Nat. Bank of Canton v. Dubuque Southwestern Railway, 52 Iowa, 378.)

There is no extrinsic fact in the present case which gives the document a different effect from that which results from its tenor, if it be possible that its effect should be varied by parol. (See Whitney v. Eliot Nat. Bank, supra; Griffin v. Weatherby, L. R. 3 Q. B. 753, 759; First Nat. Bank of Canton v. Dubuque Southwestern Railway, 52 Iowa, 378.) The defendant had done work for the town, and his only right to draw was in respect of the price of his work. If we assume this fact to have been known to all parties concerned, still it only shows that the town was known to have means of indemnifying itself if it saw fit to pay. It does not enlarge the meaning of the draft beyond that which it bears on its face, of a general request to the town to pay. Even a reference to a fund out of which a drawee may indemnify himself will not take away the negotiable character of the draft. may remark that the concluding words of the draft in question are charge to account of." In some of the others, they are "charge to the account of," which is slightly more specific. But we do not see any sound distinction in favor of the latter. If the town had accepted the order, having power to do so, it would have become liable. on a direct and absolute contract to the claimant, very likely having a right to withhold an equal amount of its debt to the defendant. But mere retention of the draft was not acceptance. (Overman v. Hoboken City Bank, 2 Vroom, 563.)

Trustee charged. Judgment for plaintiff.1

We

THE bill on which suit was brought was in these words, with the indorsement of " Henderson, Terry & Co.," across the face of the

1 As to whether a bill is an assignment there has been a conflict of authority, especially where the bill is drawn for the whole of the fund. See 1 Daniel on Neg. Inst., §§ 15-23; 2 Am. & Eng. Encyc. L. (2nd ed.), pp. 10621064. That a bill drawn for the whole of a fund is not an assignment, see Shand v. Du Buisson, 18 Eq. Cas. 283; First N. B. v. Dubuque S. R. R., 52 Iowa, 378; Bush v. Foote, 58 Miss. 5; Bank v. Bogy, 44 Mo. 15. order for a payment of a particular, specified debt in full, is an assignment. Lewis v. Bank, 30 Minn. 135; Brady v. Chadbourne, 68 Minn. 117; Moore v. Davis, 57 Mich. 255. H.

But an

$307.78.

NEW ORLEANS, 2d May, 1861.

On the 12th day of December, after date, pay to the order of C. Yale, Jr. & Co., $307.78, value received, and charge the same to account of

To Messrs. HENDERSON, TERRY & Co.

MATT. WArd.

To it was attached the usual formal protest, dated "United States of America, State of Louisiana," by a "notary of the parish of New Orleans, State of Louisiana," 14th December, 1861.

* *

WILLIE, J. * There being no allegation to the contrary, we must treat the draft upon which this suit is founded as a domestic bill of exchange. Neither the place where the draft was drawn, nor where it was accepted, is stated in the petition. The instrument itself, made part of the petition, purports to have been drawn at New Orleans; but there is no averment that this place is beyond the limits of Texas. This court has held, that it will not take judicial notice of the division of other states into towns, cities, etc., and that knowledge of the fact that any place is within a different state of the Union must be derived from the allegations of the parties or the evidence contained in the record. (Andrews v. Hoxie, 5 Tex. 185; 4 Tex. 420.)

The rights of the parties to this contract, therefore, must be ascertained, and their liabilities fixed according to the law of our own state.2 * * *

§ 214

3. BILL TREATED AS PROMISSORY NOTE.

FUNK v. BABBITT.

[Reported herein at p. 150.] 1

2 Accord: Kearney v. King, 2 B. & Ald. 301; Riggin v. Collier, 6 Mo. 568. A bill drawn and dated in Philadelphia, payable in London, but actually delivered by the drawers in London, is to be treated as a foreign bill in the hands of a bona fide holder. Lennig v. Ralston, 23 Pa. St. 137. A bill drawn and delivered in Wisconsin, but dated and payable in Illinois, is an inland bill, as between the parties. Strawbridge v. Robinson, 10 Ill. (5 Gilman) 470. — H.

