ought to follow. Why should it be held that the drawer of of an accommodation bill is not discharged by want of notice? -on the ground that the acceptor is a surety, against whom the drawer has no claim. Upon the same ground also the accommodation acceptor must be held discharged by time being given to the drawer for whom he is surety.

Note 17. page 100.- So it has been held in America, that payment of a debt by a counterfeit bank note is no payment, and the amount of the note may be recovered back from the person paying it. Young v. Adams, 6 Mass. R. 132. Bayley, 94. Amer. Ed.

Note 18. page 108.- -A bill or note does not appear to be within the 4th sec. of the statute of Frauds, 29 Car. 2. c. 3. so as to require it to state the consideration, where it is given for the debt of a third person. The words of the statute are, no action shall be brought, whereby to charge the defendant upon any special promise, to answer for the debt, &c. of another, &c." "unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing," &c. These words do not seem to apply to bills of exchange, which are peculiar mercantile instruments known to the law and importing a consideration, and which must always have been in writing.

Note 19. page 112.-The cases of Charles v. Marsden, and Tinson v. Francis, may perhaps be reconciled. In the former case there appears to have been no fraud, but in the latter, the plaintiff derived title from a person who transferred it in fraud of the purpose for which it was entrusted to him. Upon these cases Mr. Thomson observes, "The doctrine of these two cases combined, appears to be, that a party taking a bill or note, after the term of payment, is bound to make inquiry concerning it, and that if it turns out to be an accommodation bill or note, he may take it from the payee without being liable to any latent objections, though he will be liable to them, when he takes it from a third person, who is not presumed to have the same right of negotiating it as the payee." Thomson on Bills, 331. This appears to be incorrect. The party who takes a bill after it is due from the payee, takes it subject to all latent defects, except (according to Charles v. Marsden) the defect of want of consideration. If he takes the bill from a third person, that person must be either a party to the bill or not. If a party to the bill, then he seems to stand in the same situation as the payee if not a party to the bill, still the person who takes the bill from him will stand in his place, and be subject to all the objections to which his title was subject.

Note 20. page 117.-It may be doubted, whether the defen

dant in this case was liable even to a bona fide indorsee for value. The bill being drawn under duress, no contract arose, and it resembles the case of a bill drawn by a feme covert, who is under a disability to contract. It is observed by Mr. Thomson, that in Scotland the objection of force used to obtain the subscription of a bill or note, nullifies that subscription entirely, and that the party is as little bound by it, as if it had been forged. Thomson on Bills, 123.

Note 21. page 135.-The question, in what cases a bill or note payable on demand shall be considered as over-due, has arisen in several American cases. See Ayer v. Hutchins, 4 Mass. R. 368. Freeman v. Hoskins, 2 Cain. R. 368. Loomis v. Pulver, 9 Johns. R. 244. Losee v. Dunkin, 7 Johns. 70. Sanford v. Mickles, 4 Johns. R. 224. Thurston v. Mc Kown, 6 Mass. R. 76. Hendrichs v. Judah, 1 Johns. R. 319. The result of these authorities is thus summed up by the editor of the American edition of Bayley, p. 84. "Where a promissory note payable on demand is indorsed within a reasonable time after its date, it has been held in the United States, that the indorser has all the rights of an indorsee, receiving a negotiable instruments before it becomes due. But if it be not indorsed within a reasonable time, it will be considered as over-due and dishonored, and the indorser will be subject to any defence which would have been available against his indorsers. What is such a reasonable time is not precisely settled, though it is clear that a note is to be considered overdue and dishonored a year, or even eight or nine months from the date; but not overdue a few days from the date. What is a reasonable time is a question of law when the facts are settled."

Note 22. page 136.-The power of cancelling an indorsement while the bill remains in the possession of the indorser, seems to prove that until the delivery the passing of the property is not complete. As to cancelling indorsements, see Pardessus, vol. ii. p. 378.

Note 23. page 138.-So in France, the holder may by a restrictive indorsement, prevent the indorsee from transferring the bill, dans l'espèce d'endossement qui ne contient qu'un simple mandat, celui au profit de qui l'ordre est passé ne peut pas ordinairement en passer l'ordre à un autre." The usual indorsements in such cases is," Pour moi paierez a un tel," omitting the words " ou à son ordre." Poth. pl. 89.

Note 24. page 138.-So in America, it has been held that if an indorsement specifies that there is to be no recourse to the indorser, or that it is at the risk of the indorsee, the indorser is not liable to any action by the indorsee. Rice v. Stearns, 3 Mass.

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R.225. Welsh v. Lindo, 7 Cranch, 159. Bayley, 95. Am. Ed. This appears to coincide with the French laws. "L'endosseur purroit declarer qu'il n'entend pas être tenu des garanties que nous venons d'indiquer et restreindre son obligation Toutes ces clauses, si elles sont ecrites dans l'endossement obligent le porteur; si elles sont dans un acte separé elles ne lient que le preneur par endossement envers l'endosseur." Pardessus, vol. ii. p. 378.

Note 25. page 139. So in America, where in an action against the indorser of a note, it appeared that by one indorsement he had assigned part of the sum mentioned in the note, and the residue by another indorsement, the court held that the action could not be supported on the ground that an indorsement for part of a bill or note is bad, and if so, these two vicious indorsements could never constitute a good one. Hughes v. Kiddell, 2 Bay. 324. Bayley, 72, Amer. Ed.

Note 26. page 141.- Where a bill of exchange is indorsed to an agent, for the purpose of procuring payment, the latter is, according to Pothier, pl. 82., bound to present the bill for acceptance. So, in Scotland, where an agent employed to get a bill accepted neglected to do so for four days, during which time the drawer failed, and the drawee refused to accept, he was found liable on that account for the bill, under deduction of a dividend from the drawer's estate. Dunlop v. Hamilton, 1 Bell, 320. (n). Thomson, 437.

