4thly. Of the liabili ty of the acceptor. Trimmer v. Oddy and others, and in Thornton and others v. Dick and others, it was holden, that if the drawee of a bill put his name on it as acceptor, he cannot afterwards, even before it has been delivered to the payee, discharge his acceptance by erasing his name; and in a subsequent case, under similar circumstances Lord Ellenborough, C. J. observed," that the rule is certainly laid down in the Hamburgh Ordi"nance, 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 Mr. J. Lawrence observed, "that 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." According to the observations on Price and Shute in Paton v. Winter, it should seem that an acceptance may be altered though the bill itself cannot be; and from the case of Fernandez v. Glynn, it appears, that by the usage of trade in London, a check may be retained by the banker on whom it is drawn till five in the afternoon of the day on which it is presented for payment and then returned, although it has previously been cancelled by mistake. But it is reported, that Lord Ellenborough in that case said, "that had it "been a bill sent for acceptance and accepted, no change of circum"stances could have altered that fact." It seems, therefore, that this [188] point, as to the cancelling an acceptance, is not completely settled. There appears no reason why the drawee, before he has induced the holder to take or hold the bill on the credit of the acceptance, should not be at liberty to cancel his acceptance; the circumstance of the bill being thereby defaced cannot constitute any sufficient reason why he should be liable as acceptor, for the holder is not prejudiced by the erasure, but may immediately resort to all the antecedent parties on the bill, and which also ought not to be put in circulation after the drawee has determined not to pay it. If a bill has been accepted by mistake, it seems that the drawee is at liberty, before he has delivered it to a third person, to cancel his acceptance. At all events, if the holder cover upon the bill against prior indorsers. Upon a motion for a new trial; Lord Ellenborough, C. J. said, I should have felt considerable pressure in the argument used on the behalf of the defendants, if the fact had borne them out. Undoubt edly the indorsees, generally speaking, are bound to return the bill to the indorsers in the same plight as they received it, and unchanged by any act of theirs; but I cannot consider the act of Boldero as the act of the indorsees, for he had no authority either express or implied from them to do the act, and the whole originated in his mistake. The case then comes to the instances put in argument at the trial, of a blot having fallen upon, or a child having torn or destroyed the instrument. In such cases the law is not so strict as to require the precise formal proof which is ordinarily required, for that would be at once to deprive the party of his remedy. I remember Pothier, in his Treatise on Bills of Exchange, (2 vol. 114, partie 1 ch. 3. s. 3.) speaking of an acceptor who put his signature to a bill, but had not parted with it, says, b Trimmer v. Oddy and others, ante, Thornton v. Dick, 4 Esp. Rep. 270, d Bentinck v. Dorrien, 6 East, 199.-- 8 Bayl. 88, 9. h As to this point of circulating a bill after it has been dishonoured, see Roscow v. Hardy, 12 East, 434. 2 Campb. 458. S. C. Ante, 126. Trimmer r. Oddy, ante, 186, note. 4thly. Of of the bill, the acceptance of which has been cancelled, cause it to be the liabili- noted for non-acceptance, he will afterwards be precluded from insisting that the bill was accepted. *(1) ty of the acceptor. How this li- The liability of the acceptor cannot in general be released or disability may charged, otherwise than by payment or by express release or waiver.1 be dischar- If, however, by the laws of a foreign country, where the acceptance ged. was made, and where it was to be performed, the obligation is by any act vacated, it will no longer have any obligatory force in this country; [189]and by the consent of the holder, it may in all cases be waived or released, and the waiver may be either expressed or implied." With respect to the mode by which it may be waived or discharged, it may be observed, that the general rule of law is, that although a simple contract, previously to the breach of it, may be discharged by parol, yet, if it has once been broken, then it cannot be discharged without payment or a release in writing; but in the case of a bill, it is otherwise; k Bentinck v. Dorrien and another, 6 East, 199. 2 Smith's Rep. 377, S. C. This action, which was by the indorsee against the defendants as acceptors of a bill, was referred, and the arbitrator, after reciting in his award, that the plaintiff, on the 31st May, left the bill with the defendants for acceptance, and they signed an acceptanee thereon; but that on the 1st of June, before the bill was called for, they cancelled that acceptance, and that the plaintiff thereupon noted the bill for non-acceptance, declared himself to be of opinion that by such noting the plaintiff had precluded himself from insisting that the defendants had bound themselves to pay the bill, and therefore awarded in favour of the defendants. A rule nisi was obtained for setting aside this award, on the ground that the acceptance was irrevocable. But after cause shown, the court held, that whether such acceptance could or could not be revoked, the plaintiff had, at all events, by noting the bill for non-acceptance, precluded himself from contending that the acceptance was valid. Rule discharged. Sproat v. Matthews, 1. T. R. 182. Ante, 182. Poth. pl. 76. 