bill to at X., employed C. to carry and deliver them to B. and engaged to pay Effect of C. for the freight, and C., on delivering them according to the order, delivery of took a bill of exchange from B. drawn on A. which bill was never paid, payee. it was holden that A. was liable to pay the amount of the freight to C. notwithstanding the bill of exchange. And where a person, in payment of goods, gives an order on his banker to pay the amount in bills, [100] and the vendor takes bills for the amount, he will not lose his remedy against his original debtor, unless he be guilty of laches. And it has been decided, that the circumstance of the manager of a colliery paying a creditor on the colliery, with a bill, which is not paid, the colliery remains liable to the payment of the original debt. In Ex parte Blackburne, the Chancellor said, "I take it to be now clearly settled, that if there is an antecedent debt, and a bill is taken, without taking an indorsement, which bill turns out to be bad, the demand for the antecedent debt may be resorted to. It has been held, that if there is no antecedent debt, and A. carries a bill to B. to be discounted, and B. does not take A's. name upon the bill, if it is dishonoured there is no demand; for there was no relation between the parties, except that transaction; and the circumstance of not taking the name upon the bill, is evidence of a purchase of it. In a sale of goods, the law implies a contract that those goods shall be paid for. It is competent to the party to agree that the payment shall be by a particular bill. In this instance it would be extremely difficult to persuade a jury under the direction of a judge, to say, "an agreement to pay by bills was satisfied by giving bill, whether good or bad." (130) at two months. Parker gave Dickson a check on his bankers at Liverpool, requesting them to pay him in a bill at three months; the Liverpool bankers drew upon his agents in London, in favour of Dickson for the amount, but before the last bill became due, Parker and the banker became bankrupt. The Chancellor ordered that Dickson should prove the bill under the commission against the bankers and their agents, and claim the rest under Parker's commission. Tapley v. Martens, 8 T R. 451. This was an action of debt-on charter-party from London to Ancona Plaintiff delivered his cargo to the consignor of defendant, and applied to him for the payment of the freight. Plaintiff took a bill of exchange drawn by the consignee on defendant, which was not paid, in consequence of the consignee becoming insolvent. It was urged on the part of the defendant, that the plaintiff had given personal credit to the consignee by Ex parte Dickson, cited in 6 T. R. (130) The rules laid down in respect to the operation of payments by bills and notes are in general recognised in the United States; but with some seeming diversity arising from local usages. In New York a bill of exchange or promissory note, either of the debtor or any other person, is not payment of any precedent debt, unless it be so expressly agreed. Murray v. Governeur, 2 John. Cas. 438. Herring v. Sanger, 3 John. Cas. 71. Tobey v. Barber, 5 John. Rep. 68. Schermerhorn v. Lomis, 7 John. Rep. 311. Johnson v. Weed, 9 John. Rep. 310. Putnam v. Lewis, 8 John. Rep. 389. Wetherby v. Mann, 11 John. Rep. 513. Arnold v. Camp, 12 John. Rep. 409. Neither is a receipt for a note, as cash, evidence that it was taken as an absolute payment. bey v. Barber. The receipt of a note is merely a suspension of the right of action on the original consideration, during the time allowed for the payment of it. Tobey v. Barber. The creditor is not obliged to sue upon such note; he may return it when dishon To Effect of If a bill of exchange or promissory note be altered, without the con the altera-sent of the parties, in any material part, as in the date, sum, or time tion of a bill, &c. oured, and resort to his original demand. It therefore only postpones the time of payment of the old debt until a default be made in the payment of the note. Ibid. Yet the acceptance of a negotiable note on account of a prior debt, is so far evidence prima facie of satisfaction, that no recovery can be had on such prior debt without producing the note at the trial and cancelling it, or showing that it has been lost without having been indorsed. Holmes v. De Camp, 1 John. Rep. 34. Angel v. Felton, 8 John. Rep. 149. Cummings v. Hackley, 8 John. Rep. 202. Pintard v. Tackington, 10 John Rep. 104. Smith v. Lockwood, 10 John. Rep. 366. And if the creditor part with the note or bill, or if it be the note or acceptance of a third person, and the creditor be guilty of laches in not presenting it for payment in due time, it will discharge the debtor from the original debt. Tobey v. Barber. And the same rules apply to a check given in payment of a pre-existing debt, for unless it be paid by the drawee, resort may be had by the holder to his original debt. The people v. Howell, 4 John. Rep. 296. And if upon a sale of goods the notes of a third person payable at a future day, are upon a frádulent