and not absolutely, according to the tenor of it, the holder may accept it, and it will be a good acceptance, pro tanto, or he may insist upon an absolute acceptance, and for the want of it protest the bill. It is in the discretion of the holder whether or no he will take any acceptance varying from the terms of the bill. This doctrine was settled in England upwards of a century ago, and in opposition to the distinguished argument of Sir John Strange, and it has continued unshaken to this day."

The acceptor of a bill is the principal debtor, and the drawer the surety, and nothing will discharge the acceptor but payment or a release. He is bound, though he accepted without consideration, and for the sole accommodation of the drawer. Accommodation paper is now governed by the same rules as other paper. This is the latest and the best doctrine, both in England and in this country. These are the strict obligations of the acceptor in relation to the other parties to the bill, and they do not apply in all their extent as between the drawer and the party who endorses or lends his name to the bill as surety for the accommodation of the drawer. In such a case the party who endorses is not entitled to damages from the drawer beyond what he has actually sustained. If the acceptor alters the bill on acceptance, he vacates it as against the drawer and endorsers; but if the holder acquiesces in such alteration and acceptance, it is a good bill as between the holder and acceptor.

A third person, after protest for non-acceptance by the

a Wegerslofe v. Keene, 1 Str. Rep. 214. Smith v. Abbott, 2 Str. Rep. 1152.

b Fentum v. Pocock, 5 Taunton, 192. The Governor and Company of the Bank of Ireland v. Beresford, 6 Dow's Parl. Cas. 234. Bank of Montgomery County v. Walker, 9 Serg. & Rawle, 229. Murray v. Judah, 6 Cowen, 484. Clopper v. The Union Bank of Maryland, 7 Harr. & Johns. 92. Church v. Barlow, 9 Pickering, 547.

c Dorsey v. Creditors, 19 Martin's Louis. Rep. 498. d Paton v. Winter, 1 Taunton, 420.

drawee, may intervene, and become a party to the bill, in a collateral way, by accepting and paying the bill for the honour of the drawer, or of a particular endorser. His acceptance is termed an acceptance supra protest, and he subjects himself to the same obligations as if the bill had been directed to him. He has his remedy against the person for whose honour he accepted, and against all the parties who stand prior to that person. If he takes up the bill for the honour of the endorser, he stands in the light of an endorsee paying full value for the bill, and has the same remedies to which an endorsee would be entitled against all prior parties, and he can, of course, sue the drawer and endorser." The acceptance, supra protest, is good, though it be done at the request, and under the guaranty of the drawee after his refusal, and the party for whose honour it is paid is equally liable. The policy of the rule granting these privileges to the acceptor, supra protest, is to induce the friends of the drawer or endorser to render them this service, for the benefit of commerce and the credit of the trader, and a third person interposes only. when the drawee will not accept. There can be no other acceptor after a general acceptance by the drawee. A third person may become liable on his collateral undertaking, as guarantying the credit of the drawee, but he will not be liable in the character of acceptor. It is said, however, that when the bill has been accepted, supra protest, for the honour of one party to the bill, it may, by another individual, be accepted, supra protest, for the honour of another. The holder is not bound to take an acceptance, supra protest; but he would be bound to accept an offer to pay, supra pro

a Mulford v. Walcott, 1 Lord Raym. 574.

Mertens v. Winning

ton, 1 Esp. N. P. Rep. 112. Bayley on Bills, 209.

b Konig v. Bayard, 1 Peters' U. S. Rep. 250.

c Beawes, tit. Bills of Exchange, pl. 42. Jackson v. Hudson, 2 Campb. 447.

d Mitford v. Walcot, 12 Mod. Rep. 410.

test. The protest is necessary, and should precede the collateral acceptance or payment; and if the bill, on its face, directs a resort to a third person, in case of refusal by the drawee, such direction becomes part of the contract.

As between the holder of a check and the endorser, it ought to be presented for acceptance with due diligence; but as between the holder and the drawer, a demand at any time before suit brought will be sufficient, unless it appears that the drawee has failed, or the drawer has, in some other manner, sustained injury by the delay. The drawee ought to accept or refuse acceptance, as soon as he has had a reasonable opportunity to inform his judgment. If he cannot be found at the proper place, the holder may cause the bill to be protested; and if the drawee be dead, the bill may be presented to his executor or administrator."

(5.) Of the endorsement.

A valid transfer may be made by the payee, or his agent. In the case of a bill made or endorsed to a feme sole, who afterwards marries, the right to endorse it belongs to the husband. So, the assignee of an insolvent payee, or the executor or administrator of a deceased payee, are entitled to endorse the paper. And if a bill be made payable to a mer

a Pothier, h. t. pl. 170.

b Pothier, h. t. pl. 137. Holland v. Pierce, 14 Martin's Louis. Rep. 499. An acceptance for honour is not an absolute, but a conditional acceptance, and an averment of presentment to the drawee for payment is necessary. Williams v. Germaine, 7 Barnw. & Cress. 468.

c Rickford v. Ridge, 2 Campb. 537. Beeching v. Gower, 1 Holt, 313. note of the Reporter. Clark v. Stackhouse, 2 Martin's Louis. Rep. 327.

d Cruger v. Armstrong, 3 Johns. Cas. 5. Conroy v. Warren, ibid. 259. Rothschild v. Corney, 9 Barnw. & Cress. 388.

