same; but the said A B did not then, or at any time since, accept or pay the same, but then and there wholly refused so to do; of all which said several premises, the said E afterwards, viz. on &c., at &c., had notice; by reason whereof the said E became liable, and in consideration thereof, then and there promised the plaintiff to pay him the said sum of money specified in the said bill, when thereunto afterwards requested; yet, though often requested, &c.

NOTE. Where a blank is left in a bill of exchange for the name of the payee, any bona fide holder may fill the blank with his own name; the drawer impliedly gives an authority for this purpose, by leaving the blank. 2 M. & S. 90.

If non-acceptance is alleged in the declaration, there is no necessity to aver a presentment for payment; the right of action commences immediately after the refusal to accept. 3 Johns. R. 202.

Though it is unnecessary to state a protest on inland bills of exchange, if stated, it must be proved. See 2 Esp. R. 550.

In an action against the drawer of a bill of exchange, it is necessary to show either that the bill was presented, and that the drawee refused to accept or pay; or that he was not found; or that he had left the country; or that, if the defendant had paid the bill, he would have had no remedy against the drawee. Bayley, 108.

So in an action on a promissory note against an indorser.

These excuses for not presenting the bill, must be alleged according to the fact, for the allegation of one of them may not be supported by proof of another. Ibid. 2 D. & E. 719.

If the holder of a bill neglect to give due notice to the drawer or indorser, of non-acceptance or non-payment, this neglect may be waived by such drawer or indorser; and a subsequent promise by either, with a full knowledge of all the facts, will cure the omission as respects him. See 7 East's R. 236; 5 Johns. R. 375.

Averments to excuse the want of notice of refusal to ac cept, &c.

That drawee had no effects of drawer in his hands.

And the plaintiff avers, that at the time of making the Said bill of exchange, and from thence, until and at the time when the same was so presented and shown to the said A B for his acceptance thereof as aforesaid, the said A B had not in his hands any effects of the said D nor had he received any consideration from the said D for the acceptance or payment by him, the said A B, of the said bill of exchange, nor hath the said D sustained any damage, by reason of his not having had notice of the nonacceptance by the said A B of the said bill of exchange; of all which, the said D thereafterwards, viz. on &c., at &c., had notice; and by reason thereof become liable, &c.

NOTE. What will and what will not excuse the want of presentment and notice. See Law Summary, 196.

Averment to excuse want of presentment for acceptance. That drawee could not be found.

And the plaintiff avers, that afterwards, and before the payment of the said sum specified in the said bill, viz. on &c., at &c., and at divers other times, between that day and the time when the said bill became due, and also when the said bill so became due, viz. on &c., at &c., diligent search and inquiry was made after the said A. B. at &c. and elsewhere, in order that the said bill might be presented to the said A B for his acceptance and payment thereof; but that the said A B could not, on such search and inquiry, be found; nor hath the said A B at any time hitherto accepted the said bill, or paid the said sum of money therein specified; of all which the said D afterwards, viz. on &c., at &c., had notice and thereby became liable, &c. Averment to excuse want of presentment for payment.

That defendant had dispensed with presentment for payment. And the plaintiff saith, that afterwards when the said bill of exchange became due, viz. on &c., at &c., he was ready and willing to present the said bill to the said A B for payment thereof, and to demand of him the sum therein specified, and would have presented the same and demanded payment thereof accordingly, viz. on &c., at &c., whereof the said E then and there had notice; but the said E then and there requested the plaintiff not to present the said bill to the said A B for payment thereof, and then and there wholly dispensed with, and discharged the plaintiff from the presentment of the said bill to the said A B for payment thereof; by means whereof, after the said bill became payable according to the tenor thereof, viz. on &c., at &c., the said E became liable, and in consideration, &c.

NOTE. On the subject of presentment, for payment, refusal to pay and notice, &c. See Law Summary, 211. (2d Edition.)

If a bill is drawn payable on demand, or at a certain time from date, there is no obligation on the holder to present it for acceptance; but when it becomes due, he may present it for payment, and if not then paid, he may at once, or where protest is necessary, after protest and notice, actual or constructive, proceed against the parties who precede him. self on it. But if it is presented immediately by the holder, as soon as it comes to his hands, which is the better course, and is then refused acceptance, he is under no obligation to wait till the bill is payable, but may call on the other parties at once for payment.

But with regard to bills payable at or after sight, the rule is, to use reasonable diligence in presenting them for acceptance; and, as it is the interest of the holder, to get his money as soon as he can, and this depends upon the time of presentment, it might naturally be supposed, that there would be little need for any regulation in this respect. Questions however not unfrequently arise, whether the holders of such bills, have used reasonable diligence in presenting them for acceptance. And it seems, in general, if the holder should lock up the bill, and keep it by him a considerable time, without presenting it for acceptance, there would be such laches as would discharge the drawer. But, if instead of presenting it or locking it up, he were to negotiate it, and it should pass from hand to hand a long time before presentment for acceptance, there might be no such laches. See 7 Taunt. 162, 397; 2 Hen. Bl. 565.

A bill should be treated as dishonored, if not accepted within twentyfour hours after sight; but, if expressly refused acceptance within that time, the holder need not wait for their expiration.

An agreement to accept a bill not in existence, is not an acceptance. See, however, 4 Camp. 393. But a promise to accept a bill already drawn, is an acceptance. 3 Bur. 1669; 5 East, 521.

If a bill payable after date, is presented for acceptance, and this is refused, though the holder was under no obligation to present it until due, yet in that case he must give immediate notice to such of the parties, as he means to look to for payment. See Chitty on Bills, 196, 197.

A bill or note payable at a third person's house, is dishonored by a refusal there. 1 Esp. N. P. C. 3.

