Page:Federal Reporter, 1st Series, Volume 4.djvu/36

22 FEDERAL REPORTER. �Sixth. At the time when the drafts were discounted by the- plaintiff the drawers were in good credit; but none of them have been paid, aad they were duly protested for non-pay- ment. �Seventh. The Newark Tea-Tray Company is a corporation created by the laws of New Jersey, and doing business inthat Btate, and Walter M. Conger was its secretary. �The question, upon these facts, is, was the defendant gnilty of negligence in the dise barge of its duty as the plaintiff 's agent, whereby the plaintiff was subjected to loss ? �What, then, was the duty of the defendant ? The drafts wer© payable at a certain future day, and were sent to the defend- ant for collection. As was said by Selden, J., in Walker v, The Bank of the State of New York, 9 N. Y. Eep. 582-684, "that any agent, whether it be a bank or an individual, re- ceiving a note or bill from the holder for collection, is respon- sible for any loss which the holder may sustain on account of any neglect in presenting it or in giving notice of its dishonor ; that it is the duty of an agent who receives for collection a bill of exchange, payable at soine future time, to use due dil- igence in presentirig the same for acceptance, and if he fail to do so, or fail to give notice in case acceptance is refused, he will be liable." Failure to present a bill for acceptance before maturity by an agent to whom it is entrustod for col- lection, without special instructions, will not constitute want of due diligence, because acceptance before the day fixed for payment is not necessary to hold the drawer and indorser, as was held in Bankof Washington v. Triplett, 1 Pet. 25; but if it is presented, and acceptance according to its tenor is refused, if the agent fail to give notice he will be liable. The drafts here were addressed to "Walter M. Conger, secretary Newark Tea-Tray Company, Newark, N. J.," were duly pre- sented to him, and were accepted in writing across their face, as follows : "Accepted. Payable at the Newark National Banking Company. Walter M. Conger." �It is contended by the plaintiff that the drafts were ad- dressed to the Newark Tea-Tray Company, and that th& acceptances were not by that company, but by .Walter M. Conger, individually, and that, by taking them in this form, ����