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acceptance. This minute, in coir.mon language, is termed 

 the " noting" of the bill ; the folemn declaration, the " pro- 

 teft ;" and the perfon whofe office it is to do thefe afts called 

 a " public notary ;"' and to his proteftation all forelu-n courts 

 give credit. If no fuch notary be refident in the place where 

 the bill is neQ;ot!ated, proteft may be n".ade by any (ubilantial 

 inhabitant in the prefence of two credible v.itnefTes. For the 

 circumftances attending this proteft, and the difference iii 

 this refpeft between inland and foreign bills, fee Protest. 

 When a bill is once accepted abfolutely, it cannot in any 

 cafe be revoked, and the acceptor is at all events bound, 

 though he hear of the drawer's having failed the next rro- 

 ment, even if the failure was before the acceptapce. The 

 acceptor may however be difcharged by an exprcfs declara- 

 tion of the holder, or by fomething equivalent to fuch de- 

 claration. But no circumftances of indulgence (hewn to the 

 acceptor by the holder, nor an attempt on his part to reco- 

 ver of the drawer, will amount to an exprefs declaration of 

 difcharge. Neither will any length of time fliort of the fta- 

 tute of limitations, nor the receipt of part of the money 

 from the drawer or indorfer, nor a promife by indorfement 

 on the bill by the drawer to pay the refidue, difcharge the 

 holder's remedy againft the acceptor. Although the receipt 

 of part from the drawer or indorfer be no difcharge to the 

 acceptor, yet the receipt of part from the acceptor of a bill, 

 or the maker of a note, is a difcharge to the drawer and in- 

 dorfers in the one cafe, and to the indorfers in the other, un- 

 lefs due notice be given of the non-payment of the refidue ; 

 but where due notice is given, that the bill is not duly paid, 

 the receipt of part of the money from an acceptor, or mak- 

 er, will not difcharge the drawer or indorfers ; becaufe it is 

 for their advantage, that as much fhould be received from 

 others as may be. So the receipt of part from an indorfer is 

 no difcharge of the drawer or preceding indorfer. If the 

 drawer of a note, or the acceptor of a bill, be fued by the 

 indorfee, and the bail pay the debt and cofts, this abfolutely 

 difcharges the indorfer as much as if the principal had paid 

 the note or bill ; and the bail cannot afterwards recover 

 againft the indorfer in the name of the indorfee. On the 

 principles of feveral cafes it has been finally fettled, that to 

 entitle the indorfee to recover againft the indorfer of an in- 

 land bill of exchange, it is not necefTary to demand the mo- 

 ney of the firft drawer. 



By the ftat. 3 & 4 Ann, c. 9. § 7. it is enafted, that if 

 any perfon accept a bill of exchange for and in fatisfadtion 

 of any former debt or fum of money formerly due to him, 

 this fhall be accounted and efteemed a full and complete pay- 

 ment of fuch debt ; if fuch perfon, accepting any fuch bill 

 for his debt, do not take his due courfe to obtain payment 

 of it, by endeavouring to get the fame accepted and paid, 

 and make his proteft according to the dirciStions of the aft, 

 cither for non-acceptance or non-payment. 



Where a privity exifts between the parties in a bill of ex- 

 change, an aftion of debt, or of "indebitatus afTumpfit," 

 may be maintained ; but where it does not exiit, neither of 

 thefe aftions will lie. A privity exifts between the payee 

 and the drawer of a bill of exchange ; the payee and drawer 

 of a promifTory note ; the indorfee and his immediate in- 

 dorfer of either the one or the other ; and perhaps between 

 the drawer and acceptor of a bill ; provided that, in all 

 thefe cafes, a coniideration palTed refpeftively between the 

 parties. But no privity is fuppofed to exift between the in- 

 dorfee and acceptor of a bill, or the maker of a note, or be- 

 tween an indorfee and a remote indorfer of cither. 



The a£lion which is now brought on a bill of exchange, is a 

 fpecial aftion on the cafe, founded on the cuftom of merchants. 