Note 27. page 142.—By the French law, bills payable at or after sight, must be presented for acceptance within certain specified periods, according to the places at which they are drawn. Code de Commerce, No. 160. Pardessus, vol. ii. p. 391.

Note 28. page 146.-By the French law, twenty-four hours are allowed to the drawee, to consider whether he will accept or not. Code de Commerce, No. 125. Pardessus, vol. ii. p. 327. But, retaining the bill after that period does not amount to an acceptance. Ibid.

Note 29. page 146.- Where a bill is drawn, payable in one place upon a person residing at another, it must be presented for acceptance at the latter place. Pardessus, vol. ii. p. 396. And in America it has been held, that where a bill is drawn upon a person resident in A. but is made payable in B. a large city, without specifying any particular place in B. it is sufficient for the holder, in order to charge the prior parties, either to present the bill to the drawee for payment at his place of residence, or to leave the bill at the place where it is payable on the day of payment, and there to have it protested, withou

making any inquiry for the drawer. Mason v. Franklin, 3 Johns. R. 202. Boot v. Franklin, 3 Johns. R. 208. Bayley, 135. Amer. edit.

Note 30. page 153.—Marius says, "All bills of exchange which are made payable at usances, must be reckoned directly from the date of the bill, which, if it be new style, and payable in London, or any place where they write old style, the date must first be found out in the old style, and then carried forward, and you cannot mistake." Thus, it appears, that though the time is to be reckoned from the date of the bill, yet it is to be reduced or carried forward to the style of the place where it is payable. See Bayley, 202.

The rule of the civil law is, contraxisse unusquisque in en loco intelligitur, in quo ut solveret se obligavit. So that a bill of exchange is to be construed, as if the contract was entered into at the place where it is payable. See Pothier, pl. 155. and the notes of M. Hutteau, in his edition of Poth. p. 241.

Note 31. page 154.-The French law is the same with regard to bills payable after sight. "Ce delai commence a courir le lendemain du jour que la lettre a eté acceptée, ou que le refus en a été legalement constaté." Pardessus, vol. ii. p. 356. No. 336. In America it has been held, that where a bill, payable at so many days' sight, is presented one day and accepted the next, the number of days must be computed from the day on which it was accepted, not from the day on which it was presented. Mitchell v. Degrand, 1 Mason, 176. Bayley, 153. Amer. edit.

Note 32. page 158.-It will be observed, that in this, and other cases, in which it has been held, that the drawer of a check is discharged by the laches of the holder, in not presenting it, the banker had failed. But it has not been decided, that where the check is presented long after its date, and payment is refused for want of funds of the drawer, and not on account of the insolvency of the bank, the drawer is discharged. In such a case, in America, where it appeared that the drawer had withdrawn his funds in the meanwhile from the bank, it was held, that he remained liable. Per Kent, J. "I know no case which goes the length of exonerating the drawer, where the responsibility of the bank has remained good, and where he was himself the cause of non-payment, by withdrawing the money." Conroy v. Warren, 9 Johns. Ca. 259. Bayley, 148. Amer. edit. See ante, p. 91, 149.

Note 33. page 162.-The rules as to days of grace in the United States are generally the same as our own. Bayley, 151. Amer. edit.

Note 34. page 164.- Although days of grace were not allowed in France on bills payable at sight, by virtue of a particular ordinance, yet Pothier maintains the propriety of the rule upon principle, "D'ailleurs il seroit contre l'equité qu'une personne qui prend une lettre de change à vue sur une ville par où elle doit passer sans y sejourner, et qui, pour continuer son voyage, a besoin de l'argent qu'on lui donne à recevoir par cette lettre, fût retenue dix jours sans cette ville pour en attendre le paiement." pl. 172. In Amsterdam days of grace are allowed on such bills. Forbes. 107.

Note 35. page 165.-The treatises differ occasionally, as to the usances of foreign bills, and the different authorities are therefore given in the text. The correctness of the table is not, perhaps, very material, for should a question arise in practice, it would be necessary to resort to the evidence of commercial men. It is said that bills from Constantinople and Smyrna, are usually drawn at thirty-one days; from North America at sixty days; and from the West Indies at thirty-one days. Glen on Bills, 21. 2d ed.

Note 36. page 172.-The doctrine may be considered as established in the United States, that a written promise to accept a non-existing bill is binding as an acceptance, if the holder of a bill receives it upon the credit of such promise; although the holder receives the bill from the drawer in payment of a pre-existing debt. Gooderich v. Goodwin, 15 Johns. R. 6. But such promise is not binding as an acceptance, unless the bill is drawn within a reasonable time after the promise is made; and where a bill was drawn two years after the promise was made, in order to procure the drawer's release from arrest, the person making the promise was held not to be bound as acceptor. Coolidge v. Payson, 2 Wheat. 66. Weston v. Clements, 3 Mass. R. 1. Bayley, 105. Amer. ed.

Note 37. page 177.-In the French law the word accepted is not necessary to bind the drawee, je ferai honneur, je paierai, j'acquitterai, are esteemed equivalent. But the word vu written by the drawee on a bill payable after sight, will not operate as an acceptance. Pardessus, vol. ii. p. 404.

Note 38. page 180. The result of the English cases on constructive acceptance is stated thus by Mr. Thomson, (p. 369.) It has been decided in England, that acceptance is implied when the drawee not only detains the bill, but from the whole of his conduct, leads the holder to believe that he considered it as accepted." He adds in a note "This appears to have been the true ground of decision in Harvey v. Martin, 1 Campb. 425,