with the previous payee or indorsee, and therefore wrote his own name upon the paper, because the question always is, Had the indorser the legal power and right to transfer the paper by his indorsement? for if not, the holder derives no title from his indorsement.

It may be well to remark, that although negotiable paper payable to order is not transferable by delivery only, but becomes so transferable by an indorsement payable to bearer, or by an indorsement in blank, yet a bona fide holder of such paper by delivery only is protected against everything subsequent to the delivery of the paper, if it is afterwards indorsed to him, the indorsement relating back to the time of delivery, as to any equity outside of the note itself. (k)

But if the paper is originally made negotiable by delivery, or becomes so by indorsement in blank, then it is in the power of any party, however wrongful his possession, to do all that is necessary to transfer the property; for delivery is of itself sufficient. Hence the holder takes now only the risk of his own honesty; for although his transferrer had himself only possession, and would have made no title whatever as against any prior party, the paper is nevertheless so far like money in his hands, that his innocent transferee for value acquires full property in it, and all the rights incidental to this property.(1)

If A holds paper indorsed to him, and B steals or finds it and forges A's indorsement to himself, and then indorses it for value to C, C to D, D to E, &c., each of these parties has a valid claim on B, and on all prior parties as far back as B; but no one of them has any claim against A, the original owner, or any party before B. The true owner has never lost his property in the paper, but may still enforce his rights under it, in the manner prescribed for a lost note, against all who were parties when he lost it.(m)

It should be added, that if paper properly assignable only by indorsement be delivered without indorsement, the transferee has but an equitable title. He may have, however, a right to a legal title, and therefore to an indorsement, if this be necessary

(k) Ranger v. Cary, 1 Met. 369

an equity outside of the note itself.

The court appear to limit the rule to the case of

(1) Caruth v. Thompson, 16 B. Mon. 572. (m) Sec supra.

to make his title legal; and a court of equity would compel such indorsement. And we should say that the indorsee would then have the same rights and the same protection as if the indorsement had been made at the time of the assignment; because it would relate back to that time, as it is given now only because it ought to have been given then. The absence of indorsement is a merely technical objection; for the actual transfer for value. passes the property in the paper substantially, and the indorsement is needed only to make that transfer formal.(n)

It will follow from what has been already said, that if a bona fide holder has acquired a perfect legal title, and the instrument is not made void by statute, and the parties to it are under no personal disability, he holds the paper subject to very few, and we might almost say to no defences whatever. Thus, it is no sufficient defence against him, that there was no original consideration; (0) or that the consideration has failed; (p) or that the consideration was illegal, as where the note was given for liquors sold contrary to law; (g) or on an agreement not to further prosecute the maker on a complaint for adultery with the wife of the payee; (r) or for procuring the legislature to pardon a convict; (s) or that the note was given as an escrow; (t) or that the indorsement grew out of an illegal transaction, or was obtained by fraud; (u) or that the note was obtained by fraud or

(n) See supra, note k.

(0) See p. 186, note f; Martin v. Hamilton, 5 Harring. Del. 314.

(p) See p. 188, note g.

(q) Most of the statutes against selling liquors provide that the note shall be void between the original parties, but valid in the hands of a bona fide holder without notice. The Massachusetts act provides that such notes "shall be void against all persons holding the same with notice of such illegal consideration, either direct or implied by law." Under this statute it has been held that, if the defendant shows that a note was given for liquor, the plaintiff must prove that he took it without notice. Holden v. Cosgrove, Suffolk, Nov. 1858; Sistermans v. Field, Bristol, Oct. 1858; Barnard v. Flint, Berkshire, 1860. And see Paton v. Coit, 5 Mich. 505; Wyat v. Campbell, Moody & M. 80. See also, generally, Doe v. Burnham, 11 Foster, 426; Johnson v. Meeker, 1 Wis. 436; Norris v. Langley, 19 N. H. 423.

(r) Clark v. Ricker, 14 N. H. 44.

(s) Meadow v. Bird, 22 Ga. 246.

(t) Vallett v. Parker, 6 Wend. 615.

(u) Humphrey v. Clark, 27 Conn. 381. So, if a party makes or indorses a note, for the purpose of its being used in a particular way, he takes the risk of its being used in a different way, and cannot refuse to pay it to any bona fide holder into whose hands it may come. Sweetser v. Frencn, 2 Cush. 309, 313.

stolen; (v) or that it has been already paid to the original payee, or to some just holder; (w) or that the instrument was delivered to the payee in blank, with authority to insert a certain sum, and that he has inserted a much larger sum.(x) In all of these cases, the courts will afford no remedy to the payee, or to any subsequent party chargeable with notice or knowledge of the defence; but the paper is not absolutely void, and the bona fide holder is protected against all these defences.

(v) Gould v. Segee, 5 Duer, 260; Powers v. Ball, 27 Vt. 662; Humphrey v. Clark, 27 Conn. 381; Kelly v. Smith, 1 Met. Ky. 313; Peacock v. Rhodes, 2 Doug. 633. (w) See supra, p. 230, note w; Griswold v. Davis, 31 Vt. 390.

