dent excuses the giving of regular notice, provided that it be given as soon afterwards as circumstances will permit. "Si par quelque force majeure et imprêvue le protêt n'avoit pu se faire le jour auquel il doit être fait, le defaut de protêt dans ledit jour ne feroit pas dechoir le proprietaire de la lettre de ses actions en garantie; car on ne peut jamais être obligé à l'impossible. Il n'est néanmoins relevé de ce defaut qu'à la charge que le protêt soit fait depuis, dans un temps dans lequel le juge estimera qu'il a pu depuis être fait, lequel temps doit être laissé à l'abitrage du juge." pl. 144. He then instances the death of a correspondent, to whom the bill has been sent in order to be presented, and a sudden accident happening to a messenger. See also Pardessus, Du contrat de Change, pl. 426. In the United States it has been held that the prevalence of a malignant fever, which put a stop to all business at the place of the residence of the drawer of a bill, was a sufficient excuse for not giving notice to him until November of a protest for non-payment in September. Tunno v. Lague, 2 Johns. Ca. 1. But Van Ness J. in a subsequent Nisi prius case ruled, that the prevalence of an epidemic was no excuse for not giving notice during its continuance. Roosevelt v. Woodhull, Anth. N. P. 35. Bayley on Bills, 175. American Ed. The rule is stated by Mr. Thomson, as follows: "Neglect or delay to give notice may be excused by any cause not arising from the holder's own fault, which has rendered notice impracticable, for instance, by the drawer or indorser for whom notice was intended, absconding to avoid his creditors, or by the sudden illness or death of the holder or his agent, who was employed to give notice, or any other accident which prevents notice from being given." Thomson on Bills, 548. So with regard to the protesting a bill, it was the opinion of London merchants, that any cause preventing the holder without his fault from protesting the bill, as his detention by contrary winds or sickness, would excuse him from protesting. Young v. Forbes, (Scotch,) Morr. 1580. Thomson, 483.

Note 53. page 240.-It was argued in this case, that the indorsement by the defendant was a warranty, that the prior indorsements were made by persons having competent authority, and the dictum of Chambre J. in Smith v. Mercer, 6 Taunt. 83. was cited, but the court seemed to doubt the propriety of that doctrine. In the French law it is said "L'Endosseur est garant solidaire avec les autres signataires, de la vérité de la lettre, ainsi que du paiement a l'echeance. Pardessus, vol. ii. p. 376; and see the Code de Commerce," No. 140.

Note 54. page 249.-This decision seems to be at variance with the general rule, that a contract for the payment of money is to be construed according to the law of the country where

payment is to be made. According to Forbes, p. 101, in case of an alteration in the currency, the creditor is to bear the loss or reap the benefit, unless he has specified the value of the coin in which a payment is to be made, in which case, the number of pieces paid will be greater or smaller, according as their value has diminished or increased. See Thomson on Bills, 415.

Note 55. page 280.-In America it has been held that in an action against the makers of a note, signed in a partnership firm, it is sufficient to prove a partnership between the defendants, and that one of the partners signed the note, without proving also, that the firm was the style and firm used by the partnership. Drake v. Elwyn, 1 Cain, R. 184. Bayley, 46. Amer. Ed.

Note 56. page 305.—It does not appear very clearly from the report, upon what precise ground the witness was rejected. From the observations of the Chief Justice, it would seem, that he considered the witness incompetent, on the broad ground of his liability as acceptor to pay to the drawer the costs of the action. If the case is to be considered as an authority to that extent, it overthrows all the decisions mentioned in the text, in which the acceptor has been admitted as a witness for the defendant. But it seems, that the case may be supported on another ground. The witness having received the bill for the purpose of getting it discounted, and having negligently suffered it to come into the hands of the plaintiff, who detained and sued upon it, was answerable to the defendant upon that ground, for the costs of the action, and therefore incompetent. See Harman v. Lasbrey, Holt, 390. That the case of Edmunds v. Lowe must be thus understood appears from a decision which took place in Trinity Term, 1829, (not yet reported) in which it was held, that the acceptor of a bill is not liable to pay the costs of an action brought against the indorser of the bill. This had previously been so held in an American case, Barnwell v. Mitchell, 3 Conn. R. 101. Bayley, 218. Amer. edit. So, it has been held, that the indorser of a note, who has been sued by the indorsee, and obliged to pay the costs of the suit, cannot, in an action against the maker, compel him to pay these costs, in addition to the amount of the note. Simpson v. Griffin, 9 Johns. R. 131. Bayley, 236. Amer. edit.

Noet 57. page 308.—In support of the decision of Johnson v. Kennion, 2 Wils. 262. it may be said, that the contract of the drawer is, (see ante, p. 73.) that the acceptor shall pay the bill, or, on default, that he will himself pay it, and that the acceptor having refused, he may now be called upon to perform the other branch of the contract. That the payment made

by the payee cannot be made on account of the drawer, who is himself indebted to the payee.

On the other hand, it may be said, that although there are various persons liable on the bill, yet that there is only one debt, and that as to the debt, every party on the face of the bill is a surety for the payment of it by the others. That a partial payment, therefore, must exonerate those others pro tanto, as every payment by a surety exonerates his principal. This is the opinion of Pothier, who, after observing, that the holder may sue all the parties at one time, says, "mais comme

ces differents debiteurs sont debiteurs envers lui de la meme chose, le paiement qui lui est fait par l'un d'eux libere d'autant envers lui les autres." pl. 160.

