the altera bill, &c. Effect of date by the drawee after it is drawn and indorsed, but before it is ac tion of a cepted, such alteration will invalidate the bill, and discharge the drawer and indorsers from liability, though it be in the hands of a bona fide holder, who is ignorant of the circumstances. And after a promissory note has been made by one person, the name of another cannot be added thereto as surety, unless by indorsement. So also where A. and [105] B. having exchanged their acceptances, it was held that the delivery of the respective bills for acceptance, and the re-delivery of the same by the acceptors to the respective drawers, was a negotiation of the bills, and that such bills could not, after they had been so exchanged for a valuable consideration (as the exchange of acceptances is) for twenty days be post-dated, although during all that time each had remained in the hands of the original drawer. And even the subsequent insertion of the nature of the consideration of the bill will render it void. But where the drawee of a bill of exchange payable at three months after date, requested the drawer that it might be altered to four months, to which the latter consented, and which was done whilst in his hands, and before it was negotiated or accepted, it was held that such altera acceptance, defendant requested that the Outhwaite and another v. Huntley, 4 Clark v. Blackstock, Holt C. N. P. 474. A promissory note signed by A. and subsequently by B. whilst in the hands of the payee as surety for A. unless such signature of B. is in virtue of a previous agreement at the time of making the note, it will be void without an additional stamp. d Cardwell v. Martin, 9 East, 190. 1 Campb. 79. S. C. On the 3d of June, 1807, the defendant and Giles and Co. exchanged acceptances; on the 23d, before either of the bills had been passed away, they altered the dates to the 23d; the bills were payable at certain periods after date; Lord Ellenborough thought a new stamp necessary, and nonsuited the plaintiff, with liberty to move to set aside the nonsuit: on motion accordingly, the whole court thought that the exchange of acceptances was a negotiation of each bill, and that the subsequent alteration rendered a new stamp necessary. Rule refused. Note.Each bill way payable to the drawer's order, and the plaintiff was a bona fide indorsee. 9 East, 357. 6 East, 312. It Knill v. Williams, 10 East, 431. This was an action on a note by which nine montes after date, the defendant promised to pay the plaintiff or order, 1001. value received, for the good will of the lease and trade of Mr. F. Knill, deceased. appeared at the trial before Le Blanc, J. at Hereford, that the words in italics were added by the consent of both parties, on the day after the note had been signed and delivered to the plaintiff, without any new stamp being impressed upon it, upon this the plaintiff was nonsuited; and upon a rule nisi to set aside the nonsuit, the whole court held that the alteration was material, and therefore discharged the rule. tion did not invalidate the bill, it not having been a complete instru- Effect of ment prior to the alteration." the alteration of a bill, &c. If upon a bill being presented for acceptance, the payee alters it as to the time of payment, and accepts it so altered, he vacates the bill as against the drawer and indorsers; but if the holder acquiesces in such alteration and acceptance, it is a good bill as between him and the acceptor; and keeping the bill and presenting it for payment at the deferred period, is proof of such acquiescence; and the holder cannot afterwards maintain an action on the case against the acceptor, for thereby destroying the bill. The effect of an alteration in the acceptance of a bill will be hereafter considered. It is proper to observe, that alterations and erasures will frequently give the transaction the [106] appearance of fraud ; and in an action by the indorsee against the acceptor of a bill, the date of which appeared to have been altered by such acceptor, the plaintiff was required to prove that such alteration was made before the indorsement of the bill by the drawer, but proof that it was in the hands of the latter after the acceptance will prima facie suffice. (136) Kennerly v. Nash, 1 Stark. 452, cobs, v. Hart, 2 Stark. 45. JaPaton v. Winter, 1 Taunt. 420. See 6 East, 309. The drawee altered the time of payment of a bill from one month to two and accepted it; the holder kept it two months and then presented it for payment. The court held that this was an acquiescence in the alteration, and di- h Singleton v. Butler, 2 Bos. & Pul. 283. (136) Any alteration, whether material or not, in an instrument under seal, made by the party to whom it is given, will avoid it, unless made by the consent of the party who executed it. But this consent may as well be implied from the nature of the alte ration as be expressed. In a simple contract, which is merely evidence of a promise, an immaterial alteration, however made, not at all affecting the terms of the promise, seems not to be within the same principle of deeds, which, from the alteration, may not be the deeds of the parties; while a similar alteration in a written simple contract might leave it complete evidence of the same contract. Indeed the assent of the party signing such contract, that the omission of a word by a clerical mistake which the law will supply, might be cured by inserting such word, ought to be presumed, to protect him from the imputation of intentional fraud. And in a simple