of acceptor; and

If, however, an acceptor, in satisfaction of his liability, 4thly. Liability indorse another bill, and the holder be guilty of laches, how discharged. with respect to the latter, in not giving notice to such acceptor of the non-payment of the latter bill, he will thereby discharge such acceptor; but if the latter merely handed over the second bill as a collateral security, without indorsing it, he would not be discharged from liability on the first bill, by any laches of the holder of the second 2.

We have seen that the alteration of the bill, or of the acceptance, without the concurrence of the acceptor, and even in some cases with his assent, will discharge him from liability. And where the drawer of a bill accepted, payable at B. and Co. after keeping it three or four years, indorsed it to the plaintiffs, erasing the name of B. and Co. without the knowledge

having taken a cognovit from the drawer; and upon motion accordingly, and cause shewn, the court held, that the acceptor binds himself at all times to pay the holder (though not perhaps the drawer) until discharged by payment or release, and that though it were an accommodation bill, that would not alter the circumstances and discharge the rule.

Mallet v. Thompson, 5 Esp. Rep. 178. The plaintiff, holder of an accommodation note, who took it with full notice that the maker had received no value from the indorsee, for whose accommodation the defendant made it, and received a composition, and covenanted not to sue such indorsee, may, notwithstanding, sue the maker, though, on payment of it, he will have a right of action against the indorsee.

Harrison v. Cooke, 3 Campb. 362. Where upon an accommodation bill becoming due, it was presented for payment to the acceptor, and he promised to pay it, it was held that he was not discharged, by time being afterwards given without his consent to the drawer by the indorsee, who knew that it had been accepted for the drawer's accom modation.

In Carstairs v. Rolleston, 5 Taunt. 551. 1 Marsh. 207. S. C. it was discussed, but not determined, whether a release to the indorsee of an accommodation note, discharged the maker, if the holder was aware at the time of all the circumstances. 'Bridges v. Berry, 3 Taunt. 130.

* Bishop. Rowe, 3 M. & S. 362.-Hickling v. Hardy, 7 Taunt.

312..

3 Ante, 130 to 136.-Long v. Moore, 3 Esp. 155. n. A bill of exchange, after acceptance, had been altered by inserting the word "date" in the place of "sight." The plaintiff wanted to go on the common counts, and offered in evidence another bill drawn upon the defendant for the same amount, but not accepted. Lord Kenyon held, that the plaintiff could not recover against the defendant, for he was liable only by virtue of the instrument, which being vitiated, his liability was at an end.

4thly. Liability

of acceptor; and bow discharged.

Liability of a party promising to pay a bill.

of the acceptor; B. and Co. having failed since the acceptance, it was held that the acceptor was thereby discharged'. And though there is a case in which it has been supposed to have been decided, that if the holder strike out an acceptance, which varies from the tenor of the bill, and substitutes an acceptance according to the tenor, he may afterwards restore the acceptance he struck out, and that such acceptance will continue binding; yet it has been doubted whe ther the determination went further than to decide that the alteration in the acceptance, (though it annuled the acceptance, and discharged the acceptor) did not destroy the bill as to the other parties.3.

Besides the liability to pay a bill of exchange incurred by the act of accepting it, the drawee or another person may subject himself to liability to pay the amount out of money then in his hands, or which he may afterwards receive, and this, although the bill itself may be invalid; as where it has been drawn on an agent requesting him to pay a sum of money out of a particular fund, though we have seen that such instrument will be wholly void as a bill of exchange, because the payment of it depends upon a contin

1 Tidmarsh v. Grover, 1 M. & S. 735 ante, 133.

Price v. Shute, Beawes, s. 222. 1st edit. p. 444.-Mol). b. 2. c. 10. s. 28. A bill was drawn, payable 1st of January, and the drawee accepted it to pay the 1st of March: the holder struck out the 1st of March, and substituted the 1st of January, and sent the bill for payment on that day, which the acceptor refused; the holder then struck out the 1st of January, and restored the 1st of March. And in an action on this bill, the question was, whether these alterations did not destroy the bill, and Pemberton, C. J. ruled that they did not. And see observations in Paton v. Winter, 1 Taunt. 423.- Bayl. 87.

