
    * Robert Lenox versus Zebedee Cook.
    When a bill of exchange is protested for non-acceptance, a right of action accrues immediately to the holder; he is not bound to present it at maturity for payment, nor, if he does, is his right of action on the non-acceptance affected thereby.
    Assumpsit by the plaintiff as endorsee of a bill of exchange, against the defendant, as surviving partner of the house of Aubin and Cook, endorsers of the bill.
    A trial was had, upon the general issue joined, before Parker, J., at the last November term in this county, when it appeared that the bill in question was drawn for £300 sterling, on the tenth of August 1809, by Joseph Cutler, of Newburyport, on Mess. Smith &• Co., merchants in Liverpool, in favor of Joseph Hooper or order, payable in sixty days after sight, and endorsed by said Hooper. It was purchased by & Willard, the agent of the plaintiff, of Aubin and Cook, and endorsed by them. It was immediately sent on to the plaintiff in New York, who sent it by the first opportunity to the house of Logan and Lenox in Liverpool, to be by them present ed for acceptance. On the twenty-seventh of October following, the bill was presented for acceptance, and refused ; and it was regularly protested for non-acceptance, and notice thereof, with the protest, immediately sent out to the plaintiff in New York, who also, immediately after receiving the protest, forwarded it to Mr. Willard, his agent in Boston, who, on the fourth of January, 1810, notified the defendant thereof, and was informed by him that there was a person in Liverpool who would undertake to see the bill paid. Two other bills, which had been purchased by the plaintiff of the defendant in like manner, and which were also protested for non-acceptance and non-payment, were taken up by the drawer’s agent in Liverpool. The bill in question was presented for payment when it became payable, and payment being refused, it was protested for non-payment; but the protest for non-payment did not reach Willard, the plaintiff’s agent, until August, 1810, owing to the plaintiff’s correspondent not forwarding it; and no notice of this last protest was given, or any demand for payment made, except on the protest for non-acceptance.
    * A verdict was found for the plaintiff, for the amount of the bill, with interest and damages, by direction of the judge. The defendant moved for a new trial, for a misdirection, because he apprehended that notice of refusal to pay, and of the protest for non-payment, ought to have been given within a reasonable time after those facts took place.
    The action being continued to this term for the consideration of the said motion,
    
      Jackson, for the defendant,
    contended that, although it is not now to be denied that the holder of a bill of exchange has presently, upon protest for non-acceptance, a right of action against the drawer and prior endorsers, yet to support such action he must have the original bill as well as the protest. In the present case the bill was not sent on until long after the protest for non-payment. So the action was brought too soon. It was not known, at the commencement of the action, that the bill was not paid at maturity.
    But, further, it is contended that, after the maturity of the bill, and a presentment of it for payment, and a protest for non-payment, the former right of action for non-acceptance is gone, being merged in the new right of action arising upon the protest for non-payment ;  and this new right is lost by the neglect of notice.
    
      Sullivan, for the plaintiff.
    A right of action vests in the holder of a bill of exchange immediately on its being dishonored;  and this right is not affected by a posterior protest for non-payment ;  which is in fact entirely unnecessary after a refusal to accept, and due protest therefor. This always does away altogether the charge of loches on the part of the plaintiff. After his right of action was vested, any attempts on his part to procure payment of the drawees, and thus relieve the parties to the bill in this country, are illy objected to him by one of those parties.
    
      
      
        Bayley on Exchange, 85, 57. — Pothier. Contrat de Change, § 70, 133.
    
    
      
       3 Mass. Rep. 557. — Doug. 55. — 2 Strange, 949. — Chitty, 64, 100.
    
    
      
       3 Johns. Rep. 202, Mason vs. Franklin.
      
    
   By the Court.

We are all of opinion that the plaintiff has maintained his action. When one draws a bill of exchange, * he thereby engages that the drawee shall accept the bill when presented for acceptance, as well as that he shall pay it, when duly presented for payment at its maturity. When acceptance is refused by the drawee, a right of action accrues to the holder, after due notice. He is not bound to demand payment at the time the bill falls due, nor to protest for non-payment, nor to retain the bill for that purpose; but he may bring his action against all parties liable immediately on the refusal of the drawee to accept. Having duly notified the defendant of the dishonor of the bill, any delay in bringing the action is not imputable to the plaintiff as loches, any more than in any common case of an existing cause of action. It was for the benefit of the parties liable, to give them opportunity to pay without suit.

Judgment on the verdict.  