1816.

WALTON against HASTINGS.

BAYLEY J. At all events, the bill in its original shape was binding on the drawer.

ABBOTT J. It was binding on the drawer; and if so, you would make it binding on one party, and not on the other.

Espinasse. It would make no difference to the revenue, for the commissioners would allow the stamp.

LORD ELLENBOROUGH C. J. That can make no difference as to the validity of the bill.

Rule refused.

1815.

26th Jan.

date after ac

ceptance, but before it was

JOHNSON against GARNETT.

Bill altered in PARKE, for the defendant, moved to enter a nonsuit in an action on a bill of exchange which had been altered after drawn and accepted, in the date, from 8th to 28th June,

put into indorsee's hands, held good.

LE BLANC J. Was it altered upon a subsequent reason and for a subsequent purpose?

Parke. It was. At the trial I cited Calvert v. Roberts, 3 Camp. 343; and Mr. Scarlett cited Peyton v. Winter, 1 Taunt. 420.

ELLENBOROUGH C. J. I left it to the jury, whether upon the evidence they did not think that the acceptor was the creature of defendant, and defendant altered it as agent of acceptor; and jury so found.

Parke. My objection proceeds on the stamp laws; and even Garnett himself, if acceptor, though he might alter it before acceptance, yet could not alter it

after, and Garnett, as Gibb's agent, could not do more than Gibb himself; and Gibb as acceptor could not, after acceptance, alter it.

LE BLANC J. You mean to say, that the acceptor may alter the bill before acceptance, but cannot after.

ELLENBOROUGH C. J. The bill had not been handed over to Johnson before alteration, had not been in his hands. Defendant asked Johnson's leave to alter the bill. I left it to the jury as a thing in fieri. The acceptor gave, according to the finding of the jury, authority to drawer to alter it as he liked, and at that time it was not negotiated.

BAYLEY J. It never got into Johnson's hands, before it was altered.

LE BLANC J. Whilst the parties were all together, and before bill completed, they agreed it should be altered from 8th to 28th.

ELLENBOROUGH C. J. The act still was to be

done.

1820.

JOHNSON

against GARNETT.

TOP

JOHNSON against GIBB.

Rule refused.

1815.

Easter Term.

OPPING moved for a new trial. Plaintiff nonsuited action against acceptor by indorsee, drawn by Garnett upon Gibb, 28th June, 1814, sixty days after date; brother of Johnson had claim on Garnett, for which Garnett gave this bill, carried to Gibb for acceptance; after accepted, altered from 8th June to

Though bill altered by

drawer after

with consent of the plaintiff the without the ac

acceptance

payee, but

tual assent of the acceptor;

28th, without knowledge of Gibb; Johnson present and which al

teration made

the bill payable 20 days later; yet, semble, the acceptor is liable, where it appears to be an accommodation-bill, and acceptor would accept any bill drawn by the drawer, and therefore strong presumptive evidence that the drawer was sufficiently the agent of the acceptor to have authority to make this alteration.

1815.

JOHNSON against GIBB.

1814.

27th Jan.

A witness on the trial of a

cause may refresh his memory from a document, though not written by him

when altered; difference of interest paid by Garnett. It was an accommodation bill; and contended, that Garnett's action, and some evidence that Gibb indemnified by Garnett, but disproved.

ELLENBOROUGH C. J. I left it to the jury to find for defendant, unless they thought that there was a general authority from Gibb to Garnett to draw upon him, and that Gibb would accept any bill.

Rule nisi for new trial, on payment of costs.

On 31st May, 1815, the rule was made absolute.

HENRY against LEE.

TOPPING moved, on behalf of the defendant, for a rule to shew cause why a new trial should not be had, under the following circumstances. The plaintiff was a jeweller at Liverpool, and the indorsee of a bill of exchange, drawn and indorsed by the defendant, and accepted, payable at a banker's, London. The dea bill out of the fendant pleaded the general issue and bankruptcy, and

self.

Presentment of

usual hours is

sufficient, pro- a verdict was found for the plaintiff.

vided some

body be at the

place, and also

At the time of the trial, a material witness said he

sees the bill, or did not recollect a fact; but having looked at a paper gives an an

swer, otherwise which he himself had not written, he said that he disnot (a).

tinctly recollected the circumstances, though he had before said that he did not know whether he should recollect the circumstances after looking at the paper; and Topping contended, that this was neither sufficient nor the best evidence.

LORD ELLENBOROUGH C. J. It is sufficient if a man can positively swear that he recollected the fact,

(a) See Garnett v. Woodcock, 1 Stark. 475; Chitty on Bills, 277, 6th ed. S. P.

though he had totally forgotten the circumstance before he came into Court; and if upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference, that the memorandum was written by himself, for it is not the memorandum that is the evidence, but the recollection of the witness.

Topping now made another ground of objection, namely, that the bill of exchange was presented after usual hours.

LORD ELLENBOROUGH C. J. It is not in general sufficient, and it will not do if nobody is there to receive; but if somebody is there, and the person presenting the bill gets an answer, which I understand was the case here, it is sufficient.

BAYLEY J. If it is presented after the usual hours, it is at the peril of the person presenting it; for if nobody is there, it will not do; but if there is, then it is immaterial at what time it is presented.

POLE against FORD.

Rule refused.

CHITTY moved to enter satisfaction on a judgment against the drawer of a bill of exchange, or that plaintiff might be prohibited from issuing execution on such judgment. The plaintiff had proceeded on the same bill against the acceptor and drawer, and had obtained judgment against each, and sued out a fi. fa. against the acceptor, and took his goods in execution, which he afterwards abandoned, and gave time to acceptor, by receiving from him another security to to pay at a future time. He contended, that this discharged the drawer, and was a satisfaction as to the bill.

1816.

POLE against

FORD.

1817.

16th Jan.

Debt lies on a bill of exchange payable to the drawer's own

order at the

suit of the first

indorsee against such drawer.

ABBOTT J. expressed considerable doubt of this, and hesitatingly granted rule nisi. The rule was enlarged till next Term, when Scarlett shewed cause against the rule in the next Term, and the Court determined, that the withdrawing the fi. fa. against the acceptor, did not discharge the drawer, and that the rule, that giving indulgence to an acceptor without the consent of the drawer discharges such drawer, does not apply after judgment.

STRATTON against HILL.

MEREWETHER moved for a rule nisi in arrest of judgment. The declaration was in debt; the first three counts were for rent. The two next counts on bills of exchange, and the money counts. The bills were drawn by the defendant, payable to his own order, and indorsed by him to the plaintiff. He objected, that debt would not lie against the maker by the indorsee of a bill, and that there was a general verdict on all the counts. Per Lord Eldon, Bishop v. Young, 2 Bos. and Pul. 78, and the cases there cited.

Rule Nisi.

Taunton and Chitty, contra, obtained a rule nisi to amend the postea, and enter a verdict only on the first three counts, and that both rules should be brought on together.

On 27th November, Taunton and Chitty declined availing themselves for the present of their cross rule, and answered the objection raised by Merewether, contending that debt would lie by the payee against the maker of a bill of exchange, and that the plaintiff in this suit being the first indorsee of a bill payable to the maker's own order, was the same as payee';