Joseph Story

“ Then, again, as to the consideration, it can make no difference in law, whether the debt for which the bill is taken is a pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party to the drawer, upon the bill, and the party parts with his present rights at the instance of the promissee; whose promise is substantially a new and independent one, and not a mere guarantee of the existing promise of the drawer. ”

“ Wherever a protest is required to fix the title of the parties; or by the custom of merchants is used to establish a presentment or dishonour of a bill; it is competent evidence between the parties, who contract with reference to the presentment and dishonour of such bill. And there is no doubt, that it was material for this purpose under some of the counts in the declaration.
The next objection is to the rejection of the record of the action of Toland & Rockhill vs. Sumrall & Waters. ”

“ If a person undertake, in consideration that another will purchase a bill already drawn, or to be thereafter drawn, and as an inducement to the purchase to accept it, and the bill is drawn and purchased upon the credit of such promise, for a sufficient consideration ”

“ That the partnership accounts were not settled; and he received no other consideration for the bills than the receipt of the $4000 of partnership goods. He furnished Thomas F. Townsley & Co. with produce enough to pay one of the drafts, and they paid one of them. Townsley & Co. had no funds or effects in their hands belonging to him. On the dissolution of the partnership, he understood the plaintiff was to wind up the concern and pay the debts.
The defendant then offered in evidence the record of a suit of Toland & Rockhill against Sumrall & Waters ”

“ That if they believe from the evidence, that the defendant by parol stated that he would accept a bill or bills to the amount of $4000, before the bills were drawn, and before the defendant had received the amount or any part of it, under the expectation and belief that the drawer Richard S. Waters would put funds into his hands to take up the bills at maturity ”

“ The negotiability of such bills, and the facility as well as certainty of the proof of dishonour, would be materially affected by a different course; a foreign merchant might otherwise be compelled to rely on mere parol proof of presentment and dishonour, and be subjected to many chances of delay, and sometimes to absolute loss, from the want of sufficient means to obtain the necessary and satisfactory proofs. ”

“ In giving the instructions asked by plaintiff; 4. In refusing the instructions asked by defendant-the defendant excepted.
The first question that arises is upon the admissibility of the protest of the notary public at New Orleans, as proof of the dishonour of the bill. The protest is for non-payment for want of funds; and it does not appear that there had been any prior protest for non-acceptance. Bills of exchange payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded at their maturity. ”

“ That if they believe the said bill was drawn to pay a partnership debt as stated by R. S. Waters, they ought to find for the defendants.
3. That if they believe the bill was drawn by Waters in favour of Sumrall, to be assigned to Toland & Rockhill, in payment of a partnership debt due by Waters & Sumrall to Toland & Rockhill, and that said bill was thus assigned to Toland & Rockhill; and if they also believe that said Waters & Sumrall have not settled their partnership; that then they should find for the defendant. ”