118. Mar. 83. 545, 6. Bacon v. Searles, 1 Hen. Bla. 88. Fen. tum v. Pocock, 1 Marsh. 14. 5 Taunt. 192. S. C. Robertson v. French, 4 East, 130. Burrows v. Jemino, Stra. 732. Sel. Ca. 144. S. C. et ante, 93. Burrows v. Jemino, 2 Stra. 732. The plaintiff accepted a bill at Leghorn, and by the law there, if the drawer fails, and the acceptor hath not sufficient effects of the drawer in his hands at the time of the acceptance, the acceptance becomes void. And this being the plaintiff's case, he instituted a suit at Leghorn, and his acceptance was thereupon vacated by the sentence of that court. The plaintiff, on his return to England, was sued as acceptor, and now filed his bill for an injunction and relief. King, Lord Chancellor, held, that the plaintiff's acceptance of the bill having been vacated and declared void by a competent jurisdiction, that sentence was conclusive, and bound the court of Chancery here, and granted a perpetual injunction to enjoin the defendant from suing upon this bill. n Bayl, 90. • Fitch v. Sutton, 5 East, 230. Rozal v. Lampen, 2 Mod. 43. Edwards v. Weeks, id. 259. Langden v. Stokes, Cro. Car. 383. May v. King, Cases K. B. 538., Vin. Ab. tit. Release. Com. Dig. tit. Pleader, 2 G. 13. et tit. Action on the Case in Assumpsit, G. Heathcote v. Crookshanks, 2 T. R. 24. Kearslake v. Morgan, 5 T. R. 514. (1) It is now settled that when a defendant having once written his acceptance with the intention of accepting a bill afterwards changes his mind, and before it is communicated to the holder, or the bill delivered back to him, obliterates his acceptance, he is not bound as acceptor. Cox v. Troy, 5 Barn. & Ald. 474. A. having accepted two bills of exchange for nearly the same amount on the same day, sent his clerk to the person in whose hands they both were as agent of two different holders to take up one of them, but the clerk took up the other and brough: it to A. who struck out his name as acceptor. In about five minutes from the time he received it, he wrote his name again under the acceptance and sent it back to the agent who received it and gave up the other bill. Held, that the bill first taken up was paid and the indorsers discharged. Bogart v. Nevins, 6 Serg, & Rawle, ceptor; and and the courts have gone so far as to decide, that what amounts to an 4thly. Liaassent to discharge the acceptor, is a question for the jury, arising out bility of acof the circumstances of the case; from which it might be inferred, that how disan act indicating an intention to relinquish the right of action, will be charged. sufficient: but that decision appears in some measure to be contradicted [ 190 ] by the case of Dingwall v. Dunster, where the court decided, that nothing but an express consent, or the statute of Limitation, would discharge the acceptor; and that no indulgence to him or to the drawer would have that operation; and in a late case it was decided, that though the holder of a bill may discharge the liability of the acceptor by parol, yet for this purpose, the words must amount to an absolute renunciation of all claim upon him in respect of the bill; and an acceptor cannot avail himself of a renunciation on the part of a holder of his claim on him, unless it be not only express but founded on some con P Ellis v. Galindo, cited in Dingwall v. Dunster, Dougl. 247. James Galindo drew upon his brother for 301., in favour of the plaintiff. When the bill became due, James paid the plaintiff 37. 15s. 4d. and indorsed a promise to pay the remainder in three months. Three years elapsed, and then plaintiff sued the drawee upon his acceptance. Lord Mansfield thought the defendant discharged, and nonsuited the plaintiff. An application was made for a new trial, when Lord Mansfield said, he thought the case did not interfere with Dingwall and Dunster, but a rule to show cause was granted; after cause was shown, Lord Mansfield said, the doubt is, whether the question should not have been left to the jury, it being a question of intention arising out of the circumstances. Willes, J. I thought it should have been left to the jury; and per Buller, J. I rather think the case should have gone to the jury; but I am not therefore of opinion, that there ought to be a new trial, the indorsement could not have been meant as an additional security, for the drawer was equally liable before, I should have left the question to the jury, but with very strong observations, and as the demand is so small, I do not think there ought to be a new trial. Rule discharged. 9 Dingwall v. Dunster, Dougl. 247. et vide Anderson v. Cleveland, Esp. Rep. 46. Byrn v. Godfrey, 4 Ves. 8. Anderson t. Cleveland, 13 East, 430. Dingwall v. Dunster, Dougl. 