of the drawer for a particular purpose, which is after 2 Cartwright v. Williams, at Guildhall, sittings after Hil. 58 Geo. 3. 3 Price. Neal, 3 Burr. 1354. 1 Bla. Rep. 390. S. C. Two forged bills were drawn upon the plaintiff, which he accepted and paid; on discovering the forgery, he brought this action for money had and received, to recover back the money. At the trial, the jury found a verdict for the plaintiff; and on a case reserved, Lord Mansfield said, it was incumbent on the plaintiff to be satisfied that the bills drawn upon him were the drawer's hand-writing, before he accepted and paid it them; but it was not incumbent on the defendant to inquire into it. See also Smith and another v. Mercer, 1 Marsh. 453. S. P. and Jones v. Ryde, id. 160.-Barber v. Gingel, s Esp. Rep. 60. ante, 224, 5. Wilkinson v. Lutwidge, Stra. 648. In an action against the ac ceptor of a bill, Raymond, C. J. allowed the plaintiff to read the bill, without proving the drawer's hand, because he thought the acceptance a sufficient acknowledgment on the part of the defendant; but he said it would not be conclusive; and if the defendant could shew to the contrary, the reading of the bill should not preclude him. Jenys v. Fawler, 2 Stra. 946. In an action against the acceptor of a bill, Raymond, C. J. held it was not necessary for the plaintiff to prove the drawer's hand, and on the defendant's calling witnesses to swear that they believed it was not the drawer's hand, the chief justice would not admit the evidence, and he inclined strongly that actual proof of forgery would not exonerate the defendant. In Smith v. Chester, 1 T. R. 655. Buller, J. said, that when a bill is presented for acceptance, the acceptor looks to the handwriting of the drawer, which he is afterwards precluded from disputing, and it is on that account he is liable, even though the bill is forged. Per Dampier, J. in Bass v. Clive, 4 Maul. & Sel. 15. Suppose the drawer's name is forged, yet if the drawee accept the bill he is precluded from averring, as against strangers, that it is a forgery. Leach . Buchanan, 4 Esp. Ni. Pri. Ca. 226. The plaintiff, before he took a bill, sent a person with it to the defendant, to en R 4thly. Of the liability of the acceptor. 4thly. Of the liability of the acceptor. ance of which turns out to have been forged by an indorser, delivers it up to him and receives a fresh bill, he may recover upon the latter, unless there was an agreement between him and such indorser to stifle a prosecution for the forgery'. This obligation of the acceptor, it is said, is irrevocable". Thus in Trimmer v. Oddy and quire whether the acceptance upon it were his hand-writing; the defendant said that it was, and that it would be duly paid. He now offered evidence of the actual forgery of the acceptance; but Lord Ellenborough held, that that proof would not discharge the defendant; that after having so accredited the bill, and induced a person to take it, he was bound to take it. Verdict for the plaintiff. Cooper v. Le Blanc, 2 Stra. 1051. The plaintiff, on discounting a note, sent to the defendant to know whether an indorsement on it was his, and the defendant said it was, and the note would be paid when due, he would notwithstanding have given evidence by similitude of hands, that the indorsement was a forgery, but Lord Hardwicke would not allow it; he seemed inclined however to admit proof of actual forgery, but the defendant could not adduce it, and the plaintiff had a verdict. See Wilkinson v. Lutwidge, Stra. 648. ante, 241, note 3. 1 Wallace v. Hardacre, 1 Campb. 45. Mar. 83.-Molloy, book 2. chap. x. pl. 28. page 103.-Laws of Hamburgh, article 7.-Bayl. SS. In Trimmer v. Oddy and others, tried before Lord Kenyon, July, 12, 1800, Guildhall, London, Gibbs for plaintiff, Erskine for defendant; (M. S. and cited in Bentinck v. Dorrein, 6 East. 200.-See also Bayl. 88. in notes. Note, the decla rations contained counts against the drawee for having mutilated the bill.) Lord Kenyon said, "If the drawee deface the bill, he is liable as acceptor. About forty years ago it was thought, that if a man wrote any thing upon a bill, he was to be bound as an acceptor; so that if a man had set down some sums of money, and cast them up on the back of the bill, that would amount to an acceptance. But this is a doctrine to which I cannot subscribe; but if a party put upon a bill that which essentially injuries and defaces it, that makes him liable as acceptor. When the defendants had written an acceptance on the bill, they could not be allowed to strike it out again, the Jaw gives no time to the party to change his mind, but if accepted by mistake, it might then be otherwise;" and Lord Kenyon said, he " inclined to think that in such case the drawee would not be liable." It is observed in Bayl. 88. note 2. that this case was cited in Bentinck . Dorrein, 6 East. 200. and the Hamburgh Ordinance was referred to, as having been recognized by Lord Kenyon, to be the law of mer chants here; and Lord Ellenborough said," the rule is certainly laid down in the Hamburgh Ordinance, as stated 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 Lawrence, J. in the last mentioned case, (6 East. 201.) said "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." From this it would appear that Mr. J. Lawrence had taken the same view of this question as Pothier, who cites from La Serra, C. 10. a case where the holder of a bill having left it for ac- 4thly. Of the ceptance, the drawee, before he returned it, cancelled