-

1" Where a party frames his instrument in such a way that it is ambiguous whether it be a bill of exchange or a promissory note, the party holding it is entitled to treat it either as one or the other, and the plaintiff ought not to be defeated by the party who framed the instrument being allowed to say that it is a bill of exchange" [where such party has had no notice of dishonor]. Edis v. Bury, 6 B. & C. 433. See also Lloyd v. Oliver, 18 Q. B. 471; Heise v. Bumpass, 40 Ark. 545; 4 Am. & Eng. Encyc. Law (2d ed.), pp. 119–123. — H.

ARTICLE XI.

ACCEPTANCE OF BILLS OF EXCHANGE.

I. Form and effect.

1. ACCEPTANCE MUST BE IN WRITING AND SIGNED BY DRAWEE,

§ 220

66

(a) Writing and signature.

SPEAR v. PRATT.

2 HILL (N. Y.) 582.1842.

ACTION against Pratt as acceptor. Judgment for plaintiff. The defendant's name was written across the face of the bill; and the question was whether this was such an acceptance as is required by statute. By the Court, COWEN, J. Any words written by the drawee on a bill, not putting a direct negative upon its request, as "accepted," presented," "seen," the day of the month, or a direction to a third person to pay it, is prima facie a complete acceptance, by the law merchant. (Bayley on Bills, 163, Am. ed. of 1836, and the cases there cited.) Writing his name across the bill, as in this case, is a still clearer indication of intent, and a very common mode of acceptance. This is treated by the law merchant as a written acceptance a signing by the drawee. "It may be," says Chitty, "It may be," says Chitty, "merely by writing the name at the bottom or across the bill;" and he mentions this as among the more usual modes of acceptance. (Chitty on Bills, 320, Am. ed. of 1839.)

-

It is supposed that the rule has been altered by 1 R. S. 757 (2d ed.) 6. This requires the acceptance to be in writing, and signed by the acceptor or his agent. The acceptance in question was, as we have seen, declared by the law merchant to be both a writing and a signing. The statute contains no declaration that it should be considered less. An indorsement must be in writing and signed; yet the name alone is constantly holden to satisfy the requisition. No particular form of expression is necessary in any contract. The customary import of a word, by reason of its appearing in a particular place, and standing in a certain relation, is considered a written expression of intent quite as full and effectual as if pains had been taken to throw it into the most labored periphrase. It is said the revisers, in their note, refer to the French law as the basis of the legislation which they recommend; and that the French law requires more than the drawee's name the word accepted, at least. That may be so; but it is enough for us to see that both the terms and the spirit of the act may be satisfied short of that

word, and more in accordance with the settled forms of commercial instruments in analogous cases. The whole purpose was probably to obviate the inconveniences of the old law, which gave effect to a parol acceptance.

ACTION against James W. Walton as acceptor of a bill addressed to James J. Walton. Defendant offered to prove that he signed as indorser, but the court excluded the evidence. Judgment for plaintiff.

SAFFOLD, J. The only evidence that the defendant accepted the bill, is his signature across its face. It is where the acceptor's signature is usually found, and in the absence of proper rebutting testimony this would be sufficient proof of the fact, if it was directed to him, or without direction to anyone. But the name of James J. Walton is also found in the position on the bill usually occupied by the drawee, and he must be considered the drawee as well as the drawer.

Where a bill is directed to a particular person, no one but the person to whom it is directed can accept it, except for honor. (May v. Kelly & Frazier, 27 Ala. 497.) If the defendant was an acceptor, he was one supra protest, and his obligation was, that if the bill was not paid. by the drawee upon due presentment at its maturity, then upon protest for nonpayment, and due notice thereof to him, he would pay it. (Story on Bills of Ex., § 123; 3 Wend. 491.)