misrepresentation agreed to be received as an absolute payment at the risk of the vendor, the vendor may immediately bring an action for the goods sold; for the fraud will avoid the transaction. Wilson v. Force, 6 John. Rep. 110. If there be an agreement to accept notes in payment of goods sold, and before delivery, of the goods the notes turn out to be bad, the party is not bound to receive them unless he agreed to receive them at all events, and to run the risk of their being paid. Roget v. Merritt, 2 Caines' Rep. 117. And if a party receive in payment for goods sold, counterfeit bank notes, or other notes which prove of no value, it is not a payment, although the debtor paid them bona fide supposing them to be valid, unless the vendor took upon himself expressly, the risk of forgery. Markle v. Hatfield, 2 John. Rep. 455. And see Ellis v. Wild, 6 Mass. Rep. 321. Breed v Cook & Caldwell, 15 John. Rep. 241. In the Supreme Court of the United States it has been held that no action can be maintained for goods sold by a person who has received a negotiable note as conditional payment and has passed that note away. Harris v. Johnson, 3 Cranch. Rep. 311.; and that a note without a special contract, does not of itself discharge the original cause of action, unless by express agreement it is received as payment. Semb. Sheehy v. Mandeville, 6 Cranch. 253.; and that where a note has been received as conditional payment, it will be a discharge of the debt, unless it be proved that due diligence has been used to receive the money, and that it cannot be obtained. Clark v. Young, 1 Cranch, 191. In Massachusetts, a note of the debtor, not negotiable, is not deemed a payment of a pre-existing debt. Greenwood v. Curtis, 4 Mass. R. 93 Maneely v. M Gee, 6 Mass. R. 143. But it has long been settled as law in that state that a negotiable note, given in consideration of a simple contract debt, is a discharge of such debt; and that the law will presume that a negotiable note is agreed by the parties to be payment of such contract. This presumption however may be encountered by proving an express agreement that the note should be received as collateral security. Thacher v. Dinsmore, 5 Mass. Rep. 299. Maneely v. M. Gee, Chapman v. Durant, 10 Mass. Rep. 47. If the note of a third person be taken in payment of a debt, it operates as a complete discharge of the debt. Wiseman v. Lyman, 7 Mass. Rep. 286. However, where an order was drawn on a third person in favour of the vendor in part payment of the cargo of a vessel, and paya ble on the return of the vessel from her voyage, it was held no payment of the original demand, although upon the giving of the order and receiving payment of the residue of the sum, the vendor had signed a receipt in full. The court did not think that there was sufficient proof that the vendor was to depend in all events for the payment of this sum upon the vessel's return; but that this event was probably to fix the length of credit. Tucker v. Maxwell, 11 Mass. Rep. 143. And if A. sells goods to B. and agrees to receive certain notes in payment, and it be afterwards discovered that the notes are forgeries, though unknown to the parties at the time, no action lies against B. for the price of the goods. Aliter if payment by the notes was not part of the original stipulation, but an accommodation to the vendee. Ellis v Wild, 6 Mass. Rep. 321. See 1 Peters" Rep. 266. If bills are received on account of a debt, and protested for nonpayment, and in an account rendered, the drawer is charged with the usual damages, this amounts to an election to consider the bill as payment. Watts v. Willing, 2 Dall. Rep. 100. See also, Chapman v. Steinmetz, 1 Dall. Rep. 161. And if in such a case, the creditor return the bill and request a remittance on account of the debt, this amounts to an extinguishment and waiver of the bill; and, if it be one of a set, to an extinguishment of all of them. Ingraham v. Gibbs, 2 Dall Rep. 134. A note given by a debtor to the agent of his creditor for goods sold in order to obtain a discount thereon, and afterwards given up through misrepresentation of the drawer, is the altera tion of a when payable, such alteration will, at common law, and independently Effect of of the stamp acts, render the bill or note wholly invalid, as against any party not consenting to such alteration; and this although it be in the hands of an innocent holder. Thus, an alteration in the date of a bill of exchange after it has been accepted and indorsed, without the acceptor's or indorser's consent, will discharge them from liability, even though such alteration were made by a stranger; and where a bill of 101 ] exchange had been accepted generally, aad the drawer without the consent of the acceptor added the words, "payable at Mr. B'.s Chiswell Street," it was held that this was a material alteration, and that the acceptor was thereby discharged ; and where an alteration is made with a fraudulent intent, it will amount to forgery ;" and if there be no privity between the holder and the party sued, the former cannot recover even for the consideration of the bill." But if an alteration be made in any part of a bill which is not ma Master v. Miller, 4 T. R. 320. 