfer, a trader, who before his bankruptcy has parted with a bill for a valuable consideration, but omitted to indorse it, may indorse it after his bankruptcy and such indorsement 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- Non-payment and Notice thereof, p. 399. Protest, p. 399. Where bills of exchange are drawn payable at usance, 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. 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. 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. In an action against the drawer of a bill of exchange, the evidence being that the bill had been (y) Evans v. Cramlington, Carth. 5; (a) Bromage v. Lloyd, 1 Exch. 32. demanded from the acceptor on the day preceding the last day of grace, the plaintiff was nonsuited. Wiffen v. Roberts, 1 Esp. N. P. C. 262. Kenyon, C. J.: "In cases of foreign bills of exchange, the custom is that three days are allowed for payment of them (e), 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 on the last of the three 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 the drawer will not be chargeable." Good Friday is to be considered as a Sunday or Christmas-day (f). By stat. 7 & 8 Geo. IV. c. 15, s. 2, bills of exchange becoming due on a day appointed by proclamation for fast or thanksgiving are payable on the day preceding: and by sect. 3, Good Friday, Christmas-day, and every such day of fast or thanksgiving, is to be considered, as regards bills of exchange and promissory notes, as Sunday. 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. A foreign bill of exchange was drawn on C. and Co. at Liverpool, payable to A. in London. C. and Co. having refused to accept, it was accepted by B. in London, for the honour of the payee, if regularly protested and refused when due. It was held, in an action against B., that under the special form of the acceptance, a presentment for payment to C. and Co. at Liverpool, a refusal by them, and a protest there, were necessary, and therefore that the bill was properly presented for payment there on the day it became due (g). Days of grace are allowed also on promissory notes, and on bills or notes payable by instalments (h). There is a distinction between bills payable at a certain time after date, and bills payable at a certain time after sight. The holder of a bill payable after date is bound to use all due diligence, and to present such bill at its maturity, but in case of a bill payable after sight, the holder may put the bill into circulation before he presents it (i); or, (e) Per merchants in evidence at Guildhall, Trin. 7 Will. III. coram Holt, C. J., Tassel v. Lewis, Lord Raym. 743. 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. (f) Stat. 39 & 40 Geo. III. c. 42. (i) Per Gibbs, C. J., in Goupy v. Harden, |