not bind the acceptor except in favour of a person to whom such acceptance shall have been shewn, and who, on the faith thereof, shall have received the bill for a valuable consideration," 7; and that "an unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favour of every person who, upon the faith thereof, shall have received the bill for a valuable consideration," 8. These sections do not impair the right of any person to whom a promise to accept a bill may have been made, and who on the faith of such promise shall have drawn or negotiated the bill, to recover damages of the party making such promise on his refusal to accept such bill. § 10.

The English courts having held in respect to an existing bill, that a promise to accept would not amount to an acceptance unless the promise was in terms not admitting of any doubt, Rees v. Warwick, 2 Barn. & Ald. 113, the supreme court of Louisiana distinguished a promise to accept, contemplating a specific bill or bills, from a promise not thus specific; and declared that a general authority to draw to a certain amount without any description by which the bills drawn can be identified, cannot be construed into such an acceptance of the future bills drawn under it, so as to authorize suit against the drawee by third persons. Carrolton Bank v. Tayleur &c. 16 Louis. 498. To supply the place of a written acceptance on a bill, the promise to accept, it considered, must describe the bill in such a way that the promise can apply to no other bill. A letter of credit giving authority to draw for an amount not exceeding $1500, (the drafts to be drawn at not less than 100 days after date,) it held would not authorize suit on it as an acceptance of any particular bills. Von Phul &c. v. Sloan

&c. 2 Rob. 148.

In the last case adjudged by Mr. Justice Story on the subject, he lamented that the doctrine of a virtual acceptance of a non-existing bill ever was established by the supreme court of the United States, and said if the question had been entirely new he was well satisfied that it would not have been recognized as fit to be promulgated by that court, it being at once unsound in policy and full of inconvenience. But the supreme court yielded, as he did, to what seemed at that time the result of the English authorities. Wildes &c. v. Savage, 1 Story's Rep. 27. The doctrine, he observes, never was applicable or could be applied to any bills of exchange, except such as were payable on demand or at a fixed time after date. Where bills are drawn payable at so many days after sight it is impracticable to apply the doctrine; for there remains a future act to be done, the presentment and sight of the bill before

the period for which it is to run, and at which it is to become payable, can commence. S. C. 28; Howland &c. v. Carson &c. 3 Harris 453.

Meanwhile, in England, the opinion expressed by Lord Kenyon in Johnson &c. v. Collings, that a promise to accept a non-existing bill will not amount to an acceptance, even though the bill be taken on the faith of it, has been generally acquiesced in. And the doctrine, as Parke, B. observes, is reasonable, simple and convenient. For reason points out, that in order to constitute an acceptance there ought to be a bill in existence which could be accepted; and to hold that the same act would be an acceptance or not according to the subsequent contingency of the holder of the bill having notice of it, would introduce a strange anomaly and confusion into the relation of the parties to the bill, the drawee being an acceptor as to some and not as to other endorsees. Bank of Ireland v. Archer, 11 M. & W. 389.

No subsequent case in England appears to have cast any doubt upon the propriety of what Lord Kenyon said except a report of Miln v. Prist &c. in 1 Holt's N. P. Rep. 181, 3 Eng. Com. Law Rep. 67, which, Parke, B. remarks, is evidently inaccurate. The decision of that case, according to the report in 4 Camp. 393, he considers to amount merely to this, that the authority of Johnson &c. v. Collings was directly in point, there being no evidence of any communication to the plaintiff of the promise to accept. This is the view of the court of exchequer, whose judgment Parke, B. delivered. That judgment establishes that a parol promise to accept a foreign bill before it was drawn does not amount to an acceptance; notwithstanding such promise was communicated to the endorsees and the bill taken by them on the faith of it.

In Virginia, and other states which have not yet sanctioned the rule of Coolidge &c. v. Payson, we may reasonably anticipate that the rule of the Bank of Ireland v. Archer will be preferred to that of Coolidge &c. v. Payson.

CHAPTER XIX.

ACCEPTANCE ADMITS HAND-WRITING OF DRAWER AND RIGHT OF PAYEE TO ENDORSE. UNDER WHAT CIRCUMSTANCES ACCEPTOR IS PRECLUDED FROM DENYING PAYEE'S ENDORSEMENT.

1. Acceptance binds drawee to a holder for value, though drawer's signature be a forgery.

In a regular bill transaction, the drawing is a mode by which the drawer pays a sum of money to his payee or endorsee through an acceptor. 1 Bos. & Pul. 654. When the drawee has accepted, he is the original debtor. 2 Burr. 674.

