
    Depau, Deas, & Co. ads. Ex'ors. Thos. M. Browne.
    
      Bill of ■exchange, payable after sight, and dated 20th. June, draiun by Deft’s in Charleston, on W. of New-York: The first bill of the set, which had been sent by P ,st, directed to the payee in New-Yor', was presented by a person unknown, with the name of the payee endorsed, but not in his hand writing; accepted Li. July, and at maturity paid: After the ^payment, the second of the set was presented by the payee,protested for non-acceptance 31 st. of August, and for non-payment 18ih September, and notice given to drawees: In an action on the second, bill against the drawers, a verdict ivas found for plaintiffs and a new trial refused.
    
    This was an action of assumpsit brought on a bill of Exchange for one thousand dollars, dated the twentieth of Juno t81G, drawn by the defendants upon Mr. Willink of Ne\v York, in favor of the plaintiff's testator. It was protested for non-acceptance on the 31st. August and for non-paymént on the 18th Sept, and notice of both was admitted to have been, .given in due time.
    The first ground of defence was, that the hill sued on, being the second of the set of Exchange, ivas void, because the first of the set had been presented, accepted and paid by drawee.
    To establish this part of the defence, the defendants produced the first of the set, with Willink’s acceptance'thereon, dated 1st. of July 181G, and the name of Thomas M. Browne endorsed thereon; also the examination by coSfcrroission of Herman Vos and John C. Zimmerman, residents ofNew-York and agents of Willink, the drawee. Vos proved that the first of the set, which was annexed to the commission by defendants, had been accepted by him, as agent for and by the express direction of Willink; that he did not know the person who presented it, but he appeared to be between 18' and 20 years of age; that about two or three weeks after the bill was at maturity, Willink informed him (the witness) that Mr. F. Depau of New-York had called to forbid the payment of die bill, as it had got into wrong hands. He further testified that he did not know Mr, Browne, the payee, nor did he know the person who presented the bill, but he had no good reason to believe that the bill was paid to one who had fraudulently obtained possession of it. Mr. Zimmerman testified that he did not know if it was Mr, •Browne who presented the bill to him; that he (witness) paid the bill, being authorized by Willink to pay such bills, drafts fee. as might be drawn on him by defendants; that the bill was indorsed as at present, (die bill being shown to him) but he could not recollect the person to whom he paid it; that about two or three weeks after the maturity of the bill, a Mr. Brewster, calling himself-the agent of of Mr. Browne, enquired of witness if the Dill had been paid; who answered it had, by Willink’s direction. Brewster then said it had got into wrong hands. Witness never knew Browne, nor did lie knovr the man wbo presented the bill to him and to whom he paid the amount; that he neither knew nor believed that it was presented by any person who had fraudulently obtained it; nor had he any doubt but that k was paid to a bona fide holder, until Brewster called on him as aforesaid: the bill was- paid by witness a few days before the day of maturity, but how many he did not recollect.,, nor what rate of discount was allowed for thus paying. The defendants also proved that the drawee, Willink, remained in, good credit till April 1819, when he became insolvent. - The plaintiff in reply called John G. M‘Knight, who testified that he knew Browne the plaintiffs testator well and knew his hand writing; that the endorsement on the bill bore no resemblance to Browne’s writing, and he did not believe it was his; he further testified that the indorsement on the second bill was Browne’s, and the difference between the two indorsements was in the B and r and size of the whole word. Mr. Dclieseline also testified that he knew the plaintiffs testator’s hand writing, and that the indorsement of the first bill did not correspond with any writing witness ever saw of his; that Browne, in 1806, was about 31 or 33 years old and seemed older; that his character was excellent. It- was here admitted that Thomas C-or--mick, the agent of Browne in Charleston, bought this bill of defendants and sent it on to New-York, to Thomas M. Browne-, by post.
    Here the case closed, when the plaintiff contended that he had a right to recover, as the payment to the person who presented it was no payment to plaintiff, that person not being authorized by plaintiff to receive it. To this the defendant replied that the possession of the bill was itself an authority to present it for acceptance and payment, unless notice had been given by the owner, that the person in possession obtained it mala fide; that this fact at least ought to have been distinctly proved; for it could not be inferred simply from the endorsement being unlike the plaintiffs; that if drawees in foreign countries are not to pay upon the production of bills apparently regular, without proof of the endorsements and legal possession of the holders, the uses of biffs of Exchange will be so abridged as seriously to affect commerce, that the plaintiff’s course, at -any rate, tras to have demanded payment of Willink, the acceptor, who was irrevocably liable on his acceptance; and on his refusal, to have given notice thereof to defendants immediately, and to have protested it; that this was not doné, and even the second bill was not presented until the 31st. August, two months and eleven days after the date, which delay was unreasonable and destroyed the plaintiff’s right to recover against the'se defendants; that if any loss has accrued to the plaintiffs in this case, it arose from their act and not the defendants; and where the equity is equal, a plaintiff can recover nothing in this .action.
    The presiding judge charged in favor of the plaintiffs, and the jury found accordingly under his directions, with damages and interest. The defendants therefore moved the court to set aside the verdict, on the following grounds; to wit:
    1st. Because the first of .the set of the bills of exchange on which the action was brought, was accepted and paid by the drawee to the holder.
    2nd. Because there was no evidence of the loss of the bill or that it was not endorsed by the payee, except that the endorsement did not resemble his hand writing.
    3rd. Because there was no evidence that the holder, who received payment, ac uired the bill mala fide, or that the ao ccptor had any intimation that the bill had been lost or ought not to be paid.
    4th. Because if the payment of the first of the set was no discharge to the drawee, the plaintiff should have protested it and notified the defendants thereof, before he could proceed to recover the amount from them.
    . 5 th. Because if the first of the et was neither accepted nor paid in law, the defendants are discharged from liability on the second(on which the suit is brought) for want of its being presented in reasonable time..
    