5 T. R. 367. 2 Hen. Bla. 141. Anstr. 225. S. C. Com. Dig. Fait. F. 1. Powell v. Divett, 15 East, 29. Master v. Miller, 4 T. R. 320. 2 Hen. Bla. 141. S. C. In an action by indorsees against the acceptor of a bill payable three months after date, to Wilkinson and Cooke, the declaration had one count on the bill, as dated the 20th March, and another as dated the 26th March. The jury found a special verdict, stating that the bill was drawn and dated the 26th, that it was accepted, and that afterwards and whilst it remained in the hands of Wilkinson and Cooke, the date was altered from the 26th to the 20th March, without the defendant's knowledge, and by some person unknown to the jury. That after such alteration it was indorsed for a valuable consideration by Wilkinson and Cooke, to the plaintiff's. After two arguments, Lord Kenyon, Ashurst, and Grose, Justices, held, that the alteration, although by a stranger, vacated the bill. Buller, J. differed, but on error, the whole court was so clear that it was vacated, that they would not hear a second argument, and judgment for the defendant was affirmed. See Henfree v. Bromley, 6 East, Rep. 309. Cowie v. Halsale, 4 B. & A. 197; but see 2 Geo. 4. c. 78. The King v. Treble, 2 Taunt. 329. This was an indictment against the defendant for forgery, with intent to defraud Messrs. Kelliway. It appeared that Messrs. Kelliway, who were bankers in the country, made their re-issuable notes payable at Sir M. Bloxam and Co. bankers, London; upon the failure of Bloxam and Co. Messrs. K. appointed Messrs. Ramsbottom and Co. their agents, and caused the words "Ramsbottom and Co." to be engraved on small slips of paper, with which they covered the words Sir M. Bloxam and Co. and fastened them on their notes with gumwater. It also appeared that a parcel of notes which had been sent by Messrs. Bloxam and Co. to Messrs. K. by the coach, had been stolen, and that the defendant had caused similar slips of paper to be pasted over divers of the stolen notes, containg the words "Ramsbottom and Co." and negotiated them, but it did not appear that either Messrs. Ramsbottom and Co. or Messrs. K. had paid any of the notes so altered. It was objected for the defendant, this alteration did not amount to forgery, and the prisoner was respited until the opinion of the twelve Judges could be had. After argument, the Judges were of opinion, that the act done by the prisoner was a false making in a circumstance material to the va lue of the note, and its facility of transfer, by making it payable at a solvent instead of an insolvent house; and see 4 Bla. Com. 247, 249. Master v. Miller, 4 T. R. 325. 330. • Long v. Moore, Sittings after Hil. Term, 1790, cited 3 Esp. 155, in notes. Assumpsit by the indorsee of a bill against an acceptor; after the acceptance, the word, "date" was inserted in place of "sight," in which form it had originally been drawn. The acceptor being thereby discharged, the plaintiff wanted to go on the common counts, and offered in evidence another bill, drawn by the same drawer on the defendant, for the same amount, but not accepted. Lord Kenyon ruled, that it could not be done; nor could the plaintiff recover at all against the acceptor (the defendant) for he was liable only by virtue of the instrument which being vitiated, his liability was at an end. no extinguishment of the original debt, Lewis v. Manly, 2 Yeates, Rep. 200. Suckley . Furze, 15 John. Rep. 338. tion of a Effect of terial, or be made merely for the purpose of correcting a mistake, and the altera in furtherance of the original intention of the parties, such alteration, though made after the bill is complete, will not invalidate it either with regard to the stamp-laws or otherwise. Thus, before the late decision, and where an acceptance engaging to pay at a particular place, was considered as not qualifying the contract, if after a bill has been accepted generally, the acceptor wrote upon it the place where he wished it to be presented for payment when due, it was held, that such addition would not render the bill void. So the insertion of the words "or order" in a note intended to be negotiable, but which had been omitted by mistake, will not render it inoperative against any of the parties. So where a person who was indebted to another, had agreed to give him a bill of exchange in payment, which was to be drawn by him and accepted by a third person, and sent a promissory note drawn by himself, and indorsed by the person who was to have been the acceptor, it was held that such promissory note might, before it was circulated, be altered into a bill of exchange, according to the original agreement of the parties, such alteration being considered as a mere correction of a mistake ; and P Sanderson v. Symonds, 1 Brod. & 9 Trapp v. Spearman, 3 Esp. Rep. 57. Marson v. Petit, 1 Campb. 82. In- Kershaw v. Cox, 3 Esp. 246, recog In alteration was merely the correction of a mistake, for the alteration was a very material one. And see Coles v. Parkin, 12 East, 471. • Webber v. Robert Maddocks, 3 Camph. 