He should not accept unless he knows the hand-writing of the drawer or has used due caution to ascertain it; for his acceptance binds him to a holder for value without notice, though the signature of the drawer's name should prove to be a forgery. There is, indeed, one case in Lord Raymond's time in which, while of opinion that in an action against the acceptor it was not necessary to prove the hand-writing of the drawer, otherwise than by proving the acceptance-which was an acknowledgment by the acceptor, who was supposed to know the hand of his correspondent-he seemed to think that it would not be conclusive against him if he could shew the contrary. Wilkinson v. Lutwidge, 1 Str. 648. But in another case, in which the defendant offered to prove the instrumeut a forged bill by calling persons acquainted with the drawer's hand to swear that they did not believe it to be his, the chief justice would not admit this from the danger to negotiable paper, and because a man might with design write contrary to his usual method; his impression, then, was that even actual proof of forgery would not excuse the defendants against their own acceptance, which had given the bill a credit to the endorsee. Jenyns v. Fowler &c. 2 Str. 946. Nor is there anything at all inconsistent with this in another case in Strange, to which Tindal, C. J., in 4 Man. & Grang. 220, refers; for the case referred to was not an action against the acceptor but the endorser, and the question was not as to the hand-writing of the drawer but of the defendant himself. Cooper v. Le Blanc, 2 Str. 1051.

It may be considered to be well established that an acceptor cannot set up a want of identity as to the party by whom the bill professes to have been drawn. After accepting and thereby giving an apparent validity to a bill he has not a right in an

action against him as acceptor, to set up as a defence that the name of the drawer was forged. Sanderson v. Collman, 4 Man. & Grang. 220, 43 Eng. Com. Law Rep. 120; Leach v. Buchanan, 4 Esp. 226.

2. Drawee who pays bill, where drawer's signature is forged, cannot recover the money back; how far this rule is modified.

If the drawee pays a bill which proves to be a forgery as to the drawer's signature, he cannot, on the ground of the payment being by mistake, recover back the money from an endorsee who is an innocent and bona fide holder. Price v. Neal, 3 Burr. 1354, 1 W. Bl. 390; Smith &c. v. Mercer &c. 6 Taunt. 76, 1 Eng. Com. Law Rep. 312; 10 Wheat. 350.

The court of appeals of New York considers that the reason of this rule does not apply to a case where the forgery is not in counterfeiting the name of the drawer but in altering the body of the bill-that however reasonable it may be to presume that the drawee is acquainted with the drawer's signature, or able to ascertain whether it is genuine, it is not reasonable to require him to know the hand-writing of the residue of the bill. Bank of Commerce v. Union Bank, 3 Comstock 235. In this case the forgery was committed by altering the date, number, amount and payee's name; the amount being made much larger than the bill was in truth drawn for. The jury, however, found that the payment was by mistake, and without knowledge of, or reason to suspect the fraudulent alterations; the drawee recovered back from the party whom he had paid by mistake.

A more questionable decision has been made by the same court in distinguishing between a payment by drawees and a payment by parties who intervened for the honour of the drawers. The court admits that the rule of Price v. Neal would have applied to them as well as the drawees had they seen the bill before they parted with their money; it rests its decision on the ground that they had not seen it before making the payment, and had no opportunity of judging whether the bill was in the hand-writing of the drawers or not. Goddard v. Merchants Bank, 4 Comstock 149.

If the drawee after accepting or paying a bill, and thereby giving an apparent validity to it, would not have a right to set up that the name of the drawer was forged-if the allegation that he had been so improvident as to accept or pay the bill without seeing it would not avail him-it is not easy to see how one who comes forward and either accepts or pays

instead of the drawee, can stand on better or higher ground. It is a question which deserves at least a careful consideration before the rule should be so established.

3. Acceptor or maker of instrument payable to another's order, cannot deny his authority to endorse.

When a bill is made payable to an infant, who is both drawer and endorser, the fact of such infancy, though it might be a defence in an action against the drawer, will not be enquired into in an action against the acceptor. Taylor v. Croker, 4 Esp. 187. It is, says Bayley, J., a general principle applicable to all negotiable securities, that a person shall not dispute the power of another to endorse such an instrument when he asserts by the instrument which he issues to the world that the other has such power. Drayton v. Dale, 2 Barn. & Cress. 293, 9 Eng. Com. Law Rep. 94. Here it was considered no valid objection that the endorsement was made by Clarke-a bankrupt without the previous consent of the assignees the assignees not having made any claim, the defendant who asserted to all those who should see the bill that Clarke had authority to endorse, was estopped from setting up their rights. A similar plea was overruled in Pitt v. Chappelon, 8 M. & W. 616.

The law is then settled that the acceptor of a bill, or maker of a note, payable to the order of another, having thereby acknowledged the right of that other to endorse, cannot afterwards deny that right. Sanderson v. Collman, 4 Man. & Gr. 220, 43 Eng. Com. Law Rep. 120; Halifax v. Lyle, 3 W. H. & G. 452; Fogg v. Wollcutt, 1 Cush. 300.

4. Difference between handwriting of drawer and payee. If payee's name be forged, acceptor generally either not liable to pay endorsee, or if he has paid entitled to recover back.

Though the acceptor admits that the bill was drawn by the parties by whom it purports to be drawn, he does not generally by his acceptance admit the handwriting of the payee, or of any subsequent endorser. Smith v. Chester, 1 T. R. 654; Robinson v. Yarson, 7 Taunt. 455, 2 Eng. Com. Law Rep. 175; Dana v. Underwood, 19 Pick. 199.

The general rule is, that the holder is bound to know that the previous endorsements, including that of the payee, are in the handwriting of the parties whose names appear upon the bill, or were duly authorized by them. And if it should appear that one of them is forged, he cannot recover against the