the acceptance liability of the acwhich he had written and signed upon it, and it was adjudged that ceptor. this acceptance was annulled, and observes, "La raison est, que le concours de volontés qui forme un contrat, est un concours de volontés que les parties se sont reciproquement declarees; sans cela, la volonté d'une partie ne peut acquérir de droit a l'autre partic, ni par consequent être irrevocable. Suivant ces principes, pour que le contrat entre le propriétaire de la lettre et celui sur qui elle est tirée, soit parfait, il ne suffit pas que celui-ci ait en pendant quelque temps la volonté d'accepter la lettre, et qu'il ait écrit au bas qu'il l'acceptoit; taut qu'il n'a pas déclaré cette volonté au porteur, le contrat n'est pas parfait ; il peut changer de volonté et rayer son acceptation." Traité du Contrat de Change, part 1, ch. 3. s. 3. pl. 44. See also Emerigon Traité des Assurances, ch. 2. s. 4. p. 45. who observes that La Serra, pose en maxime, que tant que l'acceptant est maitre de sa signature, c'est à dire, qu'il n'a pas délivré la lettre de change, il peut rayer son acceptation." See also Stevenson on Bills, p. 162. 164. 66 Thornton v. Dick and others, 4 Esp. Rep. 270. A bill drawn on the defendants payable three months after sight, was, on the 1st of October, left with them by the plaintiffs for acceptance. It was not called for until the 11th, when it appeared, that the words “accepted 1st October, 1779, Q. Dick and Co." had been written upon the bill, and afterwards nearly obliterated by ink, the words, however, were still legible at the time of drawing the bill, the defendants were in advance to the drawer. The plaintiffs as indorsees sued the defendants as acceptors, the acceptance and subsequent cancellation were admitted, and the only question was, whether the cancellation having been made before the re-delivery of the bill had discharged the acceptor. But Lord Ellenborough said, that if a party once accepted a bill he had done the act, and could not retract, and that there was no difference in point of legal effect, whether the bill were payable after sight or after date. Verdict for the plaintiffs. Roper and others v. Birkbeck and others, 15 East. 17. A bill of exchange having been accepted payable at Ladbrooke's, with a direction in writing on it, "in case of need to apply at Boldero's," and having been dishonored when due at Ladbrooke's, and thereupon brought to Boldero, who thinking that it had been made payable at his house, under that mistake cancelled the acceptance; but presently, observing the mistake, wrote under it, "cancelled by mistake," and signed his initials to it; yet, nevertheless, paid the bill for the honor of the plaintiffs, whose indorsement was on it; it was held, that the plaintiffs, on the proof of such cancellation by mistake, might recover 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. Undoubtedly 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 4thly. Of the Tiability of the acceptor 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 3, under similar circumstances Lord Ellenborough, C. J. observed, "that the rule is certainly laid down in the Hamburgh Ordinance, that an acceptance once made "cannot be revoked; though to be sure, that leaves "the question open as to what is an acceptance, whe"ther it be perfected before the delivery of the bill;" and Mr. J. Lawrence observed, "that when the gene"ral 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 said, "that had it been a bill sent for acceptance and accepted, no change of circumstances could have altered that fact." It seems, there 66 1 who put his signature to a bill; but has not parted with it, says, that before he does part with it," il peut changer de volonté et rayer son acceptation." A fortiori, then, a third person who cancels an acceptance by mistake, having no authority so to do, shall not be held thereby to make void the bill, but shall be at liberty to correct that mistake, in furtherance of the rights of the parties to the bill. Per curiam. Rule discharged. * Trimmer v. Oddy and others, ante, p. 242, n. 2. 2 Thornton v. Dick, 4 Esp. Rep. 270. ante, p. 243. * Bentinck v. Dorrein, 6 East. 199.-2 Smith's Rep. 337. S. C. see post, 245. Paton v. Winter, 1 Taunt. 423. 31 Campb. 426. cited in Roper v. Birkbeck, 15 East. 19. liability of the ac fore, that this point, as to the cancelling an accept 4thly. Of the ance, is not completely settled'. There appears no ceptor. 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 of the bill, the acceptance of which has been so cancelled, cause it to be noted for non-acceptance, he will afterwards be precluded from insisting that the bill was accepted 4. The liability of the acceptor cannot in general be How this liability may be discharged. released or discharged, otherwise than by payment or by express release or waiver. If, however, by the 1 1 Bayl. 88, 9. 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, 161, 2. 3 Trimmer and Oddy, ante, 242. note 2. * Bentinck v. Dorrein 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 acceptance 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 favor of the defendants. A rule nisi was obtained for setting aside this award, on the ground that the acceptance was irrevocable. But after cause shewn, 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 7. Matthews, 1 T. R. 182, ante, 238.' Poth. pl. 76. 118.--Mar. 83, 145, 6.-Bacon v. Searles, 1 Hen. Bla. 88.-Fentum v. Pocock, 1 Marsh. 14.-5 Taunt. 192. S. C. |