 This cuilom \vm not at firft recognized by the court, unlefs 



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it wa« fpctially fet forth ; but when this cuftom was recog- 

 nized by the judges as part of the law of the land, and they 

 declared they would take notice of it " ex officio," it became 

 unnecefTary to recite the cuftom at full length ; a fimple al- 

 legation that " the drawer, mertioning him by his name, 

 according to the cujlum of merchants, drew hi* bill of exchange, 

 &c." was fufficient. If the plaintiff, adhering to former 

 precedents, thought proper to recite the cuftom in general 

 terms, and did not bring his cafe within the cuftom fo fet 

 forth ; yet if by the law of merchants, as recognized by the 

 court, the cafe as ftated, entitled him to his acli.n, he might 

 recover ; and the fetting forth of the cuftom was reckoned 

 furplufage, and rejcfttd. Whether the drawer of a bill, or 

 the indorfer of a bill or of a note, receiving the bill or note 

 in the regular courfe of negotiation before it has become due, 

 can maintain an aftion on it againft the acceptor or maker, 

 in the charadter of indorfee, feems undecided ; but there is 

 a cafe which clearly (hews that a drawer or indorfer cannot 

 maintain an aftion in the charafter of indorfee, " where the 

 indorfement is after the lefufal of payment ;" becaufe 

 when a bill is returned unpaid, either on the drawer or in- 

 dorfer, its negotiability is at an end. The aftion, there- 

 fore, in which the drawer or indorfer, after payment of the 

 money in default of the acceptor, may recover, the firft 

 againft the acceptor, and the latter againft any of the pre- 

 ceding parties, muft be brought in their original capacity as 

 drawer or indorfer, and not as indorfee. If the drawee, 

 without having efiefts of the drawer, accept and duly pay 

 the bill without having it protefted, he may recover back 

 the money in aftion for money paid, laid out, and expended 

 to the ufe of the drawer. Inftead of bringing an aftion on 

 the cuftom, or on the ftatute, the plaintiff may in many cafes 

 ufe a bill or note only as evidence in anotlier aftion ; and if 

 the inftrument want fome of the requifites for making it a 

 good bill or note, the only ufe he can make of it is to give 

 it in evidence. 



The holder of the bill or note may fue all the parties who 

 are liable to pay the money ; either at the fame time, or in 

 fucceflion ; and he may recover judgment againft all, if fa- 

 tisfaftion be not made by the payment of the money before 

 judgment obtained againft all ; and proceedings will not be 

 ftaid in any one aftion, but on payment of the debt and 

 cofts in that aftion, and the coils in all the others in which 

 he has not obtained judgment. But though he mav have 

 judgment againft all, ytt he can recover but one fatisfac- 

 tion ; and though he be paid by one, he may fue out exe- 

 cution for the cofts in the feveral aftions aganift the others. 

 To this aftion the defendant may plead the ftatute of hmiia- 

 tions ; and by the exprefs provifion of the ftatute of queen 

 Anne, all aftions on promift'ory notes m.ull be brought within 

 the fame time as is limited by the ftatute of James, with 

 rcfpeft to aftions on the cafe. And to this plea it is no good 

 replication, that it was on account between inercuauts, where 

 it appears to be for value received. 



As the aftion on a bill of exchange is founded on the cuf- 

 tom of merchants, fo that on a promifTory note is founded on 

 the ftatute 3 & 4 Ann. c.9. In both cafes, however, it is 

 necefTary, that all thofe circumftances fhould be cxprcfsiv 

 flated, or clearly and inevitably implied, which, according 

 to the charafters of the parties to the aftioo, niuft necefTarily 

 concur, in order to entitle the plaintifT to recover. In flat- 

 ing the bill or note, regard muft be had to the legal operation 

 of each refpeftively. It has been decided, that liic legal 

 operation of a bill or of a note, payable to a tiftitious payee, 

 is, that it is payable to the Itanr j and therefore it i.<: pro- 

 per in the ftat^ient of fuch a HI!, to allege that the drawer 

 thereby rcqutftcd the drawee to pay fo much money to the 



bearer 



