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And before this decision it was adjudged, that if upon such a cancellation, the holder noted the bill for non-acceptance, he (71) precluded himself from insisting that the acceptance was binding.

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.

erased by inking it over: when, or by whom that was done, did not appear. Plaintiffs brought an action on the ground that the writing the acceptance bound the drawee, and that he could not afterwards cancel his acceptance: but on case, the court were clear the acceptance might be cancelled at any time before it was delivered out by the drawee, and they ordered the postea to be delivered to the defendant. Plaintiff had leave to turn the case into a special verdict. See also ante, p. 117. note (69).

(71) Bentinck v. Ďorrien and another, 6 East. 199. This action which was by an endorsee against the defendants as acceptors of a bill, was referred; and the arbitrator, after reciting 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 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. See Sproat v. Matthews, ante, p. 113. note (47).

(72) See Cox v. Troy, ante, p. 118.

(73) Vide Walpole v. Pulteney, and Black v. Peele, post. p. 120., and Mason v. Hunt, post. p. 120. note (76);—and in Dingwall v. Dunster, post. p. 123. 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 endorsees 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 the acceptors' creditors) that they looked to the drawer, and should not come upon the acceptors.'

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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 further trouble, is an express waiver; the receipt (76) of the known consideration of the acceptance, an implied one.

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 endorsees 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) Mason v. Hunt, Dougl. 284. 297. ante p. 97. 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 £3,600. The cargo was consigned, the order for insurance given, and Thomas Hunt effected the insurance, but he refused to accept the bills; after some negotiation, the plaintiff being the holder, signed a memorandum, by which, after stating that the consigninent 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.

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 sufficient to discharge the acceptor. (77)

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

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.

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.

(77) Parker v. Leigh, 2 Stark. 228. In an action against the acceptor on a bill for £300, the defendant proved that he owed plaintiff £700, or warrants of attorney, and that plaintiff had said, that as to the £300 bill, he should look to the drawer for that, and that he wanted no more from defendant that 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 had 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 £30 in favor of the plaintiff; when the bill became due, James paid the plaintiff £3 15s. 4d. and endorsed 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 endorsement 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.

(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 pay

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)

Or if it were duly presented, when due, to the acceptor, and he promised payment. (82)

Telling an accommodation acceptor that he shall not be troubled about the bill, will not discharge him, though the party knew him to be an accommodation acceptor only, if such party held for value. (83)

ment 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. Endorsee 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 C. 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.

(82) Kerrison v. Cooke, 3 Campb. 362. Endorsee against acceptor. Defence, that it was an accommodation acceptance to accommodate the drawer, that plaintiff knew it, and that on the bill's becoming due, plaintiff gave time to the drawer without the concurrence of defendant; and Laxton v. Peat was cited as in point: when the bill was due it was presented to defendant, and he promised payment; per Gibbs J. "Grave doubts have been entertained of Laxton v. Peat, and this case may be distinguished from it; here payment is demanded of defendant, and he promises payment. I think the giving time under these circumstances to the drawer did not discharge the acceptor." Verdict for plaintiff. Sed vide Adams v. Gregg-the next case.

(83) Adams v. Gregg, 2 Stark. 531. Defendant accepted a bill to accommodate Holmes, and plaintiff knew it; Holmes paid it to plaintiff for an old debt; when it became due, defendant could not pay it, and one Jones gave plaintiff the amount, on a stipulation that he should, if necessary, stand in plaintiff's situation. Defendant asked Jones to give up the bill, which he refused, but he said defendant should not be troubled about it. Jones afterwards sued defendant in plaintiff's name; defend

But a neglect to call upon an acceptor, or an indulgence to any of the other parties, though for ever so long a time, shall (84) not be considered as a waiver.

If the holder of a bill agree not to sue the acceptor, upon his making an affidavit that the acceptance is a forgery, he will be (85) precluded from suing him, if such affidavit, be made and sworn, though it be false.

ant insisted she was discharged. Abbott C. J. seemed to think she would have been, had Jones given time to the drawer, or disabled himself for a moment from suing him; but he thought Jones's declaration that defendant should not be troubled, no discharge, and plaintiff had a verdict.

(84) Dingwall v. Dunster, Dougl. 235. 247. Dunster lent Wheate his acceptance, which became due 13th December, 1774; it was then in the hands of Dingwall, but he, finding that Wheate was the real debtor, wrote to his attorney in February and November, 1775, for payment, received interest upon the bill from Wheate, and suffered several years to elapse without calling on Dunster; on 13th of February, 1775, Dunster wrote to thank Dingwall for not proceeding against him, and said he had been informed by a person Dingwall had sent, that Wheate had taken up the bill; but Dingwall took no notice of this letter: he afterwards sued Dunster, for whom the jury found; but upon a rule to shew cause why there should not be a new trial, the whole court held there was nothing in the plaintiff's conduct to discharge Dunster; that it meant nothing more than an indulgence to him, and that he would try to recover from the drawer if he could; but by Lord Mansfield, no use had been made of the defendant's letter; probably the fact did not warrant him in asserting that a person the plaintiff sent had told him Wheate had taken up the bill; had the plaintiff by any thing in his conduct, confirmed him in such a belief, it might have altered the case.

Anderson v. Cleveland, 13 East's Rep. 430. n. In an action by an endorsee against the acceptor of a bill, no demand was proved till three months after the bill was due, and when the drawer had become insolvent. But by Lord Mansfield, the acceptor of a bill, or maker of a note, always remains liable. The acceptance is proof of having assets in his hands, and he ought never to part with them, unless he be sure that the bill is paid by the drawer.

(85) Stevens v. Thacker, Peake, N. P. C. 187. The plaintiff, who was endorsee of a bill, presented it to the defendant, as acceptor, for payment. The defendant said the acceptance was a forgery, and offered to make an affidavit that he had never accepted the bill. The plaintiff at first agreed not to sue him, if he would make such affidavit; but being afterwards convinced that the defendant had accepted the bill, refused to receive the affidavit, and brought this action. The affidavit had been engrossed, but not sworn. It was urged, that the plaintiff could not recede from his agreement. But Lord Kenyon said, that had the affidavit been sworn, he should have held that the defendant had discharged himself from this action, though such affidavit had been false. But not having been sworn, the defendant was still liable, unless he could prove the acceptance a forgery. Verdict for the plaintiff

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