paper, by reason of any thing not appearing on the face of the paper itself.

In this case, the bill of exchange, when negotiated to the plaintiffs, was not accompanied by the bill of lading of the goods consigned to the defendants. The memorandum at the foot of the bill of exchange, that it was drawn against twelve bales of cotton, can have no more effect to charge the defendants as acceptors than the mere signature of the drawer, which of itself always implies a promise by him that he has funds in the hands of the drawee. The letter of March 15, having been written after the plaintiffs took the bill of exchange now sued on, and not addressed to them, did not make the defendants liable to them as acceptors of the bill. The ruling of the Superior Court was therefore erroneous, and, as it appears to have been based exclusively upon the assumption that the defendants were liable as acceptors, its finding must be set aside.

Upon the question whether the defendants, by reason of the subsequent receipt of the bill of lading and of the cotton therein mentioned, or of any other facts which were or might be proved, can be held liable in any other form, and, if so, for what amount, no ruling appears to have been made by the court below, and no opinion is expressed by this court. Exceptions sustained.1

1 Lugrue v. Woodruff, 29 Ga. 648; Worcester Bank v. Wells, 8 Met. 107 (statu tory); Ontario Bank v. Worthington, 12 Wend. 593 (statutory); Howland v. Carson, 15 Pa. 453; Strohecker v. Cohen, 1 Speers, 849, accord. — ED.

SECTION III.

No One but the Drawee can accept a Bill, except for Honor.

JACKSON v. HUDSON.

AT NISI PRIUS, CORAM LORD ELLENBOROUGH, C. J., JUNE 7, 1810.

[Reported in 2 Campbell, 447.]

THIS was an action against the defendant as acceptor of a bill of exchange, which was drawn and accepted in the following form:

"LONDON, Dec. 30, 1809.

"Two months after date, pay to my order £157, for value received,

"To MR. I. IRVING.

"Accepted. I. IRVING.

"Accepted. JOSEPH HUDSON.

"Payable at Mr. Hudson's, 132 Oxford Street."

F. JACKSON.

The first count of the declaration stated that the bill was directed to Irving; the second took no notice of there being any drawee; and both averred that the defendant accepted it," according to the usage and custom of merchants."

Garrow, for the plaintiff, stated, and undertook to prove, that the plaintiff, having dealings with Irving concerning the sale of goods, refused to sell him any more, unless the defendant would become his surety; that the defendant agreed to this; that goods to the value of £157 were, in consequence, sold by the plaintiff to Irving; that the bill in question was drawn for the price of them; and that the defendant, with a knowledge of all these facts, had put his name upon the bill as acceptor. He must therefore be considered as having accepted the bill jointly with Irving; and, as he had not pleaded in abatement, he was separately liable in the present action.

LORD ELLENBOROUGH. If you had declared that, in consideration of the plaintiff selling the goods to Irving, the defendant undertook that the bill should be paid, you might have fixed him by this evidence. But I know of no custom or usage of merchants, according to which, if a bill be drawn upon one man, it may be accepted by ! two. The acceptance of the defendant is contrary to the usage and custom of merchants. A bill must be accepted by the drawee, or, failing him, by some one for the honor of the drawer. There cannot

be a series of acceptors. The defendant's undertaking is clearly col lateral, and ought to have been declared upon as such.

Plaintiff nonsuited.1

DAVIS v. HENRY JOHN CLARKE.

IN THE QUEEN'S BENCH, MAY 24, 1844.

[Reported in 6 Queen's Bench Reports, 16.]

ASSUMPSIT. The first count stated that "one John Hart,” on 8th March, 1838, "made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to him or his order £100," value received, at twelve months after date, which had elapsed before the commencement, &c.; "and the defendant then accepted the said bill, and the said John Hart then indorsed the same to the plaintiff;" averment of notice to defendant, promise by him to pay plaintiff, and that he did not pay.

There was also a count on an account stated.

The first plea denied the acceptance; the second, the promise; the third alleged a discharge of defendant by the Insolvent Debtors' Court.

The replication joined issue on the first two pleas, and traversed the discharge alleged in the third; on which traverse issue was joined. On the trial before Parke, B., at the Essex summer assizes, 1843, a written paper, in the following terms, was given in evidence on behalf of the plaintiff :

"£100.

LONDON, 8th March, 1838.

"Twelve months after date, pay to me or my order one hundred pounds, value received.

"TO MR. JOHN HART.

JOHN HART."

Across the face of this instrument was written

"Accepted.
"H. J. CLARKE.

"Payable at 319 Strand."

This was proved to be in the defendant's handwriting.

