the bill. Laxton v. Peat, 2 Campb. 185; Collett v. Haigh, 3 Campb. 281; Adams v. Gregg, 2 Stark. 531. But quod simile non est idem; and the doctrine has since been overruled. It is now settled that the giving of time to the principal debtor will not discharge the acceptor. Fentum v. Pocock, 5 Taunt. 192; Price v. Edmonds, 10 Barn. & C. 584; Nichols v. Norris, 3 Barn. & Ad. 41; Harrison v. Courtauld, 3 Barn. & Ad. 36; Cronise v. Kellogg, 20 Ill. 11; Lambert v. Sanford, 2 Blackf. 137; Hansborough v. Gray, 3 Gratt. 356; Bank of Montgomery v. Walker, 9 Serg. & R. 229; s. c. 12 Serg. & R. 382; and other cases cited in Farmers' Bank v. Rathbone, ante, p. 635. See also ante, p. 607.

The cases have not always clearly defined what an accommodation bill or note is. The court in Farmers' Bank v. Rathbone inclined to the opinion that the bill in question in that case was not an accommodation bill; and in this we think the court were right. A bill or note does not become accommodation paper by the failure of the consideration moving to the acceptor or maker, or even by the non-existence ab initio of a consideration, if that be all. The signature must have been given for accommodation.

This is the view of Mr. Justice Byles. "An accommodation bill," he says, is a bill to which the accommodating party, be he acceptor, drawer, or indorser, has put his name, without consideration, for the purpose of benefiting or accommodating some other party who desires to raise money on it, and is to provide for the bill when due." Bills, 128, 11th Lond. ed.

In another part of his work, the author further says that in common language a bill accepted or indorsed without any consideration moving to the party making himself liable on the

bill is, indeed, called an accommodation bill; but in strictness an accommodation bill is not merely a bill accepted or indorsed without value received by the acceptor or indorser, but a bill accepted or indorsed without value by the acceptor or indorser to accommodate the drawer or some other party; i.e., that the party accommodated may raise money upon it or otherwise make use of it. Bills, 405.

And he adds that this distinction is of importance; for a party accepting a bill merely without consideration (as if, for example, he does not know the state of accounts between himself and the drawer) and afterwards sued on that bill cannot charge the drawer with the costs of defending the action. Bagnall v. Andrews, 7 Bing. 217; s. c. 4 Moore & P. 839. See Tindal v. Bell, 11 Mees. & W. 228; Ronneberg v. Falkland Islands Co., 17 C. B. N. s. 1. Whereas the acceptor of an accommodation bill, properly so called, who is compelled by action to pay it, may have a claim upon the drawer for all the expenses of the action. Ex parte Marshall, 1 Atk. 262; Jones v. Brooke, 4 Taunt. 464; Stratten v. Matthews, 18 L. J. Ex. 5; s. c. 3 Ex. 48; Garrard v. Cottrell, 10 Q. B. 679. An accommodation acceptor, however, cannot charge the party, it is said, with the costs of an action to which the accommodation acceptor had evidently no defence. Byles, ut supra; Roach v. Thompson, Moody & M. 487; Beech v. Jones, 5 Com. B. 696.

To this should be added the distinctions above stated between the position of an acceptor for value and an accommodation acceptor; to wit, the effect of payment by the drawer.

§ 6. Payment in Worthless Paper.The conflict of authority between the courts of Pennsylvania and New York upon the question whether one who

has taken for value the paper of an insolvent bank, both parties supposing it to have been solvent, and the vendor having also paid value for the paper, can recover back the consideration paid, has extended itself to other States. The Pennsylvania rule prevails in Alabama, Lowrey v. Murrell, 2 Porter, 280; in Delaware, Corbit v. Bank of Smyrna, 2 Harr. 235; in Tennessee, Ware v. Street, 2 Head, 609; and in Virginia, Edmunds v. Digges, 1 Gratt. 359.

The New York rule prevails in New Hampshire, Fogg v. Sawyer, 9 N. H. 365; in Vermont, Wainwright v. Webster, 11 Vt. 576; Gilman v. Peck, 11 Vt. 516; in Maine, Frontier Bank v. Morse, 22 Maine, 88; in South Carolina, Harley v. Thornton, 2 Hill, 509; in Wisconsin, Townsends v. Bank of Racine, 7 Wis. 185; in Ohio, Westfall v. Braley, 10 Ohio St. 188; in Illinois, Magee v. Carmack, 13 Ill. 289; and in England, Timmins v. Gibbins, 18 Q. B. 722. See further, Thomas v. Todd, 6 Hill, 340; Houghton v. Adams, 18 Barb. 545; Baker v. Bonesteel, 2 Hilt. 397; Commonwealth v. Stone, 4 Met. 43; Snow v. Perry, 9 Pick. 539; Alexander v. Dennis, 9 Port. (Ala) 174; Alexander v. Byers, 19 Ind. 301; Dakin v. Anderson, 18 Ind. 52; Aldrich v. Jackson, 5 R. I. 218.

Mr. Justice Story is of the opinion that the question after all is mainly one of fact as to the intention of the parties; and it must, he thinks, turn upon this inquiry, whether, taking all the circumstances together, the paper was taken as absolute payment by the purchaser, at his own risk, or only as conditional payment, with the requirement merely of due diligence to obtain payment. Promissory Notes, § 389.

But it may be questioned if this reaches the difficulty. The real question in cases like Bayard v. Shunk is,

What is the presumption of law in the absence of evidence upon the question of present solvency when the paper is given for cash as a payment of property? If the paper itself is to be treated as a commodity, as property, and not as merely the representative thereof, then the Pennsylvania court appear to be right in applying the doctrine of caveat emptor to the transaction. If on the other hand it is only the symbol of property, if the purchaser acquires only a promise to pay money, it may well be doubted whether the maxim of sales should apply. The rule of caveat emptor, though well established (within limits) in the case of sales of goods, does not sufficiently commend itself to favor to justify an extension of it to cases not strictly falling within its admitted application. Nor should the fact of hardship to the vendor be permitted to enter into the consideration of a case in which the purchaser is in no way responsible for that which brings upon him that result. If the vendor loses his money, he loses it because of a fact anterior to the purchase by the plaintiff, -a fact which existed while the paper was in the vendor's hands. The vendor had already lost: the paper was good for nothing to him. Nor does the fact that he supposed it to be good justify him in keeping the money or property received, which could only have been given for it by the purchaser upon the same supposition that it was good. There has been a failure of consideration. See Timmins v. Gibbins, 18 Q. B. 722, 725, Lord Campbell.

This suggestion, however, will give way before any evidence tending to show that the purchaser in fact undertook to purchase at his own risk. And it will have no bearing upon the situation of parties solvent when the paper was purchased, who become in

solvent before its maturity. In cases of this kind, when the paper has been actually bought, or taken in actual payment of property then sold, and not as security for a debt, the risk of the ultimate productiveness of the paper is of course assumed, in the absence of evidence of agreement to the contrary, by

the purchaser. That is not an arbitrary implication of law, but is only a declaration of the common understanding and intention of men in such transactions. Caveat emptor has nothing to do with making the rule as to transactions of that kind.