tile business, or after it was due, or under circumstances which ought to have led to an inquiry." It was admitted, in Bay v. Coddington,' that negotiable paper could be assigned or transferred by an agent, or any other person, fraudulently, so as to bind the true owner as against the holder, if it was taken by him in the usual course of trade, and for a fair and valuable consideration, without notice of the fraud. But it was held, that if the paper be not negotiated in the usual course of business, nor in payment of any antecedent and existing debt, nor for cash, or property advanced upon it, nor for any debt created, or responsibility incurred, upon the credit of the note, but was taken from the agent of the owner of the note after he had stopped payment, and as security against contingent responsibilities previously incurred, the rights of the true owner were not barred. Such a case did not come within the reason or necessity of the rule which protects the purchaser of paper fraudulently assigned, because it was not a case in the course of trade, nor was credit given, or responsibility assumed, on the strength of the paper. In any case in which the endorsee takes the paper under circumstances which might reasonably create suspicions that it was not good, he takes it at his peril. The rule is usually applied to the case of notes over due, but the principle is of general application. In Gill v. Cubitt, the Court of K. B. made a strong application of the principle, and held, that if an endorsee takes a bill heedlessly, and without due caution, and under circumstances which ought to have excited the suspi

a Brown v. Davis, 3 Term Rep. 80. Down v. Halling, 4 Barnw. & Cress. 330. Ayer v. Hutchins, 4 Mass. Rep. 370. Thompson v. Hale, 6 Pick. 259.

b 5 Johns. Ch. Rep. 56.

c Ayer v. Hutchins, 4 Mass. Rep. 370.

d 3 Barnw. & Cress. 466. See also, to the same point, Beckwith v. Corrall, 2 Carr. & Payne, 261. Snow v. Peacock, 3 Bingham, 406. Strange v. Wigney, 6 ibid. 677.

cions of a prudent and careful man, the maker or acceptor may be let in to his defence. It was deemed material for the interests of trade, that a person should be deemed to take negotiable paper at his peril, if he takes it from a stranger without due inquiry, how he came by the bill. He is bound to exercise a reasonable caution, which prudence would dictate in such a case; and it is a question of fact for a jury, whether the owner of the lost or stolen bill had used due diligence in apprizing the public of the loss, and whether the purchaser of the paper had, under the circumstances of the case, exercised a reasonable discretion, and acted with good faith and sufficient caution, in the receipt of the bill. The doctrine of Lord Kenyon, in Lawson v. Weston," is expressly overruled. This new doctrine, imposing upon the owner due diligence in giving to the public notice of the loss, and upon the purchaser of the bill due caution and inquiry, is supposed to be calculated to increase the circulation and security of negotiable paper, and to render it more difficult for thieves and robbers to pass it off.

(4.) Of the acceptance of the bill.

There is no precise time fixed by law in which bills payable at sight, or by a given time, must be presented to the drawee for acceptance. The holder need not take the earliest opportunity. A bill payable at a given time after date, need not be presented for acceptance before the day of payment; but if presented, and acceptance be refused, it is dishonoured, and notice must then be given to the drawer. A bill payable sixty days after sight, means sixty days after acceptance,

a 4 Esp. N. P. 56.

b If a check be so filled up, through ignorance or carelessness, as to enable the holder conveniently to insert three hundred before fifty, and the banker is thereby misled to pay the inserted sum, the loss must fall on the drawer of it, and not on the banker. Pothier, Traité du Contrat de Change, part 1. c. 4. sec. 99. Young v. Grote, 4 Bingham, 253. c Bank of Washington v. Triplett, 1 Peters' U. S. Rep. 25.

and such a bill, as well as a bill payable on demand, must be presented in a reasonable time, or the holder will have to bear the loss proceeding from his default."

The acceptance may be by parol, or in writing, and general or special. Though a bill comes into the hands of a person with a parol acceptance, and he takes it in ignorance of such an acceptance, he may avail himself of it afterwards. If the acceptance be special, it binds the acceptor sub modo, and according to the acceptance. But any acceptance varying the absolute terms of the bill, either in the sum, the time, the place, or the mode of payment, is a

a Marius on Bills, 19. Smith v. Wilson, Andrew's Rep. 187. Chamberlyn v. Delarive, 2 Wils. Rep. 353. Muilman v. D'Eguing, 2 H. Blacks. Rep. 565. Aymar v. Beers, 7 Cowen's Rep. 705. Wallace v. Agry, 4 Mason, 336. In this last case, the bill was drawn in Havana, upon London, at sixty days' sight, and it was held that it might be sent for sale to the United States, according to the course of trade, and need not be sent from Cuba directly to London. But in Camidge v. Allenby, 6 B. & Cress. 373. the vendee paid vendor of goods in notes of a country bank payable on demand to bearer. The bank, at the time, had stopped payment, but the fact was unknown to both parties. The vendor kept the notes for a week, without circulation or demand of payment, and it was held that he made the notes his own by this negligence.

