3dly. Form But it must nevertheless be declared on specially, with an avermen. and ffect that the conditon has been performed. of accept ances. Partial or varying. With respect to the mode of annexing the condition, it is observed, that if a man intend to make a conditional acceptance, and accept in writing, he should be careful to express in such written acceptance the condition he may think proper to annex; for if the acceptance be in writing, but the condition be not, he will not be at liberty to avail himself of it against any subsequent party, if either such party, or any intermediate one between him and the person to whom the acceptance was given, took the bill without notice of the condition, and gave a valuable consideration for it; and at all events, the onus of proving such condition will lie upon the acceptor." If, however, the terms of the acceptance be ambiguous, parol evidence may be resorted to in order to explain them. And where an executrix gave an acceptance for a debt due from her testator, and at the same time took a written engagement on another paper from the drawer to renew the bill from time to time until sufficient effects were received from the estate: this was held a sufficient qualification of the acceptance.> A partial acceptance varies from the tenor of the bill, as where it is made to pay part of the sum for which the bill is drawn, or to pay at a [182 different time, or place. An acceptance may also vary from the tenor, in the manner in which the acceptor undertakes to pay the bill; as for instance, part in money, and part in bills, or payable at a banker's, &c.; Matthews, 1 T. R. 182. supra, n. Lewis Langston v. Corney, 4 Campb. 176. "Clarke v. Cock, 4 East, 73. Kains v. * Swan v. Cox, 1 Marsh. 179. y Bowerbank v. Monteiro, 4 Taunt. 844. 1271. 183. 4d. was drawn on the defendant a Molloy, 283. In Price v. Shute, as 1 Taunt. 423. Lawrence, J. observed, that Master v. Miller, three Judges against Buller, thought there must have been some mistake in Molloy's account of that decision, or that the case was not law; and that; Lord Kenyon held the case not to conflict with Master v. Miller, because there the acceptance only was altered, and there was no alteration of the bill itself. Bayl. 87. Walker v. Atwood, 11 Mod. 190. A bill was drawn on the defendant 8th April, and no time fixed for its payment, it was presented to the defendant 18th April, and he accepted it to pay the 8th September, this being stated in the declaration, the defendant demurred, and insisted, that as no time was prescribed for the payment, the bill was payable at sight, and then a promise to pay two or three months after sight was not an acceptance within the custom of merchants, but the court held it was an acceptance within the custom, and the demurrer was overruled. b See the cases of Sebag v. Abitbol, 4 M. & S. 462. Gammon v. Schmoll, 5 Taunt. 344. post. Per Abbott, J. Cowie v. Halsall, 4 B. & A. 198, 9. C Petit v. Benson, Comb. 452. A bill was accepted to be paid half in money and half in bills, and the question was, whether there could be a qualification of an acceptance, and it was proved by divers merchants that there might, for that he might refuse the bill totally and accept it in part, but that the holder was not bound to acquiesce in such acceptance. this also differs from a bill in its original formation, which we have seen 3dly. Form must be for the payment of money only. and effect of accept In case of an acceptance varying in a material respect from the tenor of the bill, the holder, if he intend to resort to the other parties to the bill in default of payment, should immediately give notice to them of such conditional or partial acceptance, and should if he meant to avail himself of the acceptance, express in his notice, the nature of it; for any act from whence it may be collected that the holder does not acquiesce in the acceptance, such as a general notice of non-acceptance, will be a waiver of it." ances. acceptor, in The liability which an acceptance imposes on the drawee, may be collected from the preceding part of this chapter, in which it has been the liabili shown, that an absolute acceptance in an engagement to pay according ty of the to the tenor of the bill, and a conditional or partial one, to pay ac- and of his cording to the tenor of the acceptance, and a drawee having accepted rights a bill after a condition annexed thereto by the indorser, is bound there- certain caby, and should not pay the bill until the condition be performed. Hees. is primarily liable to pay the bill, and the drawer and indorsers are [ 183 ] liable on his default. But he is not liable to pay re-exchange. If he accepted the bill without value, and for the accommodation of the plaintiff, he may resist the payment altogether, and he is at liberty to show that the acceptance was partly only for value, and as to residue, for the accommodation of the plaintiff." It has been already observed, that as the interests of third persons are in general involved in the efficacy of a bill, an acceptance will, when the bill is in the hands of a third person who has given value for it, and who became the holder before it was due, be obligatory on the acceptor, though he received no consideration, and although the holder knew that circumstance;" for the very object of an accommodation acceptance, is to enable the party accommodated to obtain money or credit from a third person, and therefore the want of consideration furnishes no defence to one who had advanced money on the credit of the acceptor, though he may have been de a Ante, 45. • Mar. 68. 