235. 247. Dunster lent Wheate his acceptance, which became due the 13th December, 1774. It was then in the hands of Dingwall; but he finding that Wheate was the real debtor, wrote to his attorney in February and November 1775, for payment, received interest upon the bill from Wheate, and suffered several years to elapse, without calling on Dunster. On 13th February, 1775, Dunster wrote to thank Dingwall for not proceeding against him, and said, he had been informed by a person Dingwall had sent, that Wheate had taken up the bill; but Dingwall took no notice of this letter; he afterwards sued Dunster, for whom the jury found; but upon a rule to show cause why there should not be a new trial, the whole court held, that there was nothing in the plaintiff's conduct to discharge Dunster; that it meant nothing more than an indulgence to him, and that he would try to recover from the drawer if he could; but by Lord Mansfield, no use has been made of the defendant's letter; probably the fact did not warrant him in asserting that a person the plaintiff sent had told him Wheate had taken up the bill; had the plaintiff by any thing in his conduct confirmed him in such a belief, it might have altered the case. Bayl. 92. Anderson v. Cleveland, 13 East, 430. 1 Esp. Rep. 46. In an action by an indorsee against the acceptor of a bill, no demand was proved till three months after the bill was due, and when the drawer had become insolvent; but per Lord Mansfield, the acceptor of a bill or the maker of a note always remains liable. The acceptance is a proof of having assets in his hands, and he ought never to part with them unless he be sure that the bill is paid by the drawer. Bayl. 93. Whatley v. Tricker, 1 Camp. 32. The indorsees of a bill knowing that it had been accepted for the accommodation of the drawer, and possessing goods of the drawer's, from the produce of which they expected payment, said (at a meeting of the acceptor's creditors,) that " they looked to the drawer, and should not come upon the acceptors." In consequence of which the latter assigned their property for the benefit of their creditors, and paid them 158. in the pound. The drawer's goods however proved to be of little value, and he became insolvent, upon which the indorsees sued the acceptors. Lord Ellenborough said, that if the plaintiff's language amounted to an unconditional renunciation of all claim upon the acceptors, whereby the latter had entered into an arrangement with their creditors, the acceptors were discharged, if only to a conditional promise not to resort to the acceptors if satisfied, elsewhere they were not. The jury found for the plaintiff. Bayl. 90. Parker v. Leigh, 2 Stark. 229. ceptor; and how charged. 4thly. Lia- sideration. It has also been adjudged, that a release by the holder to bility of ac- the drawee, after the bill is drawn, and before acceptance, will not discharge him from the obligation raised by a subsequent acceptance, because he was not chargeable at the time of the release. And where the drawer of a bill of exchange, accepted by defendant, agreed with him and the rest of his creditors to take a composition of eight shillings in the pound, to be secured by promissory notes, to be given by defendant payable on days certain, and that defendant should assign to the creditors certain debts upon which they should execute a general release, and the assignment was executed, and all the creditors except the plaintiff received their composition and executed the release, and plaintiff might have received his promissory notes if he had applied for them; but it did not appear that defendant had ever tendered them to plaintiff, or that he had ever applied for them, and the plaintiff afterwards, and after the days of payment of the promissory notes had expired, sued the defendant on the bill of exchange, it was held, that he was not precluded by the agreement from recovering." But a general release by the drawer of a bill to the acceptor will, as between them, discharge the acceptor; though the drawer is not the holder, nor has then paid the bill. [191] What amounts to a waiver, and discharge of the acceptor's liability, must depend on the circumstances of each particular case. An agreement to consider an acceptance as at an end; or a message by the holder to the acceptor of an accommodation bill, that the business has been settled with the drawer, and that he need not give himself any further trouble ; have been holden to amount to a waiver of an acceptance. But it should seem, that the holder's receiving a part of the money due on a bill from the drawer, and taking a promise from him upon the back of it for the payment of the residue at an enlarged time, will not of itself amount to a discharge of the acceptor. It has been decided, that if the holder of a bill of exchange agree not to sue the acceptor, upon his making affidavit that the acceptance is a forgery, and such affidavit be accordingly made and sworn, he cannot afterwards bring an action on the bill, though the affidavit be false." When a bill is accepted in consideration of the future consignment of goods to the acceptor, and the prospect of the profit of the commission on the sale thereof, and the holder of the bill, aware of the nature of the acceptance, agrees to take, and receives the bill of lading, • Parker v. Leigh, 2 Stark. 