Where a place of payment is mentioned in the body of a bill or note, it must be presented there for payment; but if the place is merely mentioned in a memorandum at the foot of the note, it is unnecessary; because the memorandum constitutes no part of the contract. 4 M. & S. 525; 16 East, 110; 5 Taunt. 30.

The jury may presume from part payment of a note after it is due, or from a promise to pay, that the note has been properly presented and notice given; and in cases where a protest is necessary, are at liberty to infer, that a protest has been regularly made. See 13 East, 417; 1 Taunt. 12.

A promise to accept a bill to be drawn afterwards, is an acceptance as respects any person who is led by such promise to take the bill. See Cowp. 572; 1 East, 98; 4 East, 57.

Where a bill is payable in parts, in an action against the drawer, it is recommended, in declaring on one of the parts, to allege that the others have not been paid. But this, if necessary, can be so only because of the expression in the bill, which is drawn in setts or parts, which are payable only in case the other parts are not paid. For otherwise, there can be no necessity for any such allegation, since all of them together, constitute but one order for the payment of a certain sum of money; and when one is accepted and paid, the rest are satisfied.

Drawer against acceptor. The bill paid after protest, by a third person to whom the drawer was obliged to pay the principal with charges, &c.

For that the plaintiff at &c., in parts beyond seas, viz. on &c., at &c., made his certain bill of exchange of that date, directed to the said D, and thereby requested the said D at wo usances, viz. two calender months after the date thereof, to pay to one E F, or order, the sum of &c., value received,

which said bill the said plaintiff then and there delivered to the said E F, and the said E F thereafterwards on the same day, indorsed and delivered the said note to one G H, which said bill the said D afterwards, viz. on &c., at &c., upon sight thereof, accepted according to the usage of merchants; and the plaintiff avers, that afterwards, viz. on &c., at &c., the said G H caused the said bill so accepted and indorsed as aforesaid, to be presented to the said D for payment thereof, and then and there required the said D to pay the sum of money therein specified, according to the tenor and effect of the said bill, and of his acceptance thereof, and of the said indorsements thereon; but the said D did not then or at any other time whatsoever, pay to the said G H the sum of money specified in the said bill, but then and there wholly refused so to do; whereupon the said bill of exchange afterwards, viz. on &c., at &c., was protested for the nonpayment thereof; and afterwards, viz. on &c., at &c. one K L appeared before M N, then being a notary public, by lawful authority admitted and sworn, dwelling at &c., and the same by whom the said bill of exchange was so protested, and then and there declared before the said notary, that he would pay the said bill under the said protest, for the honor and on the account of the plaintiff, the drawer of the said bill, holding the said drawer and the said acceptor, and all others whom it might concern, always obliged unto him, the said K L, for his reimbursement; and thereupon the said K L then and there paid the said bill, according to his said declaration, together with the charges of protest, amounting to the sum of &c., and afterwards, to wit, on &c. at &c., the said K L returned the said bill so protested, to the plaintiff; and the said plaintiff was then and there obliged to pay, and did pay to the said K L for the said bill, and for the exchange and re-exchange of the money therein contained, and the charge of protest, commission, and other charges attending the said non-payment of the said bill, a large sum of money, viz. the sum of &c., of all which premises the said D afterwards, viz. on &c., at &c., had notice, and by reason thereof became liable, and in consideration thereof, then and there promised the plaintiff to pay him the said last mentioned sum of &c., (so paid to the said KL by the plaintiff as aforesaid,) when thereunto afterwards requested; yet, though often requested, &c.

NOTE. If a bill drawn on two or more, is accepted by one only, or if it is accepted for part only of the sum specified, or if the drawee cannot

be found it should be protested for non-acceptance. Com. Dig. Merchant, (F. 8.)

Drawer v. Acceptor, on bill payable to plaintiff or order.

For that the plaintiff, on &c. at &c., made his certain bill of exchange of that date, directed to the said D, and thereby then and there requested the said D, three months after the date thereof, to pay the plaintiff or his order, the sum of &c., for value received, which said bill, the said D afterwards, viz. on &c., at &c., upon sight thereof accepted; by means whereof the said D became liable, and in consideration thereof, then and there promised the plaintiff to pay him the sum of money specified in the said bill, according to the tenor and effect of the said bill, and of his said acceptance thereof; yet, though the said three months have long since elapsed, and though often requested, the said D hath never paid, &c.

NOTE. Where a bill is payable to the drawer's order, it is not unusual to insert an averment, that the drawer made no order, but this is unnecessary. Bayley, 190; 5 East's R. 476.

Drawer v. Acceptor. On a bill taken up by the drawer after acceptance.

For that the plaintiff, on &c. at &c., made his bill of exchange of that date, directed to the said T, and thereby requested the said T, three months after the date, thereof, to pay Mr. CE or order, the sum of &c., for value received, and then and there delivered the said bill to the said C E, which said bill the said T, thereafterwards, viz. on the same day, upon sight thereof, accepted; and the plaintiff avers, that afterwards when the said bill became due, according to the tenor and effect thereof, viz. on &c., at &c., the said bill was presented to the said T for payment thereof, and the said T was then and there requested to pay the sum of money specified therein, according to the tenor and effect of the said bill, and of the said T's acceptance thereof; but the said T did not pay the said sum, nor hath he since paid it, but then and there wholly refused to pay the same; and thereupon the said bill was then and there returned to the plaintiff for non-payment thereof, and the said plaintiff was then and there forced to pay to the said CE (or other holder, if the fact be so) the sum specified in the said bill; whereof the said T had notice, and by reason thereof became liable, and in consideration thereof then and there promised the plaintiff, to pay him the sum of money specified in the said bill, when thereunto afterwards requested; yet, though often requested, &c.