85. Paton v. Winter, 1 Taunt. 422, 3. Per Bayley, J. in Sebag v. Abitbol, 4 M. & S. 466, Bayl. 115, 6. Sproat v. Matthews, 1 T. R. 182. Bentinck v. Dorrien, 6 East, 200. Bayl. 116. Sproat v. Matthews, 1 T. R. 182. The drawee, of a bill of exchange, when a bill was presented to him for acceptance, said, that a ship was consigned to him and a person in Bristol, and that till he should know to which port the ship would come, he could not accept; but afterwards said that the bill would be paid though the ship should be lost; the plaintiff noted the bill for non-acceptance. The ship did afterwards arrive, and the defendant disposed of the cargo, and in an action against the defendant as acceptor, Buller, J. held, that the acceptance was conditional only, and that the noting showed that the plaintiff did not choose to take it, and directed a nonsuit, and upon a rule to show cause why there CHITTY ON BILLS, should not be a new trial, the court & Poth. pl. 164. Leftley v. Mills, 4 T. 30. h Poth. pl. 115. 6, 7. i Robertson v. Kensington, 4 Taunt. k Laxton v. Peat, 2 Campb. 187. n. 1 Woolsly v. Crawford, 2 Campb. 445. Napier v. Crawford, 12 East, 420. m Darnell v. Williams, 2 Stark. 166.Ante, 69, &c. Ante, 69. Simmonds v. Parminter, 1 Wils. 187, 8. Vere v. Lewis, 3 T. R. 183. Master v. Miller, 4 T. R. 339. Poth. pl. 118. 121. Molloy, pl. 28. and Mallet v. Thompson, 5 Esp. Rep. 178. Knox v. Smith, 3 Esp. 46. per Lord Eldon, C. J. In an action against the acceptor of a bill by an indorsee, for a valuable consideration, it is no defence that the bill was accepted merely for the accommodation of the drawer, and that this was known to the plaintiff; secus where the indorsee has notice that the bill ty of the 4thly. Of frauded by the drawer." The judgment of Lord Eldon in Smith c. the liabili- Knox, states the law very clearly upon this subject. He said, "If a acceptor. person gives a bill of exchange for a particular purpose, and that is known to the party who takes the bill; as if for example, to answer a particular demand, there the party taking the bill cannot apply it to a different purpose; but where a bill is given under no such restriction, but merely for the accommodation of the drawer or payee, and that is sent into the world; it is no answer to an action on that bill, that the defendant accepted it for the accommodation of the drawer, and that that fact was known to the holder; in such case, if the holder gave a bona fide consideration for it, he is entitled to recover the amount though he had full knowledge of the transaction. And though the holder of a bill may have received it with full notice of its having been accepted for the accommodation of the party dealing with him, yet he may retain the same as a security for a subsequent balance, unless the accommodation acceptor withdraw such bill ; but if a bill be accepted for the accommodation of the drawer for a particular purpose, which is afterwards satisfied, and the holder have notice thereof, he cannot afterwards apply the bill as a security upon another transaction; and therefore if A. accept a bill for the accommodation of B., which B. delivers over to C., his creditor, to provide for a bill about to become due, and C., before A's. acceptance becomes due, returns it to B. as useless, in order that it may be forwarded to A., and abandons all claim on the bill, he cannot, by subsequently obtaining possession of the bill, acquire a right of action against A. ; and where the drawer of a bill, accepted for his accommodation, indorsed it for value to his bankers, and before the bill became due became bankrupt, it was held, that the bankers, who knew that the bill was accepted for the accommodation of the drawer, could not recover from the acceptor more than the amount of their balance, as between them and the drawer at the time of his bankruptcy; and where it can be shown that the plaintiffs are agents for a third person, who ought not in justice to recover the amount of the bill, such proof will defeat the action."(1) [185] An acceptance by an executor on account of debts due from his tes was drawn for a particular purpose, and Id. ibid. Ex parte Marshall, 1 Atk. P 3 Esp. Rep. 46. and see the observations of the court as to the liability of an accommodation acceptor, in Fentum v. Pocock, Marsh. 16, 17. Atwood and another v. Crowdie and another, 1 Stark. 