    6th. Because, if when the e mity is e ;ual, the plaintiff cannot recover, he assuredly cannot where -the loss, as in the present ease, arose from his own acts.
    
      
      Prioleau, for motion.
    
    Possession of’a bill of exchange is .of itself a sufficient authority to present for acceptance, &c. I Dallas, 193; 1 Bos. f Pul. 651; 103.
    It is said the payment was not good, because the endorser ment was forged. The evidence does not justify that concision; the facts were e juivocal and forgery ought not to be presumed.
    Possession of a bill is prima facie evidence of right, and payment by the drawer is good, unless-it appear that he knew the holder came by it improperly. The bona fide holder of a bill endorsed in blank, may maintain an action in his own name, though it may have been illegally and fraudulently obtained by a previous holder; and if it be paid, to a bona fide holder, on a forged endorsement, the mouey cannot be recovered back. Chit, on bills, 145,184, 192, n. 1. 4 Mass. T. R. 42; 2 Doug. 632 4; 3 Burr. 1354. These rules are established on commercial principles. The convenience of trade and exchange require an adherence to them. A contrary rule would oblige the bearer of every bill of exchange to prove his identity, before he would be entitled to recover the amount of the bill.
    Notice of non-payment must be given by the next mail after the expiration of the three days of grace. 2 Wheaton 377; 1 jV. & M. 469. Soon after the payment of the first bill of the set, the plaintiff’s agent was informed of the fact: this was a refusal to pay it him and he ought to have given immediate notice1 to the defendants.
    Protest must be made of a foreign bill; nothing will supply its place. Chitty, 278.
    The party loses his remedy if he neglect presentation in due time; and the rule is the same in this respect, as to notice of non-acceptance or non-payment; it must be done m reasonable time. Chitty, 207; 1 M‘ Cord, 322. There were seventy one days between the drawing and presentation, and the mail passes-, weekly between New-York and Charleston.
    " If the bill be lost, it is the duty of the owner to give notice*, Chitty 195. Plaintiffs neglected to do so.
    