Bacon v. Searles may perhaps be supported, without denying the authority of Johnson v. Kennion. In the former case, the payment was by the drawer, who may be regarded as anticipating the payment of the money which he had directed the acceptor to pay from funds in his hands.

Note 58. page 311.-In America it has been held, that on a note, made in one place, payable in another, interest is recoverable according to the legal rate of the place where it is payable. Schofield v. Day, 20 Johns. R. 102. So, if a bill is drawn in one country, and payable and accepted there, in an action against the acceptor, interest is recoverable only according to the legal rate of that country, although the suit is brought in another country. Foden v. Sharp, 4 Johns. R. 183. but see Grimshaw v. Bender, 6 Mass. R. 157. Bayley, 31, 235. Amer. edit.

Note 59. page 311.-According to Pothier, pl. 62. although the holder cannot recover from the drawer the supposed profits which he has lost by the bill being dishonored, yet he is entitled to recover the expences of his journey to the place where the bill was payable, whither he has gone on business, in consequence of the bill being there payable.

Note 60. page 315.—Although in the cases cited in the text, it has been held that the acceptor is not liable to re-exchange, yet there are several authorities the other way. It is said by Pothier, (pl. 117.) that the acceptor is liable in like manner as the drawer, upon which it is observed by Mr. Justice Bayley, that it seems reasonable that the acceptor should be liable to all parties where he has effects, and to all excepting the drawer where he has not. Bayley, 358. (n.) Such also is the opinion of Mr. Bell, (I. 316.) "It has been questioned whether the acceptor's estate is liable to a claim for re-exchange? That this accumulation of expense falls legitimately on the drawer is unquestionable. It is not a demand which

When

naturally arises against the acceptor by the porteur, for his proper recourse is against the drawer; but as the drawer will on answering that demand, have his claim against the acceptor, provided he have funds in his hands for indemnification, it does not appear that any bar would lie to a claim by the porteur, against the acceptor's estate in the case of the drawer becoming bankrupt, for it seems to be implied in the nature of the acceptor's engagement to this peculiar sort of instrument, that he is tacitly bound for the common mercantile damage arising from its dishonor." The learned editor of Mr. Glen's Treatise on the Law of Bills of Exchange, &c. in Scotland, (p. 272.) has made the following judicious remarks on this subject, and has pointed out what appears to be the true distinction. "The drawers and indorsers on selling the bill, received from the indorsee the exchange as well as the principal sum. obliged to pay re-exchange therefore, they are only refunding what they have originally received, and though the exchange may, no doubt, have become more unfavourable by the term of payment than it was when they indorsed the bill, and so they may have to pay a greater sum than they received, yet it may have become less unfavourable, in which case they would be gainers. This expense thus arises altogether out of the circumstance that the drawer, for his own convenience, received his debt by means of a bill of exchange, on the negotiation of which he may, owing to the accidental fluctuations of the exchange, be a gainer or loser, but with the profit or loss on this transaction the acceptor has no concern. But the holder or drawer, on recovering the amount of the bill from the acceptor in the place of payment truly receives an equivalent for the re-exchange. That charge, as has been seen, occurs only when money is more valuable at the place of payment than at the place of drawing, and it makes the difference of value between the two currencies. See Pothier No. 64. See also De Tastet v. Baring, (ante, p. 312). And Hoffman, Ex parte, Co. B. L. 185. Where the acceptor pays the debt in the more valuable currency at the place of payment, it is evident that the re-exchange is included in the sum which he pays. This is acknowledged in what has been already noticed, that each indorser is liable in re-exchange according to the course of exchange between his place of residence and the place of payment, only because the exchange for this latter distance, along with the principal sum, is equivalent to the amount of the bill in the place of payment. Of course, had one of the indorsers lived in the place of payment, no re-exchange at all could have been exacted from him, and the acceptor must be in the like situation. Thus, if a merchant in Inverness should allow a bill which he has accepted, payable at Edinburgh, to be protested, but should afterwards, while it still remains in the holder's hands at Edinburgh, cause payment of it to be made there, he

ought not to be held liable in exchange, because the bill has been satisfied in the currency in which it was payable. But should payment be recovered from the acceptor at a place different from that where the bill ought to have been paid, the exchange between these places, if unfavourable to the former, ought to be paid by him, on the same principle that the drawer is liable in re-exchange, when called on to pay the bill in the place of drawing; otherwise the holder will not receive an equivalent for the sum in the dishonored bill. Thus in the case already mentioned, should the contents of the bill be recovered from the Inverness merchant in that town, he ought, it is thought, in addition, to be liable to the re-exchange between it and Edinburgh, where the bill ought to have been paid. These observations apply only to the charge of re-exchange, properly so called, and not to the charge on account of actual damage, or to the expense of protests, postages, commission, and the like, which are usually incurred on the dishonor of a bill. These expenses, as having been incurred directly by the acceptor's breach of engagement, ought to be borne by him, and it appears that he is held responsible to this extent in England." See also Thomson on Bills, 645.

Note 61. page 320.-Upon this case, Mr. Justice Bayley observes, "The enacting part of 7 Geo. 1. c. 31. s. 1. only requires that the security be taken upon good and valuable consideration; and according to Rolfe v. Caslon, (See ante, p. 330.) a counter acceptance is a good consideration to enable the holder of the bankrupt's acceptance to prove, though from this case it appears that it is not so to enable him to petition." Bayley, 349.