3 Master v. Miller, 4 T. R. 330. Lord Kenyon, in commenting on the case of Price v. Shute, observes, that the books do not say against whom the action was brought, and it could not have been against the acceptor, because his acceptance was struck out by the party himself who brought the action; and he concludes, "that on the person, to whom the bill was directed, refusing to accept the bill, as it was origi nally drawn, the holder resorted to the drawer;" however Buller, J. 4 T. R. 336. says, "that he cannot consider this case in any other light than as an action against the acceptor, because the books only state what passed between the holder and the acceptor."-And see Paton . Winter, 1 Taunt. 423. Bayl. 87.

party promising

gency '. Yet if the drawee promise to pay the amount Liability of a when he shall receive funds, and the holder in con- to pay a bill. sequence retains the bill, the amount, when received, will be recoverable from the drawee under the common count for money had and received2. So a draft on the executor of a debtor, which the executor promised to discharge on his receiving assets is an equitable assignment of the debt, available against assignees

'Ante, 56.

2

Stevens v. Hill, 5 Esp. Rep. 247. This was an action of assump sit; the first count was against the defendant as thè acceptor of a bill of exchange drawn by Admiral Smith on the defendant his agent; the others were the money counts. The bill had been burnt by accident, and the plaintiff gave parol evidence of it. The defendant was a navy-agent, and the bill was drawn by Admiral Smith, in this form, "out of my half-pay which will become due on the 1st of January, pay to Stevens £15." This was brought to Hill, who said he had then no money of Admiral Smith's in his hands, but that he would pay it out of the admiral's money when he received it. Admiral Smith was called, he produced an account furnished by Hill as his agent, containing an account of money received at different times on the admiral's account, and also of the bills drawn by him on Hill, on which there was a balance of £41 due to Hill. It was objected by Garrow, first, that the plaintiff could not recover on the count on the bill, as it ap peared to be not a bill of exchange, it being drawn on a particular fund, and not payable generally, which was necessary to constitute a legal bill of exchange. This count was abandoned by the SolicitorGeneral, who said, that he should go on the count for money had and received. To this it was answered, that the engagement of Hill was to pay the bill when he had money of Admiral Smith's in his hands, and that it appeared by the count which was produced by Admiral Smith, that the admiral was the debtor of Hill, and of course that Hill had no funds in his hands out of which only the bill was to be paid. Lord Ellenborough having taken the papers produced, in which the receipts of money and entries of bills were put under their respective dates, observed, that though on the general balance, a sum of £40 was due to the defendant, yet by referring to dates it would appear that Hill, after the day the bill was brought to him for acceptance, and after his declaration as proved, and before he had been called upon to make any payment, had received money of Admiral Smith's more than sufficient to answer the bill, it was therefore his duty to have reserved for that bill, and not to have paid other drafts subsequently drawn; he was not therefore protected by subsequent payments. His Lordship added, that a similar case of an army agent occurred before Lord Kenyon, in which the agent had promised to pay the draft of a person on him, and having neglected to do so, an action was brought; that he was of counsel for the defendant in that cause, and argued that this promise of the agent was nudum pactum, but Lord Kenyon over-ruled the objection, and held, that it was an appropriation of so much to the use of the holder of the draft, and made him liable on the receipt of any money upon the credit of which it was drawn.-De Bernales, Fuller, cited in 14 East. 590. D. a. 598. S. P.

Liability of a party promising to pay a bill.

in bankruptcy'. But as a chose in action is not assignable so as to enable the assignee to sue the original debtor merely by virtue of such assignment, it follows, that unless the third person who has funds in hand, expressly promises to pay, and such promise be accepted, the holder of the bill cannot sue him; and if before the party offer to pay the bill it has been retained for non-acceptance3, the holder has no remedy against such party.

j Ex parte Alderson and another, 1 Maddox, 53, 55.—2 Rose, 13. App. Jane Row became indebted to the petitioners in £525, and being a creditor of the estate of John Fish, deceased, gave them a draft on the executor as follows:-Please to pay Messrs. G. and T. Alderson, or order, four hundred and seventeen pounds, six shillings, as part of the amount due to me for plumber's work done for the late John Fish, Esq. Jane Row." The petitioners presented the draft to the executor, but he, not being prepared with assets, did not accept it, but retained it, to be paid when there should be funds. The ViceChancellor. This is a good equitable assignment; the executor bound himself to pay when in possession of assets.

