owner, and may sue and recover as against prior parties, though there be on it subsequent endorsements, and no receipt or endorsement back to him, and he may strike out the subsequent names.a To maintain a suit against the endorser, the holder must show, as we have seen, due demand of the maker or acceptor, or a presentment for acceptance, and due notice to him of the default; and he need not prove any prior endorsement, nor the hand of the drawer. An endorsement of a note impliedly admits the signatures of the antecedent endorsers to be genuine. But in the suit against the acceptor, the holder need not show notice to any other person. The acceptor is liable at all events. Receiving part from the drawer or endorser is no discharge of the acceptor. Giving time to the drawer will not discharge the acceptor of an accommodation bill. Nothing short of the statute of limitations, or payment, or a release, or an express declaration of the holder, will discharge the acceptor. He is bound, like the maker of a note, as a principal debtor. His ac

Dugan v. United States, 3 Wheat. Rep. 172. Norris v. Badger, 6 Cowen's Rep. 499. Huie v. Bailey, 16 Louisiana R. 213.

Critchlow v. Parry, 2 Campb. N. P. Rep. 182. Story on Promissory Notes, 466, and cases there cited. By the law of Virginia, Kentucky, Indiana and Illinois, the holder of a promissory note must make every reasonable effort, and due and legal diligence, to recover of the drawer, be. fore he can sue the endorser, on the ground of non-payment and notice. Demand on drawer, and due notice to endorser, is not sufficient. The legal means against drawer must first be resorted to. In Georgia, the endorser is held bound as a surety without any previous demand and notice, though this departure from commercial usage is not to apply to notes negotiated at any incorporated bank, or deposited there for collection. The endorser is like. wise discharged, if, after a request upon the holder for that purpose, he does not, within three months, proceed to collect the debt. Statute of Georgia, December 26, 1826. 2 Peters' U. S. Rep. 338, note. Ibid. 345. See, also, to the same point, United States Bank v. Tyler, 4 ibid. 366. Johnson v. Lewis, 1 Dana's Ken. Rep. 182. Saunders v. O'Briant, 2 Scammon's R. 369.

Accoumitaim Accepta not

ceptance is evidence that the value of the bill was in his hands, or had been received by him from the drawer. He is liable to the payee, to the drawer, and to every endorser. He is the first person, and the last person liable, and there is no difference in this respect between an acceptance given for accommodation, and

liable to draw one given for value. He is liable to an innocent holder,

er. ()

though the drawer's hand be forged; and in the suit against him it is not necessary to prove any hand but

that of the first endorser.b Though a bill paya*115 ble to a fictitious *payee, be strictly void, yet, if the fact was known to the acceptor, he may be sued by an innocent endorsee, equally as upon a note payable to bearer. And if the holder of a bank bill cuts it into two parts, for the sole purpose of transmitting it by mail with greater safety, this does not affect his rights upon the bill, and he may recover upon the production of only one of the parts, provided he shows that he is owner of the whole, and accounts for the absence of the other part. The parts of a divided bank bill are not separately negotiable.

The acceptor cannot set up as a defence, that when he accepted the bill the drawer was an uncertificated bankrupt, and that all his property had passed to his assignees. Pitt v. Chappelow, 8 Mee. & Wels. 661.

Simmonds v. Parminter, 1 Wils. Rep. 185. Dingwall v. Dunster, Doug. Rep. 247. Smith v. Chester, 1 Term Rep. 654. Pentum v. Pocock, 5 Taunt. Rep. 192. Farquhar v. Southey, 2 Carr. and Payne's N. P. Rep. 497. Lambert v. Sandford, 2 Blackf. Ind. Rep. 137.

• Gibson v. Minet, 1 H. Blacks. Rep. 569. S. C. 3 Term Rep. 481.

d Patton v. Bank of S. C. 2 Nott & M'Cord, 464. Martin v. United States Bank, 4 Wash. Cir. Rep. 253. United States Bank v. Sill, 5 Conn. Rep. 106. Farmers' Bank v. Reynolds, 4 Randolph, 186. Bullet v. Bank of Pennsylvania, 2 Wash. Cir. Rep. 172. Hinsdale v. Bank of Orange, 6 Wendell, 378. Contra, Mayor v. Johnson, 3 Campb. R. 324. The owner of the two parts of a note, cut in two for transmission, was allowed to recover in equity the whole amount, upon producing one half part, and show. ing the other lost, and offering an indemnity. Wycoff v. State Bank, 1 Dev.

B. Eq. Cas. 1. See Story on Promissory Notes, 114, 115, where the

(8.) Of the measure of damages.