contract an addition by the unnecessary supplying of a word, which the law would supply, is not an alteration in matter or form which would destroy the contract. Per Curiam, Hunt v. Adams, 6 Mass. Rep. 519. See Griffith v. Cox, Overton's Rep. 210. If an acceptance of a bill be cancelled by mistake, it does not avoid the acceptance, and all parties to the bill are bound in the same manner as if the act had not been done. Nevins et al v. De Grand, 15 Mass. Rep. An alteration of the date of a promissory note by the payee whereby the time of payment is retarded, and afterwards discounted with innocent persons by the payee on indorsing it, avoids the note. Bank of U. S. v. Russell & Boone, 3 Yeates' Rep. 391. See 3 Cranch, 37. The law will not presume that an alteration apparent on the face of a note was made after its execution. Cumberland Bank v. Hall, 1 Halsted. 215. But whether the alteration, was made after or before the execution of the note, seems to be a question for the jury. Ibid. An alteration of the date of a promissory note without consent, vitiates it in the hands of an innocent indorsee. Stephens v. Graham, 7 Serg. & Rawle, 505. Where after a note was made and indorsed, the maker, without the knowledge or consent of the indorser, (both of whom resided in Albany, where the note was made,) added in the margin "payable at the Bank of America;" (which is in the city of New York,) and payment was accordingly demanded at that bank, and due notice of nonpayment was sent by mail to the indorser at Albany, it was held that the addition of the place of payment was an immaterial alteration, and that the demand and notice was suf Liability of Upon delivery of the bill to the payee or indorsee the liability of the the drawer. drawer becomes complete. The act of drawing a bill, implies an undertaking from the drawer to the payee, and to every subsequent holder fairly entitled to the possession, that the person on whom he draws is capable of binding himself by his acceptance; that he is to be found at the place where he is described to reside, if that description be mentioned in the bill; that if the bill be duly presented to him, he will accept in writing on the bill itself, according to its tenor; and that he will pay it when it becomes due if presented in proper time for that purpose. This engagement is in all its parts absolute and irrevocable, and therefore where A. in England drew a bill of exchange on B. in a foreign country, who, by the laws of that country was prohibited from paying it, although it was urged that the undertaking of the drawer did not extend to the case of a prohibition to accept or pay the bill, imposed by the law of a foreign country in which the drawee resided, yet it was ruled in an action against the drawer, that this was no defence, it not being necessary for the holder to inquire for what reason the bill was not paid. But if the payment or acceptance be prohibited by the law of this country, it is otherwise. The drawer will also be [ 107 equally liable, whether he draw the bill on his own account or as agent of a third person. And we have also seen, that a person signing his * Mellish v. Simeon, 2 Hen. Bla. 378. Poth. pl. 58. Tooting v. Hubbard, 3 Bos. & Pul. 291. Mellish v. Simeon, 2 Hen. Bla. 378. A bill drawn in London upon Paris, and negotiated through Holland; before it be came due, the French government prohibited the payment of any bill drawn in England, in consequence of which, it was dishonoured and sent back through the different hands by which it had before been negotiated to London; the re-exchange between Paris and Holland raised the bill from 6037. 19s. 10d. to 9057. 13s. 9d. and the re-exchange between Holland and London, to 9137. 4s. 3d. which the plaintiff, the payee, paid; and upon an action by him against the drawer, Eyre, C. J. left it to the jury, whether the defendant was liable for the re-exchange occasioned by returning the bill through Hol land, and they found that he was. An application was made for a new trial, upon the ground that the defendant was not liable for the re-exchange, because there was no default in him, the payment being prohibited by the government of France. But the court held it immaterial why the bill was not paid; that as it was not paid, he was liable to all the consequences, of which the re-exchange was one, and the rule was refused. Pollard v. Herries, 3 Bos. & Pul. 340. Lord Alvanley, C. J. It cannot be disputed, that whatever be the nature of the contract into which a subject of this country enters, he is excused from the performance of it if the laws of his country interpose and forb the perfor mance. Le Feuvre v. Lloyd, 5 Taunt. 749. 1 Marsh. 318. S. C. Ante, 27, note. ficient to charge the indorser. Bank of America v. Woodworth, 18 Johns, 315. But this judgment was afterwards reversed on error. 18 Johns. 