Martin, cited in 3

e Molloy, b. 2. c. 10. sec. 34. Bayley on Bills, 128. ƒ Parker, Ch. J., in 1 P. Wms. 255. Conner v. Wils. Rep. 5. Rawlinson v. Stone, 3 Wils. Rep. 1.

cantile house consisting of several partners, an endorsement by any one of the partners is deemed the act of the firm. If the bill be made payable to A., for the use of B., the legal title is in A., and he must endorse it.

The bill cannot be endorsed for a part only of its contents, unless the residue has been extinguished; for a personal contract cannot be apportioned, and the acceptor made liable to separate actions by different persons.

Blank endorsements are common, and they may be filled up at any time by the holder, even down to the moment of trial in a suit to be brought by him as endorsee; but no other use can be made of a blank endorsement in filling it up, than to point out the person to whom the bill or note is to be paid. A note endorsed in blank is like one payable to bearer, and passes by delivery, and the holder may constitute himself, or any other person, assignee of the bill. The courts never inquire whether he sues for himself, or as trustee for some other person." Even a bond made payable to bearer, has been held to pass by delivery, in the same manner as a bank note payable to bearer, or a bill of exchange endorsed in blank. The holder may strike out the endorsement to him, though full, and all prior endorsements in blank except the first, and charge the payee, or maker.c There is no necessity for any negotiable words in the endorsement. A bill originally negotiable, continues so in the hands of the endorsee, unless the general negotiability be restrained by a special endorse

a Peacock v. Rhodes, Doug. Rep. 633. Francis v. Mott, cited in Doug. Rep. 634. Bull. N. P. 275. Livingston v. Clinton, and Cooper v. Kerr, cited in 3 Johns. Cas. 264. Lovell v. Evertson, 11 Johns. Rep. 52. Duncan, J., in 13 Serg. & Rawle, 315. Kiersted v. Rogers & Garland, 6 Harr. & Johns. 282. In Sprigg v. Cuny's Heirs, 19 Martin's Louis. Rep. 253. it was held that the holder of a negotiable note, endorsed in blank, might sue on it, without filling it up to himself.

b Gorgier v. Mieville, 3 Barnw. & Cress. 45.

c Smith v. Clarke, Peakes' N. P. Rep. 225. United States v. Barker, 1 Paine's Rep. 156.

ment by the payee. He may stop its negotiability by a special endorsement, but no subsequent endorsee can restrain the negotiable quality of the bill." The first endorser is liable

to every subsequent bona fide holder, even though the bill or note be forged, or fraudulently circulated.' If a blank note or check be endorsed, it will bind the endorser to any sum, or time of payment, which the person to whom he intrusts the paper chooses to insert in it." This only applies to the case in which the body of the instrument is left blank. If negotiable paper, regularly filled up, be endorsed in blank, the endorser is holden only in the character of endorser, and according to the terms and legal operation of the instrument."

In the case of blank endorsements, possession is evidence of title; but if the endorsements be all filled up, the first endorsee cannot sue without showing that he had taken up the bill or note. The acceptor or maker is liable only to the last endorsee. The prior endorsers have parted with their interest in the paper, and are presumed to have received a valuable consideration for it. But if the last endorsee protests the bill for non-payment, and it be paid by a prior endorser, the

a Edie v. East India Company, 2 Burr. Rep. 1216. Ancher v. The Bank of England, Doug. Rep. 637. Smith v. Clarke, 1 Esp. Rep.

180.

b Lambert v. Pack, 1 Salk. Rep. 127.

Putnam v. Sullivan, 4 Mass.

Rep. 45. Codwise v. Gleason, 3 Day's Rep. 12.

e Russel v. Langstaffe, Doug. Rep. 514. Violett v. Patton, 5 Craneh,

142.

d See Jackson v. Richards, 2 Caines' Rep. 343. In Beckwith v. Angell, 6 Conn. Rep. 315. it was held, that if a promissory note be endorsed in blank, under a parol promise to guaranty the payment, the holder may fill up the blank pursuant to the special agreement, and prove that agreement by parol. The endorser will be liable, under such circumstances, without proof of the demand and notice requisite in other cases. There have been decisions to the same effect in Josselyn v. Ames, 3 Mass. Rep. 274. Ulen v. Kittredge, 7 ibid. 233. Bird, 11 ibid. 436. Nelson v. Duboys, 13 Johnson, 175. Butler, 14 ibid. 349.

Moies v.

Campbell v.