483. A. and Co. bankers in the country, being pressed by B. and Co. bankers in town, to whom they are indebted, to send up any bills that they can procure, transmit for account an accommodation bill accepted by D. and Co. When the bill becomes due, the balance is in favour of B. and Co. but the bills are not withdrawn, and afterwards the balance between the houses turns considerably in favour of A. and Co. and is so when B. and Co become bankrupts. It was held that A. and Co. were entitled to recover against the acceptor. Upon a motion for a new trial it was contended, that the bill had not been sent for the purpose of securing a fluctuating balance, but on account of a then existing debt. Lord Ellenborough. Upon what terms D. and Co. originally accepted the bill does not appear, but the circumstances indicate what the nature of the transaction was; their not withdrawing their bills or demanding them back, showed that they considered themselves to be sureties. Cartwright v. Williams, 2 Stark. 340. Jones v. Hubbert, 2 Stark. 304. (1) An accommodation bill is not issued, until it is in the hands of some person who is entitled to treat it as a security available in law. Downes v. Richardson, 5 Barn. & Ald 674. Ante, 106. ty of the acceptor. tator, is an admission of assests, and will therefore make him personally 4thly. Of responsible in case there be no effects of the testator in his hands ; and the liabili it is no defence for an acceptor to an action by a bona fide holder, that the drawer's name has been forged ; and if the drawee, on being asked if the acceptance be his hand-writing, answers that it is, and that it will be duly paid, he cannot afterward set up as a defence, forgery of his name, for he has accredited the bill, and induced another to take it.(242) If the holder of a bill, the acceptance of which turns out to have been forged by an indorser, delivers it up to him and receives a fresh bill, he may recover upon the latter, unless there was an agreement between him and such indorser to stifle a prosecution for the forgery. King v. Thom, 1 T. R. 487. *Price v. Neal, 3 Burr. 1354. 1 Bla. Rep. 390. S. C. Two forged bills were drawn upon the plaintiff, which he accepted and paid; on discovering the forgery, he brought this action for money had and received, to recover back the money. At the trial, the jury found a verdict for the plaintiff; and on a case reserved, Lord Mansfield said, it was incumbent on the plaintiff to be satisfied that the bills drawn upon him were the drawer's hand-writing, before he accepted and paid them; but it was not incumbent on the defendant to inquire into it. See also Smith and another v. Mercer, 1 Marsh. 453. S. P. and Jones v. Ryde, id. 160. Barber v. Gingel, 3 Esp. Rep. 60. Ante, 173. Wilkinson v. Lutwidge, Stra. 648. In an action against the acceptor of a bill, Raymond, Č. J. allowed the plaintiff to read the bill, without proving the drawer's hand, because he thought the acceptance a sufficient acknowledgment on the part of the defendant; but he said it would not be conclusive; and if the defendant could show to the contrary, the reading of the bill should not preclude him. Jenys v. Fawler, 2 Stra. 946. In an action against the acceptor of a bill, Raymond, C. J. held it was not necessary for the plaintiff to prove the drawer's hand, and on the defendant's calling witnesses to swear that they believed it was not the drawer's hand, the Chief Justice would not admit the evidence, and inclined strongly that actual proof of forgery would not exonerate the defendant. In Smith v. Chester, 1 T. R. 655, Bul ler, J. said, that when a bill is presented for acceptance, the acceptor looks to the hand-writing of the drawer, which he is afterwards precluded from disputing, and it is on that account he is liable, even though the bill is forged. Per Dampier, J. in Bass v. Clive, 4 M. & S. 15. Suppose the drawer's name is forged, yet if the drawee accept the bill, he is precluded from averring, as against strangers, that it is a forgery. 226. The plaintiff, before he took a bill, Leach v. Buchanan, 4 Esp. N. P. C. sent a person with it to the defendant, to inquire whether the acceptance upon it were his hand-writing; the defendant said that it was, and that it would be duly paid. He now offered evidence of the actual forgery of the acceptance; but Lord Ellenborough held, that that proof would not discharge the defendant; that after having so accredited the bill, and induced a person to take it, he was bound to take it. Verdict for the plaintiff. Cooper v. Le Blanc, 2 Stra. 1051. The plaintiff, on discounting a note, sent to the defendant to know whether an indorsement on it was his, and the defendant said it was, and the note would be paid when due; he would notwithstanding have given evidence by similitude of hands, that the indorsement was a forgery, but Lord Hardwicke would not allow it; he seemed inclined however to admit proof of actual forgery, but the defendant could not adduce it, and the plaintiff had a verdict. See Wilkinson v Lutwidge, Stra. 648. supra. 2 Wallace v. Hardacre, 1 Campb. 45. (242) It seems that if the drawee accept a forged bill in the hands of a bona fide holder, he is bound by it; for he is presumed to know the hand-writing of the drawer, and by his acceptance to take this knowledge upon himself. Levy v. Bank of the United States, 4 Dall. 234. S. C. 1 Binn. 27. At all events if he pay the bill, he cannot recover the money back. Ibid. And if a bank once pay a forged check, or carry it to the credit of the holder, it is conclusive upon the bank. Ibid. 4thly. Of the liabili ty of the acceptor. This obligation of the acceptor, it is said, is irrevocable. Thus in Mar. 83. 