1. Indorsee against the acceptor of a bill of exchange. It appeared that Samuel and Robert Maddocks, being indebted to the plaintiff in the sum of 1107, they agreed to give him a bill of exchange at four months for this amount, to be drawn by Samuel and accepted by Robert. Instead of a bill of exchange they sent him a promissory note in the following form: London, 10th Dec. 1810. Four months after date, I promise to pay to my own order, one hundred and ten pounds, value received. Indorsed, S. Maddocks. R. Maddocks. S. Maddocks. The plaintiff was dissatisfied with the security in this form, and returned it that it might be altered into a bill of exchange, according to the agreement. The words "I promise to," were immediately struck out, a direction to R. Maddocks was subjoined, and he wrote his name as acceptor of the bill. It was then delivered back to the plaintiff. For the defendant it was insisted that the instrument was completely vitiated by this alteration. Lord Ellenborough. I think the stamp impressed upon this paper is sufficient to render the instrument available in its present form. It cannot be considered as having been negotiated as a promissory note. It never was issued to third persons. It remained in the hands, and under the dominion of the original parties. Every thing continued in fieri till after the alteration. The stamp was not occupied till then. Webber instantly rejected it as a promissory note. The alteration only fulfilled the at the request of the drawer, a bill may, before acceptance, be altered, and postponed as to the date, without vitiating it, or rendering a new the alterastamp necessary.t Where, however, the drawer of a bill of exchange, which was accepted, payable at the house of a banker, who had become insolvent, erased the name of that banker, and substituted the name of a solvent banker, without the consent of the acceptor, such alteration was considered so material, as at common law to invalidate the bill against him, though in the hands of an indorsee for a valuable consideration, who was ignorant of the circumstances, upon the ground that it caused the bill to carry with it the appearance of solvency, by being directed to a solvent house instead of an insolvent one, and thereby held out a false colour to the holder, and likewise varied the contract of the acceptor by superadding an order upon another house to pay the bill." tion of a bill, &c. Any material alteration made in a bill of exchange or promissory note after it has been once perfected, even with the consent of the parties, except in the before-mentioned cases, will render it absolutely void, it having been enacted, that there shall be no alteration in a stamped instrument after it has been used for one purpose; and every alteration of a bill or note after it is once complete, is considered as a fresh drawing or making, and the circumstance of the bill or note not having been negotiated, will not afford any exception. And even where a bill which had been accepted for the accommodation of the drawer, was al- [104] tered by him as to the time of payment, with the consent of the acceptor, and before it was actually negotiated, such alteration was held to render the bill absolutely void. So where the date of a bill of exchange was altered by the payee at the request of the acceptor, such alteration was considered to render the bill wholly void, and to preclude the payee from maintaining any action thereon even against such acceptor. And if a bill be altered in the terms of the agreement, and may be treated as the correction of a mistake. The plaintiff recovered. Peacock v. Murrell, 2 Stark. 558. • Tidmarsh v. Grover, 1 M. & S. 735. and Rex v. Treble, ante, 101, n. - See 1 Ann, stat. 2. c. 22. s. 2 and 3. to which the subsequent acts refer; per Le Blanc, J. in Bathe v. Taylor, 15 Last, 416. y Bowman ». Nicholl, 5 T. R. 537. A bill was dated 2d September, and payable twenty-one days after date; while it was in the hands of the drawer, it was altered with the consent of the acceptor to fiftyone days; on the 30th September it was again altered to twenty-one days; but the date was brought forward to 14th September, after which it was negotiated, and an action brought against the acceptor. Lord Kenyon said, that every alteration in an instrument requiring a stamp, made a new stamp necessary, and nonsuited the plaintiff. Upon a rule nisi for a new trial, it was urged that there was a distinction between an alteration made after the negotiation of a bill, and an alteration made before, and in the latter case, the whole might CHITTY ON BILLS. be considered as one transaction, but the Bathe v. Taylor, 15 East, 412. It was 2 Calvert v. Roberts, 3 Campb. 343. Bathe v. Taylor, 15 East, 412. See also Prince v. Nicholson, 1 Marsh. 72, n. (c.) Walton v. Hastings, 4 Campb. 223. 1 Stark. 215. S. C. Payee against the acceptor of a bill of exchange. The bill was drawn by one Brooks on the defendant, payable to the order of the plaintiff, dated 5th July; when the bill was presented for 0 |