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upon the back of the paper (or anywhere else, so that it is not with that of the maker), as a further assurance in favor of the payee.' Now this act, apart from statute, is not properly speaking an indorsement; while the paper is in the hands of the payee it cannot be indorsed by another, according to the unwritten law merchant; the payee of paper payable to order must be the first indorser. The contract in question is one which is not recognized by the law merchant' proper.

It is true that the courts of some States treat the party as an indorser, as far as they can; such courts will not admit that he can be treated in any way as on the footing of a

How the party maker of the note, and probably that conforms is treated by

the courts. to what was the actual intention in most cases ; but still those courts treat the party not as an indorser proper, but as an indorser sub modo. Certain other courts meet the difficulties of the anomalous contract well, by treating it as a contract but imperfectly expressed, or rather as expressed but in part; and accordingly, the contract being regarded as an open one, they receive evidence to show what, in point of fact, was the understanding of the parties in the execution of the particular engagement. But the party is treated, prima facie, as a maker.5

Another course, more commonly followed than either of the foregoing ones, proceeds to treat the contract in the way of an arbitrary presumption; the party being regarded as in the situation of a maker of the note. If he signed the paper when it

1 Doubtless the same might be said of a bill of exchange, or perhaps of a cheque. Jenkins v. Coomber, 1898, 2 Q. B. 168, bill of exchange. But such cases are seldom if ever met with in this country.

? Jenkins v. Coomber, supra. See also Steele v. McKinley, 5 App. Cas. 754. That is, there is no custom of the kind.

3 Coulter v. Richmond, 59 N. Y. 478 ; Hall v. Newcomb, 7 Hill, 416; Clouston v. Barbiere, 4 Sneed, 336.

4 Sylvester v. Downer, 20 Vt. 355 ; Cases, 35. See Eilbert v. Finkbeiner, 68 Penn. St. 243; Carr v. Rowland, 14 Texas, 275; Good v. Martin, 95 U. 3. 90 ; Rey v. Simpson, 22 How. 341.

Sylvester v. Downer, supra. 6 Union Bank v. Willis, 8 Met. 504 ; Rodocanachi v. Buttrick, 125 Mass. 134 ; Phillips v. Cox, 61 Ind. 345; Herbage v. McEntee, 40 Mich. 337; Sem.

5

was executed,' he is a co-maker and joint maker with the real maker; if he signed at some later time, he is still a maker, though not a joint maker, - a maker by way of guarantor or surety. In the first of the two cases his liability is supported by the same consideration which supports that of the real maker; in the second, it must be supported by a new consideration of its own.? Probably for some purposes the party would be treated as a surety even in the first case, where he is held to be joint maker; for it is to be remembered that a surety may be a joint maker with his principal. The courts which adopt this course admit evidence to show the time when the anomalous contract was signed, giving effect to the undertaking accordingly; but that is the extent to which they allow the contract to be effected by evidence.

All this, however, supposes that the anomalous signing was for the further security of the payee, with liability to him. If that was not the case, if the signing was not intended to make the party liable to the payee, but to add security, with indorsement by the payee, to a purchaser of the paper, then the signing is not deemed anomalous at all,

it is indorsement proper, by the better doctrine, if the payee also has indorsed.5

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.ple v. Turner, 65 Mo. 696 ; Bank of Jamaica v. Jefferson, 92 Tenn. 537 ; Ewan v. Brooks-Waterfield Co., 55 Ohio St. 596.

1 Rodocanachi v. Buttrick, supra ; Way v. Butterworth, 108 Mass. 509; Greenough v. Smead, 3 Ohio St. 415 ; Seymour v. Mickey, 15 Ohio St. 515.

2 Tenney v. Prince, 4 Pick. 385 ; Green r. Shepherd, 5 Allen, 589, 591 ; Moses v. Lawrence Bank, 149 U. S. 298 ; Cases, 221.

8 Wright v. Morse, 9 Gray, 337.

4 There is much real, and still more seeming conflict of authority in regard to cases of anomalous signature ; but most of the cases, of which there is a multitude, will fall under one of the three classes of the text.

6 Bigelow v. Colton, 13 Gray, 309 ; Clapp v. Rice, id. 403 ; Lewis v. Monahan, 173 Mass. 122 ; Bank v. Payne, 111 Mo. 291 ; Bank v. Nordgen, 157 Ill. 663. But see Sylvester v. Downer, 20 Vt. 355 ; Cases, 35; Ewan v. Brooks-Waterfield Co., 55 Ohio St. 596 ; McFetrich v. Woodrow, 67 N. H. 174. Whether the maker of the note indorsed it before or after the indorsements of the defendant and the plaintiff were affixed was immaterial, if the maker indorsed the note before it was discounted. . . . The plaintiff and the defendant were not makers, but were indorsers of a note which was in effect a note payable to the bearer.' Lewis v. Monahan, supra; in which the plaintiff

The Statute provides that a person who places his name upon an instrument otherwise than as maker, drawer, or acceptor is an indorser, unless he clearly indicates his intention

Under the to be bound in some other capacity. And, further, Statute, a

quasi-indorser. that a person not otherwise a party to an instrument, by placing his name thereon in blank, before delivery, is liable as indorser, in accordance with certain rules (which will be stated when indorsement is reached). It seems however that the non-statutory law still obtains, in so far as the Statute has not plainly repealed it.”

and defendant were successive parties by indorsement of a note, before delivery, for the maker's benefit. The maker, who was also payee, indorsed above their names, and before delivery.

