The People v. Bowen. his disapproval and reasons, which may be prevented by the adjournment. I have shown it is only when the Governor disapproves that the return of a bill to the legislature is contemplated; when he signs a bill he does not return it; he sends it, as I have said, to the Secretary of State, who records it. The words, then, "prevent its return," do not and cannot apply to his approving and signing a bill. To recapitulate: The Constitution of the State of New York, in no part of it, expressly or impliedly, prohibits the Governor from signing bills after the adjournment of the Senate and Assembly. The words in the concluding sentence in the 9th section of article 4th, which have been supposed to import such a prohibition, apply, solely, to his disapproval of a bill in a certain event, and are designed for the protection of his right of rejection. The whole section prescribes the manner of approval and of disapproval. If he retains a bill, without signing it, for ten days during the session, his approval is to be presumed; but, if he retain it after the adjournment, without signing it, his disapproval is to be presumed, and it fails to become a law. If the terms of the section admit of no other interpretation, of which I can entertain no doubt, it seems superfluous to consider the argument of precedent, or practice of the executive, under other constitutional governments. But, it may be well to observe, that with regard to the practice of the British Government, no reason exists there why the approval or disapproval of bills by the Sovereign should be delayed after the prorogation of Parliament. The Sovereign exercises all her various powers and prerogatives in conformity with the advice of her council or cabinet, the members of which alone are individually responsible for the acts of the government. Every member of her cabinet is a member of either the House of Commons or the House of Lords. It is the duty and practice of each, vigilantly, to watch the progress of every bill through the house to which he belongs. He generally takes an active part in considering and discussing it, and, before the end of the session, is fully prepared to advise the Monarch to grant or to withhold the SMITH.-VOL. VII. 67 The People v. Bowen. royal assent. In fact the latter prerogative has never been exercised since 1692, when William the III refused his assent to the bill for triennial parliaments, which, however, he granted two years afterwards. With regard to the practice of the President of the United States and the Governors of the several States, I believe the former has always signed bills before the adjournment of Congress, and many of the latter are in the habit cf doing so after the adjournment of the legislative bodies with whom they are respectively concerned. But as far as mere custom or practice can have any bearing on the question before us, I can only say that the practice of the supreme executive of every government, in a matter of this kind, must be guided by the express or implied language of the Constitution under which he acts, or, in the absence of any such guidance, by necessity or expediency. The President of the United States is probably able, without serious inconvenience, to examine every bill before the adjournment of Congress. At all events, if this question depended upon precedent, the practice which has obtained in our own State, may surely be adduced against that of any other government, and should be considered controlling. We have seen that it has been the practice of many Governors of this State, for a considerable number of years, to sign bills after the adjournment of the legislature. With regard to the other constitutional objections presented on the demurrer, we entirely concur with the judge who decided the case at special term. The decision of the general term should be reversed with costs. COMSTOCK, Ch. J., dissented; all the other judges concurring, Judgment reversed and judgment at special term affirmed. Van Duzer v. Howe. 21 531 VAN DUZER, President of the New York Exchange Bank, 114 136 v. HOWE et al. The drawer of a bill of exchange for $1,200 paid $50 to an accommodation indorser for his indorsing, procuring another indorser, and obtaining its discount. From the proceeds, the indorser retained $150 previously loaned by him to the drawer: Held, that the draft was not affected by usury. The head-note to Steele v. Whipple (21 Wend., 103) corrected, and the case itself questioned, by DENIO, J. A party who entrusts another with his acceptance in blank is responsible to a bona fide holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. Though the filling of the blank in violation of the agreement of the parties be a forgery, the acceptor is estopped from setting up the fact. The complaint by the president of a banking association did not aver any negotiation of the bill to the bank. An amendment, supplying such averment, is properly allowed, and, if not so, is a matter of discretion not reviewable on appeal. Action on a bill of ex- APPEAL from the Supreme Court. change by indorsee against acceptor. drawn by H. L. Webb, on, and to have been accepted by, the