391. Three persons joined as drawer, acceptor, and first indorser in making an accommodation bill, and it was afterwards issued for value to J. S. Previously to its being so issued its date had been altered; it was held that the acceptor having assented to the alteration when he was informed of it, it was no answer to an action on the bill against him, that the bill had been so altered without the consent of the drawer and first indorser, and that a fresh stamp was not necessary in consequence of such alteration, the bill having been altered before it was issued in point of law. Downes v. Richardson, 5 Barn. & Ald. 674. See post, 184. If the obligee of a sealed bill procure persons not present at the execution, to add their names as witnesses, without the knowledge of the obligor; this is such an altera® tion as avoids the instrument. But if they did it by mistake, supposing that they were witnessing an assignment then made by the obligee, the bill is good. Marshall v. Gougler, 10 Serg & Rawle, 164. If a person draw a note leaving a blank for the name of the payee, and authorize a person to obtain the money from the payee and insert his name, the note is valid, if the directions are complied with. Stahl v. Berger, Ib. 170. name on a blank paper stamped with a bill stamp, will be liable to pay Liability of to a bona fide holder any sum inserted in the bill, and warranted by the the drawer. stamp." On failure of the performance of this engagement, the drawer of a bill will immediately, and before the time specified in the bill for payment, be liable to an action, not only for the principal sum, but also in certain cases for interest, re-exchange, and costs, as a consequence of the bill not being honoured. Besides this obligation to the payee and the holder, the drawer is also bound to indemnify the acceptor, if he accepted for his accommodation for any loss he may sustain in consequence of his acceptance. These obligations, though absolute and irrevocable, may be discharged by the laches or neglect of the holder, or by other means which will be spoken of hereafter. If a bill be drawn abroad on a person in this country, and the latter refuse acceptance or payment, the drawer will, if discharged by the foreign law, be discharged in this country. Where an annuity was granted in consideration of a bill accepted, which was dishonoured by the acceptor, but paid by the drawer on notice, it was held that this was not such a non-payment of the bill as to vacate the annuity, though the bill was accepted for the accommodation of the drawer, who undertook to furnish assets, but neglected to do so. • Bright v. Purrier, Bul. Ni. Pri. 269. A foreign bill payable 120 days after sight, was presented for acceptance, but acceptance being refused, the holder brought an action immediately against the drawer; the defendant objected that he was not liable till the expiration of the 120 days, and offered to call witnesses to prove that such was the custom of merchants; but Lord Mansfield said, the law was clearly otherwise, and refused to hear the evidence; so the plaintiff recovered. Milford v. Meyor, Dougl. 54. Indorser against the drawer of a bill, which the P Mellish v. Simeon, 5 Hen. Bla. 369. Poth. pl. 97, 8, 9. Cook v. Tower, 1 Taunt. 372. Potter v. Brown, 5 East, 131. are 1. What trans CHAPTER IV. OF THE INDORSEMENT AND TRANSFER OF BILLS, &c. THOUGH Inland Bills are frequently accepted before they are indorsed, yet as all bills may be transferred before acceptance, we will consider the points relative to the transfer of bills and notes in this chapter. a It has been already observed, that it is the transferrable quality of bills and notes which principally distinquishes them from other contracts. and that on account of this property, and of their utility in mercantile transactions, they have been pecularly favoured by our courts. The following points relating to the transfer of bills are to be considered. First, What bills are transferrable. Secondly, By and to whom. Thirdly, At what time. Fourthly, The mode of transfer. Fifthly, Its nature, operation, and obligation, and how that obligation may be released or discharged. And Lastly, Of the consequences of the loss of a bill, note, or check, and what conduct the holder should thereupon pursue. With respect to bills payable to a certain person or order, or to the bills, &c. order of a certain person, no doubt seems ever to have been entertained respecting their negotiability; and though bills payable to bearer, or to a certain person or bearer, were formerly thought not to be negotiable, and considered as mere choses in action, upon a supposition that such instruments contained no authority to assign them, so as to enable the assignee to demand payment of the drawee; yet it is now completely settled, that the decisions tending to support this doctrine, and the reasoning on which they were founded, were equally erroneous. In short, it is now well established that bills, whether payable to order, or to bearer, are equally negotiable from hand to hand ad infinitum; and that the transfer vests in the assignee a right of action on the instrument assigned; sustainable in his own name. [109] But in general, unless the words "or order," "or bearer," or some other words authorizing the payee of a bill, or note, to assign it, be inserted therein, it cannot be transferred so as to give the assignee a a Ante, 5, 6. 8. b Horton v. Coggs, 3 Lev. 299. Hodges v, Steward, 1 Salk. 125. Nicholson v. Sedgwick, 1 Ld. Raym. 180. Mod. Ent. 313. Bills and notes are valid, though they do not contain any words, rendering them negotiable. Smith v. Kendall, 6 T. R. 124. Ante, 65, 6. Grant v Vaughan, 3 Burr. 1516.1 Bla. Rep. 485. S. C. Hinton's case, 2 Show. 235. Vaughan gave Bicknell a draft upon his banker, payable to ship hands of Grant, who sued Vaughan upon Fortune or bearer; the draft came to the it. The defendant contended, that the draft was a mere authority to receive the money, and not negotiable; and that point and another being left to the jury, they found for the defendant, but upon application for a new trial, the court held that it was negotiable, and a new trial was grant ed, in which the plaintiff recovered. See also Miller v. Race, Burr. 452. |