1 N. I. L. $$ 70, 71.

· See Brooker v. Stackpole, 168 Mass. 537, under legislation of 1874, and holding that, though the anomalous party was by that change in the law entitled to notice of dishonor, he remained in all other respects' a co-maker. See also Rodocanachi v. Buttrick, 125 Mass. 134.

CHAPTER V.

ACCEPTOR'S CONTRACT.

§ 1. ACCEPTANCE PROPER: NATURE AND INCIDENTS.

The drawee, as such, of a bill of exchange ? (or by the better rule of a cheque?) is under no liability whatever to the holder; Drawer not

to the holder he has not bound himself in contract, liable.

and he cannot be liable to the holder in tort upon refusal to honor the paper because as drawee he owes no duty to him. Until acceptance he owes no duty to any one, unless it be to the drawer; and to the drawer his duty is one of the common law only. The instrument is not an assignment of the money to the payee or other holder.

Acceptance proper is the act by which the drawee of a bill of exchange, whether foreign or inland, signifies his assent to the What accept

order of the drawer, that is, his undertaking, ance is : its according to the law merchant, to pay the bill.. effect.

Sometimes a cheque is said to have been accepted' by some significant act of the drawee; but the acceptance' will be found to be a different thing in legal effect from the acceptance of a bill of exchange. If written upon the cheque, it will be certification; if not, it will at most be only an external promise to pay it. In neither case will it be of the same effect as acceptance proper of a bill of exchange, i. e. written acceptance upon the bill.

1 N. I. L. 8 134.

2 Bank of Republic v. Millard, 10 Wall. 152; Fourth Street Bank v. Yardley, 165 U. S. 634; Akin v. Jones, 93 Tenn. 353; Cincinnati R. Co. v. Bank, 54 Ohio St. 60 ; Covert v. Rhodes, 48 Ohio St. 66 ; House v. Kountze, 17 Texas Civ. Ap. 402; N. I. L. $ 193. Contra, Thomas v. Exchange Bank, 99 Iowa, 202; Gage Hotel Co. v. Union Bank, 171 Ill. 531.

8 N. I. L. $134. This is true also, by the better rule, in regard to cheques. See note 2 ; N. I. L. S 196.

· N. I. L. & 139. In the case of bills drawn in a set the acceptance may be written on any part and should be written on but one ; otherwise the acceptor may be liable more than once, for the parts might fall into the hands of several holders in due course. N. I. L. $ 188.

No one else than the drawee or his agent (except perhaps as burety or guarantor with the drawee) can assume the position and liability of acceptor. For example: A draws a bill on B, payable to the order of C. B writes his name across the face of the bill, or elsewhere

upon

it. B is an acceptor, bound absolutely to pay the bill. Again: A draws a bill on B, payable to the order of C. D writes the word "Accepted' across the face of the bill, and sigus his name thereto.

D is not an acceptor of the bill.

By absolute acceptance, the drawee contracts much as the maker of a promissory note contracts; he binds himself to the holder absolutely to pay, according to the tenor of the bill. But the acceptor may annex a condition to his acceptance, when of course he will be bound according to the tenor of his acceptance.”

Acceptance proper binds the acceptor by the custom without regard to the question whether the bill was taken by the holder on the faith of the acceptance. The act is effectual though not done until after the holder became owner of the bill, and though he took it without any intimation on the part of the drawee of intention to accept it. Enough that the holder is a holder in due course, though there was no consideration between him and the acceptor, and though there was no consideration between the acceptor and the drawer, for the acceptance. For example: The plaintiff was payee of a foreign bill of exchange, which he took from the drawer on the day of its date, for value,

i Davis v. Clarke, 6 Q. B. 16; Cases, 45; May v. Kelly, 27 Ala. 497. There could be no protest and notice, such as would bind the drawer or indorsers on D's refusal to pay, for the drawer never requested him to pay.

If no drawee is named in a draft, the instrument may be treated either as a note (or it is said) as a bill. If it is treated as a bill, the drawer may be deemed drawee and acceptor. Funk v. Babbitt, 156 Ill. 408. Compare N. I. L. & 24, 5, of ambiguous instruments.

2 N. I. L. 8 69; Herter v. Goss & Edsall Co., 57 N. J. 42.

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