228; and see Badnall v. Samuel, 3 Price 521. C Drage v. Netter, Ld. Raym. 65. Cranley v. Hillary, 2 M. & S. 120. * Scott v. Lifford, 1 Campb. 250. y Walpole v. Pulteney, cited Dougl. 236, 7. 248, 9. Walpole held a bill accepted by Pulteney, but agreed to consider his acceptance at an end, and wrote in his bill book, opposite to the entry of this bill," Mr. Pulteney's acceptance is at an end." Walpole kept the bill from 1772 to 1775, without calling upon Pulteney, and then brought this action. The jury found a verdict for the plaintiff; but the court of exchequer thought the ver diet wrong, and granted a new trial, upon which the jury found for the defendant. Bayl. 90, 2 Black v. Peele, cited, Dougl. 236, 7. 248, 9. Black arrested Peele as acceptor of a bill drawn by Dallas, but on finding that the acceptance was an accommodation one, his attorney took a security from Dallas, and sent word to Peele, that he had settled with Dallas, and that he need not give himself any further trouble. Dallas afterwards became bankrupt, upon which Black again sued Peele; but it was held, that as Black had, in express words, discharged Peele, the action could not be maintained. Bayl. 90 a Ellis v. Galindo, ante, 189, note. Stephens v. Thacker, Peake, 117.Lloyd v. Willan, 1 Esp. Rep. 178. ceptor; and dis &c. from the acceptor, which were the consideration of the acceptance, 4thly Liathe acceptor is by this act of the holder discharged from the liability bility of acimposed on him by his acceptance. He is also discharged when, as how has been before observed, the holder, upon an offer by the drawee of a charged. conditional or partial acceptance, gives a general notice of non-accept-[192] ance to any of the antecedent parties, omitting to mention in such notice the nature of the acceptance offered." But the drawee will not be discharged from liability in the case of an acceptance payable at a banker's, by the holder's neglect to prevent it there although he can prove that he has sustained damages in consequence of such neglect, and though it is reported to have been decided at Nisi Prius, that an accommodation acceptor will be discharged by the holder's giving time to the drawer after having notice that the bill was accepted for his accommodation yet it has been since decided, that the holder's giving such time or taking a cognovit from the drawer, though he have notice that the bill was accepted for the accommodation of such drawer, will not discharge the acceptor. If, however, an acceptor, in satisfaction of his liability, indorse another bill, and Mason v. Hunt, Dougl. 294, 297.— Rowland Hunt agreed that his partner, Thomas Hunt should, on consignment of a cargo, and an order for its insurance, accept bills for 3,6001. The cargo was consigned, the order for insurance given, and Thomas Hunt effected the insurance, but he refused to accept the bills. After some negotiation, the plaintiff, being the holder, signed a memorandum, by which after stating that the consignment had been made on account of the bills, and that the Hunts being apprehensive that the neat proceeds might not be sufficient to discharge them, had refused to accept, he accepted the bill of lading and policy, and undertook to apply the neat proceeds, when in cash, as far as they would go, to the credit of the payee, in part payment of the bills. The plaintiff afterwards sued the Hunts, and insisted that Rowland Hunt's agreement was an accept ance; but after a verdict for the defendant, and time taken to consider, upon a rule to show cause why there should not be a new trial, the whole court was clear, that by the memorandum the plaintiff had waived all right to insist upon Rowland Hunt's agreement, for it was obvious, that the whole consideration of the acceptance was the consignment, upon which there would be a commission, and the policy of these the plaintiff had taken to himself., Sproat v. Matthews, 1 T. R. 182.Bentinck v. Dorrein, 6 East, 199. Ante, 187, 188. Sebag v. Abitbol, 4 M. & S. 462; and see post, as to presentment. But since the case of Rowe v Young, 2 Brod. & Bing. 165, though qualified by stat 2 Geo. 4. c. 78. if a bill be accepted, payable only at a named place, the want of a due presentment there might be considered as discharging the acceptor. CHITTY ON BILLS. f Paxton v. Peat, 2 Campb. 185. Fentum v. Pocock, 1 Marsh. 14.-5 Taunt. 192. S. C. This was an action against the acceptor of a bill of exchange, and at the trial the plaintiff had a verdict with liberty for the defendant to move to enter a nonsuit, on the ground, that he was discharged by the plaintiff having taken a cognovit from the drawer; and upon motion accordingly, and cause shown, 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 accommodation. In Carstairs v. Rolleston, 5 Taunt. 551. 1 Marsh. 207. S. C. it was discussed, but not determined, whether a release to the indorser of an accommodation note, discharged the maker, if the holder was aware at the time of all the circumstances. A a |