      
      J)unlcin, contra.
    It is contended that the payment b'y Wi’link was good and therefore that the defendants are not. liable, bm the role of law is that a forged endorsement does not justify the payment. Chitly 192; 4 F. R- 28; <j jl. R. lcíl¿ All the cases quoted in favor of the motion will be found to have been cases of genuine endorsements in blank.
    It is objected that due diligence was not used. This must depend on all the circumstances, and it was for the. jury to determine whether there were any laches or no. Chitty, 210,211; 2 Hy. Blaclcstone 569; 2 Cotup. 463; 3 Johns, ca. 262. Bat if it was a matter for the court, the circumstances prove that every thing in the power of the plaintiffs was done.
    
      Grim e, against the motion.
    The payment of the first bill of the set by Willink was made without authority, for there is no pretence that the endorsement was in the hand writing of Brorne. He was therefore bound to honor the second, precisely in the same manner as if -the first had never existed or had never been presented.
    An acceptance is an admission only of the hand writing ot the drawer, but not that the endorsement is genuine, for the acceptor may shew in an action at the suit of the endorsee, that the endorsement was forged. It is incumbent on the plaintiff, endorsee, in an action against the acceptor, to prove the endorsement. Smith vs. Chester, 1 T. R. 654; 1 Moore’s index, 150; 6 .Mass. T. Rep. 38.
    With respect to notice, the first of the set was accepted and paid without the knowledge of the plaintiff; and it could not be expected that he should be- able to give notice. It was the duty of Willink who was, pro hac vice, the agent of the do ■ fendants, to have given them the notice, when they might themselves have detected the fraud. If they did not, it was their own fault.
    There is no certain rule as to'what shall be reasonable diligence in the presentation of a bill payable at or after sight.. The object of procuring the bill, the use intended to be made7””* of it, the distance &c. must be taken into the account.
    
      
      Prioicau. ns reply.
    The endorser of anote and tac draw* sr of a bi!l of exchange, stand in the relation of securities, and courts of law, as well as of equity, will readily lay hold of any circumstance to relieve them from their liability. ■ Willi.sk had accepted the first of the set, this he might do without an endorsement, and .t does not appear that it was then endorsed. The payee might have protested it for non-payment, or he nm. fit faavc brought Ins action on the acceptance and called on Wil-hnk to produce the bill, or he might have maintained trover for it. Phil. Ev. 336, 8, 9; 346, 7.
   The opinion of the court was delivered by

Mr. Justice Colcoc

i shall first take notice of those grounds in the brief which relate to the facts, winch are the second and third. The evidence was by two persons who knew the hand writing of Browne, that the endorsement on the first set was not in his hand writing; and it w s also in evidence that the bill had been sent on by the mail, and that Browne bad left New-York before the bill was paid. This evidence was submitted to the jury, as proof that the bill did get into wrong hands, and their verdict shews that they were satisfied of it. Indeed there can be no doubt on the subject. The case will be considered then as a ease in which the bill was not endorsed by the payee.

The law is clear, that to make the payment of a hill of exchange vaid, it is necessary that it should be endorsed ,by the payee or by some person legally authorized to make the endorsement for him. When a bill is so endorsed, it may be paid to the holder: hitty on Bills, 144, 145, 176, and this was the casein all the authorities relied on by the defendant’s counsel. They are all cases of endorsementby the-payee or one empowered by him, as in the case of a blank endorsement, with authority to fill -up. But if paid without endorsement or on a. forged endorsement, the payment is not valid. “ When a bill is assignable only by endorsement, as' no interest in it can be conveyed otherwise than by that act, any person getting possession of it by a forged endorsement, will not acquire any interest in it, although he was not aware oi the ior^crj; and eonse ¿uently the original holder in such case may, when he has ragained possession of the bill, recover against the acceptor and drawer, although the acceptor may have paid the bill; and if the person attempting to derive an interest under such endorsement, sue the acceptor, he will be admitted to prove that the endorsement was not made by the person entitled to make it.” Chitty on Bills, p. 192-3; Mead & Young, 4 Term Reports, 28, and the case of Cheap and another, vs. Barley Drummond, cited 3 Term R ports, 127; which is in all the facts the very case before us. The defendant who had a house in America as well as in London, drew1 two bills of exchange there, the first and second of the same tenor and date, on a third house here, payable to the plaintiffs. One of them being lost came into the hands of a third person, who forged an endorsement of the payees and received the amount of it from the defendants here; and afterwards the real payees brought their action upon the other bill and recovered. See also the case of Archer, vs. the Gov’rs. & Co. of the Bank of England, Doug. 337.

