facts, without being legally bound, he may recover back the money, when the holder has been guilty of wilful concealment. For instance, when the holder of a check, which was postdated, and consequently void, presented it to the bankers on whom it was drawn, in the full knowledge of that circumstance, and also of the insolvency of the drawers, but without mentioning either of these facts, and the bankers were led, by his concealment, to pay the check, though they had not then funds of the drawers in their hands, they were found entitled to recover back from him the money so paid.1 A person is likewise entitled to recover back, even from the bona fide holder of a bill, a payment which has been made by him without consideration, in consequence of the fraudulent insertion of a sum far beyond that for which the bill was originally granted. 2 So also the indorser of a bill was found entitled to recover back its amount from the indorsee, on discovering that the latter had not given notice of the nonpayment in due time after recovering it. 3 But he has no claim for repetition against any other party to the document. A person accepting and paying one bill, and then paying another drawn by the same person to the same bona fide holder, cannot recover back the amount of the last bill, on the ground that the drawer's signature is forged; it being held that he ought to have ascertained this fact before he gave either of the bills credit by accepting and paying them. 5 The cases of payment made by a banker through mistake to a wrong person, and of payment of a check made by the banker after the drawer's death, but before he knew of it, have been already considered. 6

' Martin v. Morgan, Gow, 123; 3 Moore, 635.
'Bruce v. Bruce, and Jones v. Ryde, 307, note 1.

Batchin v. Orr, June 1792, Morr. 1619.

Post. on Negotiation.

' Price v. Neal, ante, 386, note 4, and other cases therein cited.

• Ante, 403 and 404.

It would rather appear that a party paying through mistake is entitled to repetition from the person to whom payment was made, even though it arose from a mistake in point of law. 1

Although a party has got money from the acceptor of a bill to satisfy it, he will be entitled to plead any objection to the title of the holder of the bill, which could have been pleaded by the acceptor, for instance, that the original payee indorsed it to him after committing an act of bankruptcy, or, in Scotland, that he indorsed it in security of a prior debt within sixty days of his bankruptcy, and consequently that the indorsement is void. In such a case, the defendant holds the money for behoof of the other creditors. 2

It is laid down in the earlier writers on bills, and even in a modern author, 3 that payment of a bill by the acceptor, unless it bears expressly to be "for value received," gives him a claim of indemnity against the drawer. But this notion proceeds on the old doctrine, that the drawee accepts merely as the drawer's mandatary, and has therefore an action ex mandato in consequence of his acceptance. It has been already explained, in opposition to this doctrine, that the drawee, by accepting, acknowledges himself to be the drawer's debtor, whether the bill contains the words "for "value received," or not, and that therefore his payment of the bill, being only a discharge of his proper debt, can give him no claim against any of the other parties. If he

4

Ersk. 3, 3, 54. Vide also opinion of the Court in Carrick v. Carse, 5th August 1778, Morr. 2931. In this case, a party was reponed against a payment made under a cautionary obligation, in respect of the lapse of the seven years. He admitted that he knew the law on this subject, but alleged that he was ignorant of the fact. The Court held that he was equally entitled to redress against the mistake, whether it had arisen from ignorance of the law or of the fact.

'Redshaw v. Jackson, I Campb. 372. per Lord Ellenborough.

Glen, 181, 2d edit.

Ante, 108, et seq.

has truly accepted for the drawer's accommodation, this fact can only be proved by the latter's writ or oath, and, even in that case, his claim of indemnity cannot be pursued on the bill, but must be the subject of a separate action.

The claims of recourse arising to the drawer, and other parties, in bills or notes, from their payment of them, shall be afterwards considered, in the chapter on Action and Diligence.

CHAPTER VI.

OF THE NEGOTIATION OF BILLS AND NOTES, AND THE CONSEQUENCES OF FAILURE IN DUE NEGOTIATION OR DILIGENCE.

WE must now reverse the case which has been hitherto discussed, and suppose that the drawee of a bill refuses to accept, or that the drawee of a bill or granter of a note fails to pay. The holder is then entitled to sue the drawer, or any of the indorsers immediately, for the amount of the bill or note. But he cannot succeed in this claim, without shewing that he has done all that the law requires for the due negotiation of bills or notes. It will, likewise, in general, exclude his claim against subsequent parties to a bill or note, if he has released, given time, or innovated the debt in favour of a prior party against whom they had a claim of recourse. This part of the subject, therefore, includes all the requisites of negotiation, as well as the consequences of failure in negotiation, and the question how far discharge or indulgence given to one party will release others. We shall therefore consider,

I. The requisites of presentment of bills or notes; 1. For acceptance; 2. For payment.

II. Protest, both for non-acceptance, and for non-pay

This last subject, though not falling strictly under negotiation, has been included in it; because a previous expla

nation of presentment and protest is necessary to make it intelligible.

IV. Notice necessary in the event of non-acceptance or non-payment, and in what cases it may be dispensed with.

In considering these different requisites, we shall likewise discuss the consequences of failure in any of them, which resolve generally into the loss of recourse.

V. Effect of novation, release or indulgence granted to any one of the obligants on the holder's claim against the other obligants, or any of them.

In discussing these several points, we shall consider how far the general doctrines with regard to them are modified by the circumstance of the bill or note being accepted, granted, or indorsed without value, or, in other words, being what is called an accommodation-bill or note.

I. 1. Presentment for acceptance.

It is settled that a bill which is payable on a precise day, or within a certain time after its date, need not, in general, be presented till it becomes due. The drawer, being fully certiorated as to the term of payment, is bound to have funds at that time in the drawee's funds to answer it; and it is his business to secure the drawee's acceptance if the bill should be presented, by either putting him in funds immediately, or satisfying him that he will be put in funds before the term of payment. There is an exception, however, to

' Beawes, No. 266; Molloy, 2, 10, 16; per Lord Mansfield, C. J., in Blessard v. Hirst, 5 Burr. 2672; per Gibbs, C. J., in O'Keefe v. Dunn, 6 Taunt. 621-2; per Lord Ellenborough in Orr v. Maginnis, 7 East. 359. In Scotland, in Ferguson v. Malcolm, 16th Feb. 1727, Morr. 1558, the Court found, "that the bill being drawn payable on a place and day certain, there was no ne"cessity of a protest for non-acceptance." In Jamieson v. Gillespie, 28th June 1749, after a report of merchants as to the practice, it was held sufficient negotiation to protest for non-acceptance as well as non-payment of a bill of this kind, within the days of grace.