Presentment for Acceptance. 1. It is the right of the holder of a bill to present it for, and insist on its acceptance, even so late as the day before it falls due. If not presented for acceptance until the day it falls due, the right to demand acceptance becomes merged in the right to demand payment. If the bill be presented for acceptance before it falls due, it becomes dishonored if acceptance be refused; and notice must be forth with given to the parties whom it is intended to charge. And suit may at once be instituted against the drawer, and against the indorsers. This rule of Commercial law is so general and binding that a statute of a State which forbids a suit from being brought in such a case until after the maturity of the bill, can have no effect upon suits brought in the United States Courts. The requisition of a State statute like this would be a violation of the general commercial law, which a State has no power to impose, and which the courts of the United States would be bound to disregard.3 So also, if the State statute secks to make the right of recovery, in a suit brought in case of non-acceptance, dependant upon proof of subsequent presentment, protest, and notice for non-payment.* Presentment to the drawee is necessary, even though the drawer has requested him not to accept;" but the holder is not bound to present again after refusal to accept and notice given, even though the drawer requests him to do so, and promises that the bill shall be honored." The only cases in which the holder can charge the drawer without presenting the bill for acceptance arise when the relations between the drawer and drawee are such as to constitute the drawing of the bill a fraud upon the holder. When the bill is presented the ac 'Chitty on Bills, (13th Am. ed.,) 309; Goodall vs. Dolley, 1 T. R., 712. See Chapter on notice; Bank of Washington vs. Triplett, 1 Peters, 25; Townsley rs. Sumrall, 2 Peters, 170; Smith vs. Roach, 7 B. Monroe, 17; Landrum es. Trowbridge, 2 Metcalfe, 281. 2Ibid. See also Lucas vs. Laden, 28 Misso., 342; Edwards on Bills, 387; Pilkenton rs. 'Woods, 10 Indiana, 432; Kinney vs. Heald, 17 Ark., 397. 5 Hills. Heap, Dow & R., N. P., 57. See 1 Parsons, N. & B., 338. Hickligg vs. Hardey, 7 Taunt., 312. Smith's Mercantile Law, (Holeumbe & Gholsen's ed.,) 304; 1 Peters, 25. ceptance must be according to its tenor to pay in money. If it be to pay by another bill, it is no acceptance, and the bill should be protested.1 § 2. Before acceptance the drawee is under no liability to accept, unless he has specially contracted to do so, and the holder can not sue him, even though he have funds of the drawer in his hands.2 But an acceptance operates as a full legal assignment of the amount to the holder, and the acceptor is bound to pay it. It has been much debated whether or not a bill before acceptance operates as an assignment when drawn upon funds of the amount it calls for; and it seems to be settled by the authorities that if drawn for the whole amount it operates as an equitable assignment, which will take precedence of any subsequent lien or charge upon them; and that after notice to the drawee will bind him. And it has been so held of a draft nonnegotiable. But when the bill is for only a part of the drawer's funds, it is said that it does not operate as an assignment against the drawee, unless he accepts, for the reason that the creditor can not be permitted without the debtor's consent to split up one cause of action into several. Where the draft is not negotiable, the weight of authority is to this effect." WHAT BILLS NEED NOT BE-AND WHAT BILLS MUST BE PRESENTED FOR ACCEPTANCE. § 3. Bills payable on demand, (which are immediately payable on presentment,) or payable at a certain number of days after date, or after any other certain event, or payable on a day certain, need not be presented for acceptance at all, but only for payment. But it is usual and best when the bill is payable at a future day, to present it for acceptance, in order to ascertain whether it will certainly be hon 'Russell vs. Phillips, 14 Q. B., 891. 