2 Williams v. Everett and others, 14 East. Rep. 582. Kelly residing abroad, having remitted bills on England to the defendants, his bankers, in London, with directions in the letters inclosing such bills, to pay the amount in certain specified proportions to the plaintiff and other creditors of Kelly, who would produce their letters of advice from him on the subject, and desiring the amount paid to each person to be put on their respective bills, and that every bill paid off, should be cancelled; and the plaintiff having, before the bills became due, given notice to the defendants that he had received a letter from Kelly, ordering payment of his debt out of that remittance, and having offered them an indemnity if they would hand over one of the bills to him, but the defendants having refused to indorse the bill away, or to act upon the letter, admitting, however, that they had received the directions to apply the money, and the defendants having in fact afterwards received the money on the bills when due, held that they did not by the mere act of receiving the bills and afterwards the produce of them, with such directions, and without any assent on their part to the purport of the letter, and still more against their express dissent, bind themselves to the plaintiff so to apply the money in discharge of his debt due to him from Kelly, and consequently that the plaintiff, between whom and the defendants there was no privity of contract, express or implied, but on the contrary, it was repudiated, could not maintain his action against the defendants as for money had and received by them to his own use, but that the property in the bills and their produce still continued in the remitter. And see Assignees of Holland v. 1 Salk. 143.-Williamson v.

Thompson, 16 Ves. jun. 442.

3

Stewart and another. Fry and another, 1 Moore's Rep. 74. Where persons have received money for the express purpose of taking up a bill of exchange two days after it became due, and upon tendering it to the holders and demanding the bill, find that they have sent it back protested for non-acceptance to the persons who indorsed it to

ceptor and his

In the case of an acceptance for the accommodation Indemnity to ac of the drawer, it is usual to take from the drawer a right. written undertaking to indemnify him, which, when it is for a sum above £20, should be stamped as an agreement; but where there is any risk of bankruptcy, it is advisable to take a counter bill or note so as to enable the acceptor to prove under the commission against the drawer'. In the absence of any express contract, the law implies a contract to indemnify". And it should seem, that if an agent has accepted bills for the accommodation of his employer, he may in some cases retain money in his hands to discharge it, unless the bill be delivered up to him, or he be otherwise sufficiently indemnified3. And where a sum of money has been lodged with a party to indemnify him against bills of exchange he has accepted for the accommodation of another, an action will not lie against him to recover the money while the bills are outstanding, although the statute of limitations has run upon them. them. And where a person who has funds in his hands belonging to another, or is otherwise indebted to him, accepts a bill for his accommodation, and the drawer afterwards commits an act of bankruptcy, or becomes insolvent, such acceptor may retain the funds or debt until the bill becomes due, as an indemnity against his liability as acceptor. And since the 49 Geo. 3. c. 121. s. 8. an accommodation acceptor, being in the nature of a surety to the drawer,

them. Held, that such persons having received fresh orders not to pay the bill, were not liable to an action by the holders for money had and received, when upon the bills being re-procured and tendered to them, they refused to pay the money.

See post as to the proof of a bill by surety, and as to cross paper. *Young v. Hockley, 3 Wils. 346. and 262.-Sparkes v. Martindale, 8 East. 593. As to what damages the sureties may recover, even costs in error, see 3 Wils. 13.-1 Atk. 262.

'Madden v. Kempster, 1 Campb. 12.-Ex parte Metcalfe, 11 Ves, 407.

*Morse v. Williams, 3 Campb. 418.

5 Wilkins v. Casey, 7 T. R. 711. as observed upon in Willis v. Free man, 12 East. 659.-11 Ves. jun. 407.-1 Campb. 12.