trial, before Kenyon, C. J. it appeared that defendant had engaged in several stock-jobbing transactions with different persons, in which Wilson was employed as his broker, and had paid the differences for defendant. That a dispute arising between Wilson and defendant respecting the amount of those differences, the matter was referred to plaintiff and three others, who awarded a sum of money to be due from defendant to Wilson, for part of which sum Wilson drew the bill in question. Kenyon, C. J. nonsuited the plaintiff, being of opinion that as the bill grew out of a stock-jobbing transaction, which was known to the plaintiff, he could not recover upon it. A rule having been obtained to shew cause why the nonsuit should not be set aside, Lord Kenyon, C. J. (after argument in support of the rule,) said, "If the plaintiff had lent this money to defendant to pay the differences, and had afterwards received the bill in question for that sum, then, according to the principle established in Petrie v. Hannay, (2), 3 T. R. 418. he might have recovered; but here the bill on which this action is brought was given for those very differences, and therefore Wilson himself could not have enforced payment for it. Then the security was indorsed over to the plaintiff, he knowing of the illegality of the contract between Wilson and defendant, for he was the arbitrator to settle their accounts, and under such circumstances he cannot be permitted to recover in a court of law." Rule discharged. Secus, if bill has been indorsed to a bona fide holder without notice.

Indorsce of a bill of exchange against the acceptork. The defendant employed one Pritchard, a broker, to transact some business for him in stock-jobbing in omnium, who paid the differences for him, and then drew the bill in question on the defendant for the amount of those differences, which the defendant accepted; afterwards, and after the bill became due, Pritchard indorsed the bill to the plaintiff for a prior debt. Lord Kenyon, C. J. was of opinion, 1st. That omnium was

i Day v. Stuart, 6 Bingh. 109.

k Brown v. Turner, 7 T. R. 630.

(2) In the case of Petrie v. Hannay, it was decided, that if two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker, with the privity and consent of the other, the whole sum, he may recover a moiety from the other in an action for money paid to his use. But see Aubert against Maze, 2 Bos. and Pul. 373. where the authority of Petrie v. Hannay was doubted.Eldon, C. J.

one of the public stocks or securities within the stat. 7 Geo. 2. (Sir John Barnard's act for preventing the infamous practice of stock-jobbing,) the loan having been voted by the House of Commons, although the scrip receipts were not then in the market; and, 2dly, That the illegality of the original transaction vitiated the bill, the plaintiff having taken it after it became due, and consequently not being entitled to recover, if Pritchard could not. A verdict having been taken for defendant, an ineffectual attempt was made to set it aside, the court being clearly of opinion, on the construction of the act of parliament, and on the authority of the foregoing case of Steers v. Lashley, that the plaintiff was not entitled to re

cover.

A bill may be negotiated after it is due, unless there be an agreement for the purpose of restraining it, Charles v. Marsden, 1 Taunt. 224. But a party taking a bill of exchange or note after it is due, takes it subject to all the equity to which the party from whom he had it is liable. In Brown v. Davies, 3 T. R. 80. it was said by Buller, J. that generally when a note is due, the party receiving it takes it on the credit of the person who gives it to him. To this position Kenyon, C. J. agreed, with the addition of this circumstance, that if it appeared on the face of the note to have been dishonoured, or if knowledge could be brought home to the indorsee that it had been so. See Mr. J. Lawrence's approbation of the foregoing rule in Boehm v. Stirling, 7 T. R. 431. In Taylor v. Mather, E. 27 Geo. 3. B. R. 3 T. R. 83. n. Buller, J. said, that it had never been determined that a bill or note was not negotiable after it became due, but if there were circumstances of fraud in the transaction, and it came into the hands of plaintiff by indorsement, after it became due, he had always left it to the jury, upon the slightest circumstance, to presume that the indorsee was acquainted with the fraud. See also Tinson v. Francis, M. T. 48 Geo. 3. B. R. 1 Campb. 19. where the holder of a note had given a full consideration for a note after it became due, but was not permitted to recover in an action against the maker, the maker having proved that the note was originally made without consideration. Lord Ellenborough, C. J. observing, "That after a bill or note is due, it comes disgraced to the indorsee, and it is his duty to make inquiries concerning it. If he takes it, though he gives a full consideration for it, he takes it on the credit of the indorser, and subject to all the equities with which it may be encumbered." But if the plaintiff has received the bill from a person who could have maintained an action on the bill, then the circumstance of the indorsement,

after the bill became due, is not sufficient to let in the defence of an illegal consideration. Chalmers v. Lanion, 1 Campb. 383. Lord Ellenborough, C. J. whose opinion was afterwards confirmed by Court of B. R. Whoever takes a bill after its dishonour, takes it with all the infirmities belonging to it, Crossley v. Ham, 13 East, 498. A bill paid at maturity cannot be re-issued, and no action can afterwards be maintained upon it by a subsequent indorsee; but if it be paid and indorsed before it becomes due, it will be a valid security in the hands of a bona fide indorsee. Per Lord Ellenborough, C. J. Burbridge v. Manners, 3 Campb. 194. If a bill of exchange, payable to the order of a third person who has indorsed it, be dishonoured when due and taken up by the drawer, it ceases to be negotiable. Beck v. Robley, 1 H. Bl. 89. n. But it is otherwise, if the bill be payable to the drawer's own order. Callow v. Lawrence, 3 M. and S. 95. Hubbard v. Jackson, 4 Bingh. 390.