defendants, under the name of O. B. Howe & Co.; and it was made payable to the drawer's order, and was indorsed by him and by James L. Dewey and Adon Smith. It was for $1,200, at ninety days, and was dated June 9, 1855. The defendants took issue on the drawing and accepting of the bill, and also set up the defence of usury. The facts proved at the trial were, that Webb applied to the defendants, at their place of business at Elmira, to accept for his accommodation, to enable him to raise money, saying that he wished to obtain a sum not exceeding $1,000. He had three drafts, of the same tenor with the one given in evidence, except that the amount was left blank in each. The defendant, Howe, wrote an acceptance on each, in the name of his firm, and delivered them to Webb, with directions to fill them up for sums not exceeding, in the aggre 21 531 170 3 65 Van Duzer v. Howe. gate, $1,000, to which Webb assented, and took them away. He filled up the draft sued on with the sum of $1,200, and applied to Dewey to indorse it and procure it to be discounted, agreeing to pay him $50 if he would do so. He at that time borrowed of Dewey $100, and afterwards, and before the draft was discounted, $50 more. Both Webb and Dewey, who were examined as witnesses, testified that these sums were not advanced on account of the draft, but were a borrowing by Webb of Dewey, without reference to it. Dewey indorsed the bill, and obtained Smith's indorsement, and procured it to be discounted by the plaintiff's bank; and the proceeds were placed to his own credit. After deducting the $150 loaned and the $50 which Webb was to give him for his services, he paid the balance to Webb by his check on the bank. The defendants' counsel insisted that the acceptance was a forged instrument, upon which no recovery could be had; but if this were not so, then that it was usurious in its inception, it having been, as he contended, negotiated in the first instance to the witness Dewey; and he asked to have the jury directed to find a verdict for the defendants. The judge refused to hold that the acceptance was a forgery; and, as to the allegation of usury, he instructed the jury to inquire whether the paper was negotiated in the first instance to Dewey, and said, if it was, it was usurious in the hands of the plaintiff as subsequent indorsee; but, if it was discounted in the first instance by the bank, Dewey acting as agent, and indorsing for Webb's accommodation and procuring Smith's indorsement, the exacting of $50 for doing so did not make the draft usurious. The defendants' counsel excepted, and the jury found a verdict for the plaintiff. There was another point made on the argument, the facts respecting which are sufficiently stated in the opinion of the court. The judgment was affirmed at a general term in the first district, and the defendants appealed to this court. John H. Reynolds, for the appellant. John K. Porter, for the respondent. Van Duzer v. Howe. DENIO, J. There is no pretence, on the evidence, for the allegation of usury. Both witnesses who spoke of the loan of $150 by Dewey to Webb stated that it was not made on the security of the bill; and the evidence is uncontradicted that Dewey acted in what he did as Webb's agent, and not as the purchaser or holder of the paper. It is true that, in making title to the bill, when pleadings were technical, the plaintiff would have set out an indorsement and delivery by Webb to Dewey, and by the latter to the bank, and would thus have stated, in effect, that Webb was at one time the holder, and then, inasmuch as he had $50 for his connection with its negotiation, it might be said that the bill was infected with usury. But, in inquiring at what stage of a transaction respecting a negotiable bill or note it became operative as commercial paper, successive indorsements are not necessarily regarded as separate transfers of the paper; but the inquiry is, in whose hands it first became available in a sense which would enable that party to maintain an action upon it against the prior parties. One who indorses for the accommodation of a prior party does not thereby become the holder of the bill, nor can he maintain an action upon it until he has taken it up by paying the amount to a subsequent purchaser. The fact that the plaintiff placed the proceeds of the discount to the credit of Dewey was of no materiality, after it was shown that the latter acted in procuring the discount as the agent of Webb, and not as the owner of the paper. The defendants' counsel relies upon the case of Steele v. Whipple (21 Wend., 103), as showing that, under circumstances precisely like those here disclosed, the paper would be usurious in the hands of the bank; and it must be admitted that the reporter's note favors that conclusion. But, on looking into the case, it will be seen that the note overlooks the true point decided. A note had been discounted by a bank, an indorser on which, for the accommodation of the maker, had been paid a sum of money for indorsing it; but the action was not by the bank, nor on that note. Another note had been given to the indorser, a part of the consideration of which was |