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And if an acceptance is struck out before a bill left for acceptance is called for, the drawee is not compellable to shew in evidence why it was struck out, or when, or by whom. (72)

And it makes no difference though the bill is left beyond the usual time with the drawee, if the delay is imputable not to the drawee but to the holder.

The obligation also of a complete acceptance may be (73) waived.

in his award that the plaintiff on the 31st of May, left the bill with the defendants for acceptance, that they signed an acceptance thereon, but that, on the 1st of June, and 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 favour 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. See Sproat v. Matthews, ante, p. 153. note (47).

(72) See Cox. v. Troy, ante p. 162.

(73) Vide Walpole v. Pulteney, and Black v. Peele, post. p. 164., and Mason v. Hunt, post. p. 165. note (76); —and in Dingwall v. Dunster, post. p. 169. note (84), the whole court held, that though nothing short of an express agreement would discharge the acceptor, an express agreement would.

Whatley v. Tricker, 1 Campb. 35. The indorsees of a bill, knowing that it had been accepted for the accommodation of the drawer, and possessing goods of the drawer's, from the produce of which they expected payment, said, (at a meeting of

further trouble, is an express waiver; the receipt This waiver may be either expressed or implied. An (74) agreement to consider an acceptance as at an end, or a (75) message to the acceptor upon an accommodation bill, that the business was settled with the drawer, and he need give himself no

the acceptors' creditors) that "they looked to the drawer, and should not come upon the acceptors." In consequence of which the latter assigned their property for the benefit of their creditors, and paid them 15s. in the pound. The drawer's goods however proved to be of little value, and he became insolvent, upon which the indorsees sued the acceptors. Lord Ellenborough said, that if the plaintiff's language amounted to an unconditional renunciation of all claim upon the acceptors, whereby the latter had entered into the arrangement with their creditors, the acceptors were discharged; if only to a conditional promise, not to resort to the acceptors, if satisfied elsewhere, they were not. The jury found for the plaintiffs.

(74) Walpole v. Pulteney, cited Dougl. 236, 237-248, 249. Walpole held a bill accepted by Pulteney, but agreed to consider his acceptance as at an end, and wrote in his bill-book, opposite the entry of this bill," Mr. Pulteney's acceptance at an end." Walpole kept the bill from 1772 to 1775, without calling upon Pulteney, and then brought this action. The jury found a verdict for the plaintiff; but the court of exchequer thought the verdict wrong, and granted a new trial, upon which the jury found for the defendant.

(75) Black v. Peele, cit. Dougl. 236, 237-248, 249. Black arrested Peele as acceptor of a bill drawn by Dallas, but on finding that the acceptance was an accommodation one, his attorney took a security from Dallas, and sent word to Peele that he had settled with Dallas, and that Peele need give himself no further trouble; Dallas afterwards became bankrupt, upon which Black again sued Peele; but it was held, that as Black had in express words discharged Peele, the action could not be maintained.

(76) of the known consideration of the acceptance, an implied one.

But a declaration by the holder that he should look to the drawer for payment, and that he wanted no more of the acceptor than another debt, not connected with the bill, will not be suf ficient to discharge the acceptor. (77)

Though in consequence of that declaration, the acceptor pays the other debt. (77)

(76) Mason v. Hunt, Dougl. 284. 297. ante p. 133. note (3). Rowland Hunt agreed that his partner, Thomas Hunt, should, on consignment of a cargo, and an order for its insurance, accept bills for 3,600l. The cargo was consigned, the order for insurance given, and Thomas Hunt effected the insurance, but he refused to accept the bills; after some negociation, the plaintiff being the holder, signed a memorandum, by which, after stating that the consignment had been made on account of the bills, and that the Hunts, being apprehensive that the net proceeds might not be sufficient to discharge them, had refused to accept, he accepted the bill of lading and policy, and undertook to apply the net proceeds, when in cash, as far as they would go, to the credit of the payee, in part payment of the bills; the plaintiff afterwards sued the Hunts; and insisted that Rowland Hunt's agreement was an acceptance: but after a verdict for the defendant, and time taken to consider upon a rule to shew cause why there should not be a new trial, the whole court was clear that by the memorandum the plaintiff had waived all right to insist on Rowland Hunt's agreement, for it was obvious that the whole consideration of the acceptance was the consignment, upon which there would be a commission, and the policy, and these the plaintiff had taken to himself.