The engagement of the drawer and endorser of every bill is, that it shall be paid at the proper time and place; and if it be not, the holder is entitled to indemnity for the loss arising from this breach of contract. The general law merchant of Europe authorizes the holder of a protested bill immediately to redraw from the place where the bill was payable, and in the same direct or circuitous way, as the case may be or require, on the drawer or endorser, in order to reimburse himself for the principal of the bill protested, the contingent expenses attending it, and the new exchange which he pays. His indemnity requires him to draw for such an amount as will make good the face of the bill, together with interest from the time it ought to have been paid, and the necessary charges of protest, postage and broker's commission, and the current rate of exchange at the place where the bill was to be demanded or

*payable, on the place where it was drawn or *116

conflicting authorities on this point are noted. In Scotland, a very summary remedy is given to the holder of bills of exchange and promissory notes, protested for non-payment, by allowing the protest to be recorded under an implied consent of the debtor. This authorizes a decree by consent, called a decree of registration, and a summary execution. 1 Bell's Comm. 4. 387. If a negotiable bill be lost, the acceptor or endorser is not bound at law to pay without the production of the bill, even though an indemnity be offered. He is entitled to the actual possession of the bill for his own security. This rule applies equally to the case of promissory notes. But the tender of a sufficient indemnity would enable the holder to recover in equity. Hansard v. Robinson, 7 B. & Cressw. 90. Macartney v. Graham, 2 Sim. R. 285. Davis v. Dodd, 4 Taunton, 602. 4 Price Ech. R. 176. Smith v. Rockwell, 2 Hill's N. Y. R. 482. Smith v. Walker, 1 Smedes & Marshall, Miss. Ch. R. 432. Story on Bills, 522. Story on Promissory Notes, 112. 544-548. The same necessity of indemnity is required by the French law, in the case of a lost or missing bill. Code de Comm. art. 151, 152. Mr. Justice Story shows the diversity of opinion in the United States, in the courts of law, as to the remedy at law on a lost note, but the weight of authority is in favour of the exclusive remedy in equity.

negotiated. The law does not insist upon an actual redrawing, but it enables the holder to recover what would be the price of another new bill, at the place where the bill was dishonoured, or the loss on the re-exchange; and this it does by giving him the face of the protested bill, with interest according to the law of the place where the bill was drawn, and the necessary expenses, including the amount or price of the re-exchange. But the endorser of a bill is not entitled to recover of the drawer the damages incurred by the non-acceptance of the bill, unless he has paid them, or is liable to pay them." Nor is the acceptor liable in ordinary cases, for the extra charges on the re-exchange. He is only chargeable for the sum specified in the bill, with interest according to the rate established at the place of payment. The claim for the re-exchange is against the drawer, who undertakes to indemnify the holder if the bill be not paid, and the re-exchange is the purchase of a new bill on the country where the drawer of the protested bill lives.c

Story on Bills, 470—

* Melish v. Simeon, 2 H. Blacks. Rep. 378. De Tastet v. Baring, 11 East's Rep. 265. Parsons, Ch. J., in Grimshaw v. Bender, 6 Muss. Rep. 157. Code de Commerce, b. 1. tit. 8. art. 177. 186. Pardessus, Droit Comm. t. ii. art. 437. Van Leeuwen's Commentaries, 440. 478. The price of re-exchange by the purchase of a new bill would sometimes render the damages enormous, as fifty per cent., or two hundred per cent. 2. H. Blacks. 378. 3 B. & Puller, 335.

Kingston v. Wilson, 4 Wash. Cir. Rep. 310. Taney, Ch. J., in the case of the Bank of the United States v. the United States, 2 Howard U. S. R. 764, 765. 767. S. P.

Woolsey v. Crawford, 2 Camph. 445. Napier v. Schneider, 12 East, 420. Sibely v. Tutt, 1 M'Mullan's S. C. Rep. 320. In France, the claim for the re-exchange is deemed good against the acceptor. Pothier, Traité du Con. de Change, No. 117. See Story on Bills, 465, n. Each successive party to a bill is liable for damages on its dishonour, according to the law of the place where his contract was made. The drawer, according to the law of the place where he drew the bill, and each endorser, according to the law of the place of their respective endorsements; for each endorsement is a new contract. Story on Bills, 172.

In this country a different practice from that of re-exchange was introduced while we were English colonies, and it has continued to this day. Our usages on this subject form an exception to the commercial law of Europe, and the established rates of damages fixed by usage or by statute in lieu of re-exchange, prevent the necessity and difficulty of proving the price of reexchange. They avoid the fluctuations of exchange, and the occasional rigour of the law merchant.

In New-York, the rule had uniformly been, to allow twenty per cent. damages on the return of foreign bills protested for non-acceptance or non-payment; and the damages were computed on the principal sum, with interest on the aggregate amount of the bill and damages, from the time that notice of the protest was duly given to the drawer or endorser. The mercantile usage was, to consider the twenty per cent. an indemnity for consequential damages, and to require the bill *to *117 be paid at the rate of exchange at the time of return, or a new bill to be furnished upon the same principles. But the Supreme Court considered the twenty per cent. to be in lieu of damages in case of re-exchange, and the demand, with that allowance, was to be settled at the par of exchange. This doctrine was overturned by the Court of Errors, and the holder was held to be entitled to recover, not only the twenty per cent. damages, together with interest and charges, but also the amount of the bill liquidated by the rate of exchange, or price of bills on England, or other place of demand in Europe, at the time of the return of the dishonoured bill, and notice to the party to be charged;

• Hendricks v. Franklin, 4 Johns. Rep. 119. Weldon v. Buck, ibid. 144. Graves v. Dash, 12 Johns. Rep. 17.