Page:Federal Reporter, 1st Series, Volume 7.djvu/184

 172 ���FEDBBAL REPORTER. ���cations oited by this learned aiithor on the commercial law of negotiable instruments. Moreover, there were special cir- cumstances in this casewhich made the probability of injury much greater, and the laches more inexcusable. In the iirst place, we all know that where relations like those between Dr. Pendleton and Greenwood & Co. exist, there would be much more prospect of acceptance where protest would resuit from refusai than where it is waived, as the agents of the com- pany here assumed to do without Dr. Pendleton' s authority. He had not waived protest, and they had no right to do it for him without discharging him from all liability to pay the draft, and thereby, releasing the condition for a forfaiture .which depended 011 that liability. Again, on the faots of ■this case,.ther« i^ good ground to say that there was that obliga;tion,on tb©' part pf Greenwood & Go. to aeoept and pay, that a failure,t9 do sq wpoldrender them liable for eonse- que^tial damages, andrequire them to indemnify these pl3,in- tiffs aigainst,,th€[ forfeiture clftimed in this case, if .it shoyld ,resiilt from their.refu8al1i0;,accept or pay. Sedgw. Dam. ,((ith Ed.) 84,ininoteB; 1. Daniell, Neg. Inst. (^d Ed.) § 564; .Story,: Bills, § 398; Iladley Y..BqxenaMle,L.,'B., 9 Exch. 94; S. Q,: 36 E, hr^ E. 398:} Prehny. Royal Bank, 5 Exch. 92; j^jfjis^, Lirt(i?^y, 7 Cranph, 500; BussellY, Wiggin, 2 Btoiy, 214j 242. And; whether they would be so liable, where, by the laches of the holder, the drawer had been discharged, or where they could say in their own defence, if this draft had been presen.ted on the day when due, we could, and would have paid it, but, not being so presented, we are now una- ble, or, having parted with the drawer 's funds, should not be required now to pay, may be doubtful. Why the holder of a bill of exchange, who bas by bis negligence released the obli- gation to pay it, should be allowed to claim a forfeiture for Bon-payment, is not clear to me ; but cerfcainly, if the drawer has by that negligence lost bis remedy for damages against the drawee, he should not be permitted to enforce the for- feiture. Hence, there was a greater reason for acting promptly, under the law merchant, with this draft. ��� �