2 Mandeville us. Welch, 5 Wheat, 277; Schimmelpennich vs. Bayard, 1 Peters, 264; Tiernan vs. Jackson, o Peters, 580. The case of Corser vs. Craig, 1 Wash. C. C. R., 424, has been overruled. Luff vs. Pope, 5 Hill, 413; 7 Id., 577; N. Y. and Va. S. Bank vs. Gibson, 5 Duer, 574; Harris es. Clark, 3 Comst., 93. Mandeville vs. Welch, 5 Wheat, 277; Anderson vs. DeSor, 6 Grat., 364; Gibsons. Cooke, 20 Pick., 15. Id. Cutts vs. Perkins, 12 Mass., 209; Morton vs. Naylor, 1 Hill, 583. Story, J., in Mandeville vs. Welch, 5 Wheat, 277; Gibson vs. Cooke, 20 Pick., 15, 71 Pars., N. & B., 334. Bank of Washington vs. Triplett, 1 Peters, 25; Townsley vs. Sumrall, 2 Peters, 170; Allen vs. Suydam, 20 Wend., 321; Bachellor vs. Priest, 12 Pick, 399; Bank of Bennington vs. Raymond, 12 Vt., 401; Smith vs. Roach, 7 B. Monroe, 17; Carmichael s. Bank of Penn., 4 Howard Miss., 567; Glasgow vs. Copeland, 8 Misso., 268; Orr vs. Maginnis, 7 East, 362; Dunn vs. O'Keefe, 5 Maule & S., 282. ored, and to procure the assurance of the acceptor's liability.1 And in such cases, if acceptance be refused, the holder must make protest, and give notice in the same manner as if the bill were payable at so many days after sight. Bills payable at sight, (when such bills are entitled to grace,) or at so many days after sight, or after demand, or after any other event not absolutely fixed, must be presented to the drawee for acceptance in order to fix the period of maturity. When the words "acceptance waived," are embodied in a bill, the ordinary proceedings in acceptance are dispensed with, and merged into those of payment or non-payment." BY AND TO WHOM PRESENTMENT FOR ACCEPTANCE MADE. § 4. The bill must be presented by the holder, or his authorized agent; and to the drawee or his authorized agent. The party in possession of the bill is presumed to be the holder, and to have the right to make presentment for acceptance or payment. The drawee may accept without risk, and if he refuse the protest will inure to the benefit of the rightful holder. If the drawee can not be found, and any person has been indicated to be resorted to in case of need, (au besoin,) the bill should be presented to that person.7 If the bill be drawn upon two persons not partners, it seems that it must be presented to both, if not paid by the first; but this has been doubted, for the reason that the holder would not be bound to take the single acceptance of the other and if he did, it would be at his own risk, if the bill were not protested." 1U. S. vs. Barker, 4 Wash. C. C. R., 464. 2Glasgow vs. Copeland, 8 Misso., 268; Allen vs. Suydam, 20 Wend., 321; U. S. vs. Barker, 4 Wash. C. C. R., 464; Landrum vs. Trowbridge, 2 Metc., 281. Philpott vs. Bryant, 3 Car. & P., 244, in which case Park, J., said: "I should destroy half the trade of the City of London, if I were to hold that bills made payabie so many days after date must be presented for acceptance." Aymar vs. Beers, 7 Cowen, 705; Robinson vs. Ames, 20 Johns., 146; Wallace vs. Agry, 4 Mason, 336, 5 Mason, 118; Mitchell vs. Degrand, 1 Mason, 176; Story on Bills, 228. Whether or not bills payable at sight are entitled to grace, is a question about which authorities differ, though preponderating in favor of the allowance of grace. See on this subject, the chapter on Presentment for Payment. Webb vs. Mears, 9 Wright, 222. 5 Bank of Utica vs. Smith, 18 Johns., 230; Freeman vs. Boynton, 7 Mass., 483; Agnew vs. Bank of Gettysburg, 2 Har. & Gill, 478. Chitty on Bills, (13th Am. ed.,) 311. Story on Bills, 229. Welles vs. Green, 5 Hill, 232; Story on Bills, ? 229. 'Story on Bills, 229, note 9. But if the bill be drawn upon a firm, presentment to any party is sufficient,1 $5. The holder must be careful, when he does not find the drawee in person, to assure himself that the party to whom he presents the bill for acceptance, is his authorized agent. And though in the case of a presentment for payment it may suffice to demand payment at the residence of the acceptor, yet in case of a presentment for acceptance, the holder must endeavor to see the drawee or his authorized agent, personally. And therefore, where in an action against the drawee on a refusal to accept, it appeared that the witness had carried the bill to a place which was described to him as the drawee's house, and that he offered it to a person in a tan yard, who refused to accept it; and the witness did not know the drawee's person, nor could he swear that the person to