If acceptance of a bill of exchange be refused, whether it should be protested or not depends at common law on whether it is an inland or a foreign bill. This subject will be discussed under a later section.1 Statutes may require protest or dispense with it. But at any rate notice of non-acceptance must be immediately given to the drawer and indorsers or they will escape liability,2 unless the notice be excused for some of the reasons hereinbefore stated.3 This notice must be given by a party to the bill or by his agent.4 It cannot be given by a stranger.5 It will not avail to excuse the failure to give notice of non-acceptance that the bill was one which did not require acceptance. Notice must nevertheless be given.6 So a conditional acceptance must be notified to the drawer and indorsers.7 And if notice of non-acceptance be not given when acceptance is refused, a subsequent acceptance will not restore the holder's rights against the drawer and indorsers.8 Acceptance, of course, proves a due presentation,9 unless it be an acceptance after a refusal to accept. The foregoing rule as to the necessity of notice to drawer is not held with the same strictness as to checks, although a refusal to accept a check is a refusal to pay it, as we shall here in the acceptor and drawer are prima facie principal debtors as to the indorsers.13 Though the acceptor be a mere accommodation acceptor to the knowledge of the holder he is none the less bound.14 The holder, it has been said, may strike out the drawer's name after acceptance.15 Yet as between the acceptor and the drawer the acceptor may show himself to be a surety, just as he or the drawer may show the same fact as to an indorser as against that indorser.16 Non-negotiable orders accepted absolutely ought to be binding upon the acceptor though he have no funds of the drawer.17 A payee upon such an order, or an indorsee to whom the acceptance was given, may at common law maintain an action upon the acceptance in his own name,18 but it is said an indorsee after acceptance of a non-negotiable order cannot.19 But this rule would have no application where an assignee or the real party in interest can sue.

1 See Sec. 246, post after see.10 As to non-negotiable orders the rule will be hereinafter stated in connection with refusal of payment.11

2 Glasgow v. Copeland, 8 Mo. 268; Lindenberger v. Wilson, 1 Cranch, C C. 340; Phillips v. McCurdy, 1 Harr. & J. 187; Warder v. Tucker, 7 Mass. 449; Stanton v. Blossom, 14 Mass. 116. Notice must be of the first dishonor. Thompson v. Cum-mings, 2 Leigh, 321. This is true though the bill did not need presentation for acceptance. Pendleton v. Knickerbocker Life Ins. Co., 5 Fed. R 238; Landrum v. Trowbridge, 2 Met (Ky.) 281; Carmi-chael v. Pennsylvania Bank, 4 How. (Miss.) 567. But this rule was ignored in House v. Adams, 48 Pa. 261.

3See Sec. 208, ante, and Sec. 241, post 4 Chanoine v. Fowler,3 Wend. 173.

5 See last case cited.

6 See note 2, supra, and Mitchell v. Degrand, 1 Mason, 176.

7 Scattergood v. Finley, 20 Ga. 423. The opinion in this case is a curious and absurd performance by Lumpkin, J. The ground of the court's decision is foolish. The true ground is the one given above in the text. If the notice be given of the qualified acceptance, the prior parties are held as a matter of necessity. Rowe v. Young, 2 Bligh, 891.

8 Mitchell v. Degrand, 1 Mason, 176.

9Edson v. Fuller, 22 N. EL 183.