(77) Parker v. Leigh, 2 Stark. 228. In an action against the acceptor on a bill for 300l., the defendant proved that he

If the holder of a bill receives a part of the money from the drawer, and takes a promise from him upon the back of the bill for the payment of the residue at an enlarged time, it (78) is for a jury to say whether this is not a waiver of the acceptance.

owed plaintiff 700l., or warrants of attorney, and that plaintiff had said, that as to the 3007. bill, he should look to the drawer for that, and that he wanted no more from defendant than what was included in the warrants of attorney, and that in consequence of this declaration, defendant paid plaintiff what was included in the warrants of attorney; but Lord Ellenborough held, that as plaintiff bad not expressly renounced all claim upon this acceptance, it continued binding, and the plaintiff had a verdict.

(78) Ellis v. Galindo, B.R. M. 24 Geo. 3. cited Dougl. 250. note. James Galindo drew upon his brother for 304, in favour of the plaintiff; when the bill became due James paid the plaintiff 31. 158. 4d. and indorsed a promise to pay the remainder in three months. Three years elapsed, and then the plaintiff sued the drawee upon his acceptance. Lord Mansfield thought the defendant discharged, and nonsuited the plaintiff. An application was made for a new trial, when Lord Mansfield said, he thought the case did not interfere with that of Dingwall v. Dunster, but a rule to shew cause was granted: after cause was shewn, Lord Mansfield said, "The doubt is, whether the question should not have been left to the jury, it being a question of intention arising out of the circumstances." Willes J. thought it should have been left to the jury; and per Buller J. "I rather think the case should have gone to the jury; but I am not therefore of opinion that there ought to be a new trial; the indorsement could not have been meant as an additional security, for the drawer was equally liable before. I should have left the question to the jury, but with very strong observations; and as the demand is so small, I do not think there ought to be a new trial." Rule discharged.

Where a bill has been accepted for the mere accommodation of the drawer, it has been held, that if the holder, knowing that circumstance, give time to the drawer, he (79) will discharge the acceptor.

But this has been doubted. (80) (81) (82)

Especially if the holder when he took the bill, did not know it was an accommodation acceptance. (81)

(79) Laxton v. Peat, 2 Campb. N. P. C. 185. The holder of a bill, knowing that it had been accepted for the accommodation of the drawer, received part payment from the drawer, and gave him time for payment of the remainder; he now sued the acceptor; but Lord Ellenborough held, that the acceptor was a mere surety, and by time having been given to the principal, was discharged. Nonsuit.

(80) Raggett v. Axmore, 4 Taunt. 730. In an action against the acceptor of a bill, motion for new trial, on the ground that it was an accommodation acceptance, and that the holder had given time to the drawer. Sed per Mansfield C. J. there was no sufficient evidence that it was an accommodation acceptance; nevertheless, excepting in the case in Campbell, it never was known that any thing passing between other parties could discharge an acceptor; but it is unnecessary to decide that question.

(81) Fentum v. Pocock, 5 Taunt. 192. Indorsee against acceptor, on bill drawn by Beazley. Defence, that plaintiff had taken a cognovit from Beazley, payable at a future day, without defendant's privity or consent; that defendant's was a mere accommodation acceptance, and that plaintiff knew it was so when he took the cognovit from Beazley: Mansfield €. J. thought this no answer to the action; and verdict for plaintiff. On rule nisi for nonsuit, and cause shewn, two cases were cited in which Lord Ellenborough, under similar circumstances, held the acceptor discharged; but the court thought those cases wrong; and rule discharged. Mansfield C. J. noticed that plaintiff did not know, when he took the bill, that it was an accommodation acceptance, but he disclaimed proceeding on that ground.

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