whom he offered the bill was he, or represented himself to be so, it was held that the evidence of presentment to the drawee for acceptance, was insufficient.2 § 6. There is no doubt that a clerk found at the drawee's counting-room, is a competent party for the bill to be presented to, and to refuse acceptance of it; and it seems that it is not necessary to show that such clerk was the clerk of the drawee authorized to accept or refuse acceptance of bills; but parol evidence is admissible to prove that the clerk was authorized to refuse acceptance.3 PLACE OF PRESENTMENT FOR ACCEPTANCE. § 7. It was at one time a question much litigated in England, whether, if a bill payable generally—that is, without specification of a place of payment-was accepted payable at a particular place, such an acceptance was a qualified one. It was decided in the House of Lords, (contrary, however, to the opinion of eight of the twelve judges to whom the question was referred,) that such an acceptance was a qualified one, and that a demand at the particular place named was a condition precedent to a recovery against the acceptor, as well as against the drawer and indorser. This decision led to the passage of the Statute of 1 & 2 Geo. IV, c. 78, (called Sergeant Onslow's Act,) in which it was recited that the practice and understanding of merchants had been different; and enacted that an acceptance payable at a particular place without further expression, should not be deemed 'Greatlake vs. Brown, 2 Cranch C. C., 541; Story, 229; 1 Pars. N. & B., 135. 2Cheek vs. Roper, 5 Esp., 175. Nelson vs. Fotterall, 7 Leigh, 180; Stainback vs. Bank of Virginia, 11 Grat., 260. *Rowe vs. Young, 2 Brod. & B., 165; 2 Bligh, 391. VOL. I-NO. IV-6. a condi ional acceptance; but if it were payable at a specified place "only, and not otherwise, or elsewhere," it should be deemed conditional. In many of the States the English Statute has been substantially enacted; and the courts, with few exceptions, have independently of statute, followed the judgment of the eight judges against the House of Lords. Therefore, by the American Law, it is settled that demand of payment at the place specified need not be averred by the plaintiff; but if the acceptor was at the place at the time specified, and ready to pay the money, it was a matter of defense to be pleaded on his part; which defense, however, is no bar to the action, but goes only in reduction of damages, and in prevention of costs. This subject will be more fully discussed when we come to consider presentment for payment. But at any rate, the presentment of the bill or note for acceptance should be at the place of the domicil of the drawee, whether it be payable generally, or at a particular place—the place of payment being immaterial until after acceptance. If the drawee has removed his residence from the place to which it is addressed-or really resided at a different place-the bill should be presented at his new, or real, place of domicil, if the holder can ascertain it by diligent inquiries. If by such inquiries the drawee's place of domicil can not be ascertained, or if he has absconded, the bill may be treated as dishonored.4 § 8. If the drawee has his dwelling house in one part of the town, or city, and his place of business at another, presentment for acceptance may be made at either place; and if the drawee resides in one town, and has his place of business at another, the holder may present the bill at either.5 § 9. Presentment for acceptance should, in all cases, be made during the usual hours of business. But presentment to a tradesman need not be during banking hours-eight o'clock in the evening would suffice. And it matters not at what hour the presentment be made, if an answer be given by an authorized person. But See 1 Pars. N. & B., 305-311; Story on Bills, 355-357; Byles on Bills, (Sharswood's ed.,) 318-319, and 341-346; Edwards on Bills, 426, 428; Bayley, 115. In Indiana, the House of Lords has been followed: See Presentment for Payment. "Chitty on Bills, (13th Am. ed.,) 316. Anderson 8. Drake, 14 Johns., 114; Freeman vs. Boynton, 7 Mass., 483; Bateman vs. Joseph, 12 East, 433. *Id.; Chitty, 316. 5Story on Bills, 236. Elford vs. Teed, 1 Maules & S., 28; see post, Presentment for Payment. Chitty, 316. |