A bankrupt in the interval between the second and third meetings under his commission', gave a promissory note as a security for a pre-existing debt to a creditor, who was acting as one of the commissioners at the time, and afterwards signed the bankrupt's certificate. The debt for which the security was given was not proved under the commission: Held, that such security was invalid, and that no action could be maintained upon it.

IV. Of Presentment for Acceptance—Acceptance—Qualified Acceptance-Liability of the Acceptor-Non acceptance, and Notice thereof-Protest-Liability of the Drawer on Non-Acceptance.

Presentment for Acceptance.-When a bill is drawn payable within a certain time after sight, it is necessary, in order to fix the time when the bill is to be paid, to present it to the drawee for acceptance.-In other cases, it is not essentially necessary for the holder to present the bill before it is duem; but it is adviseable to procure an acceptance, if possible; for by that means another debtor is added to the

1 Haywood, one, &c. v. Chambers, 5 B. and A. 753.

m Chitty, 67.

drawer, who becomes a new security, and, consequently, makes the bill more negotiable. There is not any fixed time, when a bill, drawn payable within a certain time after sight, shall be presented to the drawce. But due diligence must be used, and care taken, that the bill be presented within a reasonable time. "The only rule which can be applied to all cases of bills of exchange is, that due diligence must be used. Due diligence is the only thing to be considered, whether the bill be foreign or inland, or whether it be payable at or so many days after sight, or in any other manner." Per Buller, J. 2 H. Bl. 569. It seems that, whether due diligence has been used, is a question of law, but dependent upon facts, viz. the situation of the parties, their places of abode, and the facility of communication between them. See Darbishire v. Parker, 6 East's R. 3.

Acceptance.-When the drawee accepts a bill in the most usual and formal manner, he writes on the bill the word "accepted," and subscribes his name; or he writes the word accepted" only, or he subscribes his name only. It has been frequently lamented, that this, which is the regular mode, has not been adjudged to be the only mode of accepting bills; for then every person to whom the bill passed would see, on the face of the instrument, whether it were accepted or not; but it has long been decided otherwise, viz. that an acceptance, or a promise to accept, by collateral writing, or even by parol, (except for the purpose of charging the drawer of an inland bill with damages and costs, see 3 and 4 Ann. c. 9. s. 5.) was equally binding with an acceptance on the face of the bill. But see post, p. 328. stat. 1 and 2 G. 4. c. 78. s. 2.

Defendant was sued as acceptor of a bill of exchange". It appeared in evidence to be a parol acceptance only; Lord Hardwicke, C. J. ruled it to be suflicient, that being good at common law, and the stat. 3 and 4 Ann. c. 9. (see sect. 5. and 8.) which requires an acceptance to be in writing, in order to charge the drawer with damages and costs, having a proviso, that it shall not extend to discharge any remedy that any person may have against the acceptor; (after argument) the court of King's Bench agreed in opinion with the Chief Justice. The drawer of a bill of exchange, having acquainted the defendant, by letter, of his having drawn a bill on him, and re

n Lumley v. Palmer, 2 Str. 1000. S. C. more fully reported in Ca. Temp. Hardw. 74.

o Powell v. Monnier, 1 Atk. 611. It was said by Lord Ellenborough, C. J.

in Wynne v. Raikes, 5 East's R. 520. that the authority of this case had not been (as far as the court had been able to find) ever shaken.

quested him to accept it; the defendant wrote in answer, the bill should be duly honoured, and placed to his debit. Lord Hardwicke, Ch. held, that this amounted to an acceptance. So where A. resident in America?, not having any effects in the hands of the defendants (who resided in London,) drew a bill on them, payable at a certain time after sight, which bill A., for a valuable consideration, indorsed to B. resident in America, who afterwards, for a valuable consideration, indorsed it to the plaintiff's resident in London. The plaintiffs, on receiving the bill, presented it for acceptance, but the defendants refused to accept it. Afterwards, and before the bill became due, the defendants wrote a letter to A. the drawer, stating that their prospect of security being much improved, they should accept or certainly pay the bill; notwithstanding which, when the bill was presented for payment, the defendants refused to pay it. This letter was not received by the drawer in America until after the bill became due. It was holden, 1, That the terms of the letter amounted to an acceptance; for a promise to accept an existing bill was an acceptance, and a promise to pay it was also an acceptance, and consequently a promise to do the one or the other, i. e. to accept or certainly pay, could not be less than an acceptance; that supposing it to be an acceptance, the time when it was to be considered as made, namely, whether at the date of the letter, or at the time when it reached the drawer in America, was immaterial, inasmuch as an acceptance after the time appointed for the payment of a bill was good. 2. That although the bill was not taken by the holders upon the credit of the before-mentioned promise to the drawer, nor was the same known to them to have been made at all till after the bill was due, yet the holders might avail themselves of it as an acceptance, for the same circumstances existed in the case of Powell v. Monnier; there the promise being long subsequent to the time when the plaintiff's became possessed of the bill by indorsement, could not have formed any part of their original inducement to take it; there the promise was made to a drawer, who had drawn without having any effects in the acceptor's hands; and there also it did not appear that the holders, the plaintiffs, ever knew of the acceptance prior to the time when the bill became due. Consequently, on the authority of Powell v. Monnier, the plaintiffs in this case were entitled to recover. Although, regularly, a bill ought to be accepted before the day on which the money is to be paid, yet an acceptance after that day

p Wynne v. Raikes, 5 East's R. 514.