Nor can the position contended for by the defendant’s counsel, “that an acceptance binds the acceptor, even where the endorsement is fraudulent,” be maintained: if one accept a bill which appears to have been endorsed by the payee, and after-wards discover that the hand-writing of the payee has been forged, he is not bound; the acceptance only acknowledges the Land-writing of the drawer. It is laid down in Chitty, p. 500, that in an action against.the acceptor, the first endorsement of the bill must be proved, although it was payable to drawer’s, own order and endorsed by him, because the acceptance only admits the hand-writing of the party as drawer and not endorser; and it has .even been holden that ehe circumstance of the defendant’s having accepted the bill after it was endorsed, does not dispense with proof of such endorsement, and proof that the bill was endorsed by a person of the same name, as in the case of Mead & Young, 3 Term Reports, 28, before referred to, was not suflicient.

But defendants contend that even if the payment of the first of the set by Willink, was not a valid payment, yet that "there was such laches in the presentment of the second, as will discharge the defendants. There seems to be a difference of •opinion, not only in our States but in England, whether the question of diligence is for the determination of the court or the jury. With deference to the opinion of those from whom I differ, I think it must always be for the jury, for it depends on that determination of facts which is exclusively for the jury. No general rule can be laid down. The cases of bills payable after sight, vary from a few days to a year, depending on an infinite variety of circumstances. In Chitiy, page 208, it is laid down, in the case of a foreign bill payable after sight, that it is no laches to put it into circulation before acceptance, and to keep it in circulation without acceptance as long as the convenience of the successive holders requires, and it has evenheen decided that if a bill drawn at three days sight were kept out in that way for a year, this would be no laches. Muilman vs. D’Eguino, 2d. H. Blackstone, 565; in which case, C. J. Eyre says no fixed rule can be laid down, it would clog these negotiations; it must depend upon the particular circumstances of the case and must be left to the jury to determine. Justicé JBuller; “there is no rule but due dilligence, without regard to the character of the bill, if put into circulation it is enough,” he adds “if the holder were to lock it up for any length of time, I should say it was laches, but further than this no rule can be laid down.” Here the circumstances of the case will justify the delay. Browne was on his way home; as soon as he arrived here and heard the fate of his bill, he procured the second of the set (and it was said and not denied, set off in person) and presented it as soon as he arrived in New-York; when refused to be accepted or paid, he protested it and gave due notice. But why is a bill to be presented in a reasonable time? To prevent injury to the drawer. Now had the second of the set in this case been presented on the very day after the payment, would the defendants have been placed in a better situation? the misfortune had occurred, and that from the negligence of the drawee or his clerks, it was irreparable and the defendants must be the’, losers.

Priohau, for motion.

Gnrnjce fy Bunkin, contra.

The ¡notion is dismissed.

Bay, JYott, Johnson Sp Huger, Justices concurred.

There is no doubt, I suppose, dial if a bill or not",, payable to order, b& transf-ui-ocl, bona fide, by the payee, without uudoi-scment, though the holder dor.s not acquire snob <i property in it as will enable him to sustain a suit ;n his own name, yet ha has such an until -ul,- to receive, that the acceptor or drawer raal-.ins payment to him will lie dl.si ha -ni

The position which seems to have been intended tobe principally relied on is., (hat the possession of a bill not endorsed, is such evidence, prima facie, of ;;u-tbority from the payee, as to throw upon him the. proof that it was lost, or that, the holder acquiredUaiafo'/irfe; and this seems to be supported by several of the. authorities cited.

Tiie holder’s being in possession with a forged endorsement on the bill, Would certainly bo a strong circumstance to shew that it was unfairly acquired; and the farther ground appears to have been taken, that proof of its not being the hand writing of the payee, was not sufficient to shew the endorsement forged; as some one else might have made it by his direction.  