28. page 103. 7. Bayl. 88. In Trimmer v. Oddy and others, tried before Lord Kenyon, July 12th, 1800, Guildhall, London, Gibbs for plaintiff, Erskine for defendant; (MS. and cited in Bentinck v. Dorrien, 6 East, 200. See also Bayl. 88, in notes. Note, the declarations contained counts against the drawee for having mutilated the bill.) Lord Kenyon said, "If the drawee deface the bill, he is liable as acceptor. About forty years ago it was thought, that if a man wrote any thing upon a bill, he was to be bound as an acceptor; so that if a man had set down some sums of money, and cast them up on the back of the bill, that would amount to an acceptance. But this is a doctrine to which I cannot subscribe; but if a party put upon a bill that which essentially injures and defaces it, that makes him liable as acceptor. When the defendants had written an acceptance on the bill, they could not be allowed to strike it out again, the law gives no time to the party to change his mind, but if accepted by mistake, it might then be otherwise;" and Lord Kenyon said, he "inclined to think that in such case the drawee would not be liable." It is observed in Bayl. 88, n. 2. that this case was cited in Bentinck v. Dorrien, 6 East, 200. and the Hamburgh Ordinances was referred to, as having been recognised by Lord Kenyon to be the law of merchants here; and Lord Ellenborough said, "the rule is certainly laid down in the Hamburgh Ordinance, as stated that an acceptance once made cannot be revoked, though to be sure that leaves the question open as to what is an acceptance, whether it be perfected before the delivery of the bill." And Lawrence, J. in the last-mentioned case, 6 East, 201. said "when the general question shall arise, it will be worth considering how that which is not communicated to the holder, can be considered as an acceptance, while it is yet in the hands of the drawee, and where he obliterates it before any communication made to the holder." From this it would appear that Mr. J. Lawrence had taken the same view of this question as Pothier, who cites from La Serra, C. 10. a case where the holder of a bill having left it for acceptance, the drawee, before he returned it, cancelled the acceptance which he had written and signed upon it, and it was adjudged that this acceptance was annulled, and observes "La raison est, que le concours de volontés qui forme un contrat, est in concours de volontés que les parties se Molloy, book 2. chap. x. pl. sont reciproquement declarees; sans cela, la volenté d'une partie ne peut acquérir de droit a l'autre partie, ni par conséquent être irrevocable. Suivant ces principes, pour que le contrat entre le propriétaire de la lettre et celui sur qui elle est tirée, soit parfait, il ne suffit pas que celui-ci ait en pendant quelque temps la volonté d'accepter la lettre, et qu'il ait écrit au bas qu'il l'acceptoit; tant qu'il n'a pas déclaré cette volonteé au porteur, le contrat n'est par parfait; il peut changer de volonté et rayer son acceptation." Traité du Contrat de Change, part 1. ch. 3. s. 3. pl. 44. See also Emerigon Traité des Assurances, ch. 2. s. 4. p. 45. who observes that La Serra, "Pose en maxime, que tant que l'acceptant est maitre de sa signature, c'est à dire, qu'il n'a pas délivré la lettre de change il peut rayer son acceptation." See also Stevenson on Bills, p. 162. 164. Thornton v. Dick and others, 4 Esp. Rep. 270. A bill drawn on the defendants payable three months after sight, was, on the 1st of October, left with them by the plaintiffs for acceptance. It was not called for until the 11th, when it appeared that the words "accepted 1st October, 1799, Q. Dick and Co." had been written upon the bill, and afterwards nearly obliterated by ink, the words, however, were still legible; at the time of drawing the bill, the defendants were in advance to the drawer. The plaintiffs, as indorsees, sued the defendants as acceptors, the acceptance and subsequent cancellation were admitted, and the only question was, whether the cancellation having been made before the re-delivery of the bill, had discharged the acceptor. But Lord Ellenborough said, that if a party once accepted a bill he had done the act, and could not retract, and that there was no difference in point of legal effect, whether the bill were payable after sight or after date. Verdict for the plaintiffs. Roper and others v. Birbeck and others, 15 East, 17. A bill of exchange having been accepted payable at Ladbrooke's with a direction in writing on it, "in case of need to apply at Boldero's" and having been dishonoured when due at Ladbrooke's, and thereupon brought to Boldero, who thinking that it had been made payable at his house, under that inistake cancelled the acceptance; but presently observing the mistake, wrote under it, "cancelled by mistake," and signed his initials to it; yet, nevertheless, paid the bill for the honour of the plaintiffs, whose indorsement was on it; it was held, that the plaintiffs, on the proof of such cancellation by mistake, might re |