There was no proof, in this case, of protest and notice, and for this reason the charge of the court was erroneous.

The plaintiff was the payee. It was, therefore, clearly competent to show by parol the intention of the parties, at the time the contract was

1 By the English and American decisions parol acceptance of an existing bill is sufficient. 1 Daniel on Neg. Inst,. § 504 et seq.; Scudder v. Bank, 91 U. S. 406, 413. In England, since 19 and 20 Vict., c. 97, the acceptance must be written on the bill. Bills of Exchange Act, § 17, subsec. (2). In the U. S. where there are statutory provisions they generally provide for an acceptance in writing; but this need not be upon the bill. An acceptance by telegraph has been held good. North Atchison Bank v. Garretson, 51 Fed. Rep. 168, note p. 35, ante. See also Spaulding v. Andrews, 48 Pa. St. 411. But, by § 221, of the Neg. Inst. L., the holder is entitled to require the acceptance to be written upon the bill; and by § 222 an extrinsic acceptance is binding only in favor of one to whom it is shown and who takes the bill on the faith thereof. This latter provision is a departure from the judicial decisions upor this point. Spaulding v. Andrews, 48 Pa. St. 411; Jones v. Council Bluffs Bank, 34 Ill. 313. — H.

entered into, with regard to their several liabilities among themselves, and the relation which they were to bear to the bill. (Branch Bank at Mobile v. Coleman, 20 Ala. 140.)

The evidence of the defendant, who was a competent witness under section 2704 of the Revised Code, ought to have been admitted.

The judgment is reversed and the cause remanded.2

§ 220

JACKSON v. HUDSON.

[Reported herein at p. .]

(c) Delivery Necessary.

DUNAVAN V. FLYNN, 118 Mass. 537. 1875. GRAY, C. J. — It was rightly held that the mere writing of the acceptance upon the bill, not communicated to the drawer or holder, and the detention of the bill in the defendant's custody, did not bind him, or operate as a payment of his debt to the drawer. (Clavey v. Dolbin, Cas. temp. Hardw. 278; Jeune v. Ward, 2 Stark. 326; s. c., 1 B. & Ald. 653; Mason v. Barff, 2 B. & Ald. 26; Cox v. Troy, 5 B. & Ald. 474, s. c., 1 Dowl. & Ryl. 38; Overman v. Hoboken City Bank, 1 Vroom, 61, and 2 Vroom, 563.)3

2 Accord: Davis v. Clarke, 6 Q. B. R. 16; Smith v. Lockridge, 8 Bush (Ky.) 423. In Markham v. Hazen, 48 Ga. 570, the stranger-acceptor was held as guarantor.

If a bill is directed to an agent (A.) and accepted by him in the name of his principal (X. Co., by A.), no one is bound; not the agent, for he has not accepted; not the principal, for it is not the drawee. Walker v. Bank, 9 N. Y. 582.

If a bill is directed to a partnership (A. B. & Co.) and is accepted by one partner in his own name, it has been held that no one is bound; not the partnership, for it has not accepted; not the partner, for he is not the drawee. Heenan v. Nash, 8 Minn. 407. Contra: Owen v. Van Uster, 20 L. J. C. P. 61. See note p. 306, ante. This is to be distinguished from the case of a bill directed to two or more drawees and accepted by one. See § 212, § 229, subsec. 5.-H.

3 Acceptance without re-delivery is ineffective. Freund v. Importers' Bank. 3 Hun (N. Y.) 689. Except as provided in § 225, post. But see 2 Ames' Cases on Bills and Notes, p. 790. An acceptance once completed by delivery is, in the absence of fraud on the part of the holder in procuring the acceptance, irrevocable. Trent Tile Co. v. Fort Dearborn N. B., 54 N. J. L. 33, 599; Fort Dearborn N. B. v. Carter, 152 Mass. 34.-H.