b Lumley v. Palmer, Str. Rep. 1000. Powell v. Monnier, 1 Atk. Rep. 612. By statute 1 and 2 Geo. 4. c. 78. no acceptance of any inland bill of exchange is sufficient to charge any person, unless such acceptance be in writing on the bill. So, by the N. Y. Revised Statutes, vol. 1. 768. sec. 6. 9. no person within the state is chargeable as an acceptor on a bill of exchange, unless his acceptance be in writing, signed by himself or his lawful agent; and the holder may require the acceptance to be upon the bill, and a refusal to comply will be a refusal to accept. An acceptance in writing, if not on the bill, does not bind, except it be in favour of the person who, on the faith of it, received the bill. (Ibid. sec. 7.) So, an unconditional promise in writing to accept the bill, before it be drawn, is an acceptance in favour of the person who receives the bill on the faith of it, for a valuable consideration; (Ibid. sec. 8. ;) and every drawee who refuses to return a bill, within 24 hours, to the holder, shall be deemed to have accepted it. (Ibid. sec. 11.)

conditional acceptance, which the holder is not bound to receive; and if he does receive it, the acceptor is not liable for more than he has undertaken. The doctrine of qualified acceptances as to part of the money, is spoken of in Marius and Molloy; and in the case of Rowe v. Young, in the House of Lords, it was established to be the true construction of the contract, and the true rule of the law merchant, that if a bill be accepted, payable at a particular place, the holder is bound to make the demand at that place. The rule is also settled, that a promise to accept, made before the acceptance of the bill, will amount to an acceptance in favour of the person to whom the promise was communicated, and who took the bill on the credit of it. In Coolidge v. Payson, all the cases were reviewed, and it was held, that a letter, written within a reasonable time before or after the date of the bill, describing it, and promising to accept of it, is, if shown to the person who afterwards takes the bill upon the credit of that letter, a virtual acceptance, and binding upon the person who makes the promise. The same doctrine was also held by the Supreme Court of New-York in Goodrich v. Gordon, and it was there decided, that if a person, in writing, authorizes another to draw a bill of exchange, and stipulates to honour the bill, and the bill be afterwards drawn, and taken by a third party, on the credit of that letter, it is tantamount to an acceptance of the bill. The doctrine rests upon the decision of Lord Mansfield, in Pillans and Rose v. Van Mierop and Hopkins, where he laid down the broad principle, that a promise to accept, previous to the existence of the

a Marius, 17. 21.

Molloy, b. 2. ch. 10. sec. 21.

b 2 Brod. & Bing. 165.

c Milo v. Prest, 4 Campb. Rep. 393.

d 2 Wheat. Rep. 66. See also to S. P. 1 Peters' U. S. Rep. 264. and 4 ibid. 121.

e 15 Johns. Rep. 6. Parker v. Greele, 2 Wendell, 545. S. P. f 3 Burr. Rep. 1663.

bill, amounted to an acceptance. It is giving credit to the bill, and which may be done as entirely by a letter written before, as by one written after the date of the bill. A parol promise to accept a bill already drawn, or thereafter to be drawn, is binding if the bill be purchased in consideration of the promise. It is an original promise, not coming within the objects or the mischiefs of the statute of frauds; but whether such a valid parol promise to accept a non-existing bill, would, in the view of the law merchant, amount to an acceptance of the bill when drawn, is a question not necessarily connected with the validity of the promise."

Every act giving credit to the bill amounts to an acceptance." There is no doubt that an acceptance, once fairly and fully made and consummated, cannot be revoked; but to render it binding, the acceptance must be a complete act, and an absolute assent of the mind; for though the drawee writes his name on the bill, yet if before he has parted with the bill, or communicated the fact, he changes his mind, and erases his acceptance, he is not bound. The acceptance may be impliedly as well as expressly given. It may be inferred from the act of the drawee, in keeping the bill a great length of time, contrary to his usual mode of dealing; for this is giving credit to the bill, and inducing the holder to consider it accepted. If the bill be accepted in a qualified degree only,

a Townsley v. Sumrall, 2 Peters' U. S. Rep. 170.

b Powell v. Monnier, 1 Atk. 611. Wynne v. Raikes, 5 East's Rep. 514. Fairlee v. Herring, 3 Bingham, 625.

c Cox v. Troy, 5 Barnw. & Ald. 474. Emerigon, tome 1. 45. cites Dupuy de la Serra, art. des lettres de change, ch. 10. as laying down the maxim, that while the acceptor is master of his signature, and before he has parted with the bill, he can cancel his acceptance. This doctrine of La Serra is cited with particular approbation by Pothier, Traité du Contrat de Change, n. 44. and his opinion was mentioned with great respect by the K. B. in the case last referred to, and there is now entire harmony on the point in the jurisprudence of the two nations. d Harvey v. Martin, 1 Campb. 425. note.