1 Polhill v. Walter, 3 B. & Ad. 114; Bult v. Morrell, 12 A. & E. 745; Okell v. Charles, 34 L. T. Rep. 822; May v. Kelly, 27 Ala. 497; Walton v. Williams, 44 Ala. 847; Smith v. Lockridge, 8 Bush, 423; Rice v. Ragland, 10 Humph. 545 (semble), accord.

Markham v. Hazen, 48 Ga. 570, contra. - ED.

No other evidence being produced, the learned Baron directed a nonsuit.1 In Michaelmas term, 1843, Petersdorff obtained a rule nisi for a new trial.

Sir F. Thesiger, Solicitor-General, now showed cause. The defendant has not accepted the bill described in the declaration: the instrument produced is indeed no bill of exchange. In Gray v. Milner, where the instrument was not addressed to any one, but had only a place of payment added, and in other respects resembled the document here proved, the acceptor was held liable, as having admitted himself, by the acceptance, to be the party pointed out by the place of payment. Here the drawer addresses himself; and the instrument more nearly resembles a promissory note. It may be that the defendant might have been sued as a surety.

Petersdorff, contra. The principle of Gray v. Milner applies. The defendant, by his acceptance, estops himself from disputing his own character and the nature of the instrument. In Polhill v. Walter,' indeed, it was said that no one could be liable as acceptor, unless he were the person to whom the bill was addressed, or an acceptor for honor. But the question of acceptance in this form was not then distinctly before the court. Here it may be contended that the defendant identifies himself as the person addressed under the name of John Hart. The judge, at nisi prius, was requested, but refused, to allow an amendment, by calling the instrument a promissory note made by the defendant; the writing the name was a new making, according to the principle of Penny v. Innes. (He referred also to Jackson v. Hudson.)

LORD DENMAN, C. J. There is no authority, either in the English law or the general law-merchant, for holding a party to be liable as acceptor upon a bill addressed to another. We must take it on this instrument that the defendant is different from the party to whom it is addressed. Polhill v. Walter and Jackson v. Hudson are authori ties showing that the defendant here cannot be sued as acceptor. In Jackson v. Hudson, Lord Ellenborough treated an acceptance by a party not addressed as contrary to the usage and custom of mer

chants."

66

8

PATTESON, J. No previous case seems to be exactly like this. In Jackson v. Hudson, there was one acceptance by the party to whom the bill was addressed, prior to the acceptance by the defendant. In Gray v. Milner, no party was named in the address; and I must say that the decision in that case appears to me to go to the extremity of

1 Davis v. Clarke, 1 C. & K. 177.- ED.
2 3 B. & Ad. 114.

88 B. & Ad. 114.

what is convenient. It may be considered as having been decided on the ground that the acceptance was not inconsistent with the address, so that the acceptor might be deemed to have admitted himself to be the party addressed. But here another person, the drawer himself, is named in the address. I do not know that a party may not address a bill to himself, and accept, though the proceeding would be absurd enough. Then it is said that the defendant is estopped; but that cannot be supported where the instrument shows, on its face, that he cannot be the acceptor.

WILLIAMS, J. The only question is, whether the defendant is such an acceptor as is described in the declaration; that is, of a bill of exchange directed to him. No doubt this can be so only where he is the drawee; but here the bill is not addressed to the defendant at all. This is, therefore, not an acceptance within the custom of merchants. COLERIDGE, J. The safe course is to adhere to the mercantile rule, that an acceptance can be made only by the party addressed, or for his honor. Here the last is not pretended; and the first cannot be presumed. If the John Hart addressed is different from the John Hart who draws, there is still no acceptance: if the same, then the instrument is a promissory note, and not a bill of exchange.

Rule discharged.

OWEN v. VAN USTER.

IN THE COMMON PLEAS, Nov. 11, 1850.

[Reported in 20 Law Journal Reports, 61.]

ASSUMPSIT on a bill of exchange.

The declaration stated that the plaintiff, on the 26th of April, 1850, made his bill, and directed it to the defendant, and required the defendant to pay to the order of the plaintiff in London £100, three months after date, and that the defendant accepted the said bill, &c. Plea: that the defendant did not accept.

At the trial before Cresswell, J., at the sittings at Guildhall, in ́ Michaelmas term, 1850, the bill was produced. It was directed to The Allty Crib Mining Company, near Talybout, Aberystwith," and was accepted "For the Allty Crib Mining Company. Payable at Messrs. Williams, Deacon, & Co.'s. W. T. Van Uster, manager."

On the part of the defendant, it was submitted that this acceptance did not bind the defendant, because he had no authority to accept;