(x) See Putnam v. Sullivan, 4 Mass. 45; Griggs v. Howe, 31 Barb. 100, affirmed, Van Duzer v Howe, 21 N. Y. 531; and supra, p. 115.

CHAPTER IX.

ACCEPTANCE.

ACCEPTANCE may be defined to be an agreement to comply with the request contained in a bill of exchange.(y) It may be express or implied; verbal or written; prior to drawing the bill; before or after maturity; absolute, qualified, or conditional; by all the drawees, by a part of them, or by one who is not a drawee, if he accepts for the honor of the drawer or any indorser. The acceptance is complete when in exact conformity with the tenor of the bill; qualified, when it is an agreement to pay the bill, but at a different time, place, or in a different manner from the tenor thereof; conditional, when the obligation of payment is to commence on the happening of some event or circumstance. We will first consider what constitutes acceptance.

SECTION I.

WHAT CONSTITUTES ACCEPTANCE.

THE usual manner of accepting is for the drawee to write across the face of the bill, frequently in red ink, the word “Ac

(y) "An acceptance is an engagement to pay a bill according to the tenor of the acceptance." Bayley, c. 6, § 1; Kyd, c. 6; Edwards, p. 405. "The act by which the drawee evinces his consent to comply with, and be bound by, the request contained in the bill of exchange directed to him, or, in other words, it is an agreement to pay the bill when due." Chitty, p. 280. "An assent and agreement to comply with the request and order contained in the bill, or, in other words, it is an assent and agreement to pay the bill, according to the tenor of the acceptance, when due." Story, § 238. "An engagement to pay the bill when due." Lawrence, J., Clarke v. Cock, 4 East, 57, 72. "An engagement of the one party acceding to the proposition of the other." Bayley, J., Jeune v. Ward, 1 B. & Ald. 653, 659. "An engagement by the drawee to pay the bill when due in money." Byles, p. 142. The objections to this last definiion are, that an acceptance may be by a person other than the drawee, as in the case of an acceptor for honor; that the words "when due" are hardly correct, as an accept. ance after maturity is valid; and that "in money" is surplusage, because, a bill of exchange being a written order for the payment of money, an engagement to pay the bill must be to pay in money, for a bill not payable in money is not a bill of exchange.

cepted," and sign his name to this. It is certainly sufficient if stamped or printed on the bill,(z) and probably sufficient if written in pencil. (a) The date is immaterial, unless the bill is payable so many days after sight, or after acceptance; in that case it usually is, and always should be, added; but if not added, the actual date may be shown by evidence; and will then have the same effect as if it were written. (b) No special form or manner or words of acceptance are necessary; (c) nor is the signature of the drawee essential, although usual and proper. (d) The rule seems to be, as drawn from the authorities and the reason of the case, that if a bill is presented to a drawee for the purpose of obtaining his acceptance, and he does anything to or with it which does not distinctly indicate that he will not accept it, he is held as an acceptor; for he has the power, and it is his duty, to put this question beyond all possibility of doubt.(e) Thus "Accepted," without a signature,(f) or even "Presented," (g) or "Honored," (h) or "I will pay the bill," (i) or

In Petit v. Benson, Comb. 452, it is assumed that an acceptance payable half in money and half in bills is valid as to the part payable in money, and not as to the part payable in bills. An acceptance must be to pay in money; an acceptance to pay by another bill is no acceptance. Russell v. Phillips, 14 Q. B. 891. An acceptance is not a collateral promise to pay the debt of another within the statute of frauds. Raborg v. Peyton, 2 Wheat. 385; Fisher v. Beckwith, 19 Vt. 31. See Storer v. Logan, 9 Mass. 55, 60.

(z) See Schneider v. Norris, 2 Maule & S. 286.

(a) Supra, p. 21, note y.

(b) Kenner v. Creditors, 20 Mart. La. 36, 1 La. 120. See Glossop v. Jacob, 4 Camp. 227.

(c) Spear v. Pratt, 2 Hill, 582, where the signature of the drawee across the face of the bill was held a valid acceptance, even under the statute requiring acceptances to be in writing and signed.

(d) Phillips v. Frost, 29 Maine, 77; Dufaur v. Oxenden, 1 Moody & R. 90. In this case it was left to the jury to decide whether the acceptance was complete, and they decided that it was.

(e) See Cowen, J., Spear v. Pratt, 2 Hill, 582; Harvey v. Martin, 1 Camp. 425, note; Jeune v. Ward, 2 Stark. 326.

(f) See supra, note d.

(g) Holt, C. J., Anonymous, Comb. 401.

(h) Story on Bills, § 243.

(i) Ward v. Allen, 2 Met. 53; Lord Ellenborough, C. J., Wynne v. Raikes, 5 East, 514; Leach v. Buchanan, 4 Esp. 226. In Edson v. Fuller, 2 Foster, 183, a parol promise "to settle" a note was held a valid acceptance of an order indorsed upon it for the amount due. So where the cashier of a bank pronounced a check drawn upon it "good." Barnet v. Smith, 10 Foster, 256. Where the drawee wrote on the back of a bill, "I will see the within paid eventually," and signed it, it was held a valid accept