Arpin v. Owens

W. Allen, J. This was an action by the payee of a foreign bill of exchange against the acceptor. The bill was dated February 23, 1884, payable in thirty days after date, and was accepted on March 1. There was evidence that the plaintiff took the bill from the drawer on the day of its date, for value, in the regular course of business. The court ruled that the burden was on the plaintiff to prove that the defendant had received a consideration for the draft; and that, if the jury should find that he received no consideration, they should find for the defendant. There was evidence of want of consideration between the drawer and the defendant, and evidence bearing upon other grounds of defence, which is not material, as the ruling presented but one question for the jury. For the purposes of the ruling, the plaintiff must be taken to be a bona fide purchaser of the bill for value, and without notice of want of consideration; and the question presented is, whether, in an action by the payee of a bill, who took it before acceptance, against the acceptor, want of consideration between the drawer and acceptor is a defence; in other words, whether, in such an action, the rule to be applied as to want of consideration, as a defence, is that which obtains between the maker and payee of a note, or that between the maker and indorsee. The rule is stated thus in [145] Byles on Bills, (6th Am. ed.) 206: “Between immediate parties, — that is, between the drawer and acceptor, between the payee and drawer, between the payee and maker of a note, between the indorsee and indorser, the only consideration is that which moved from the plaintiff to the defendant, and the absence or failure of this is a good defence to an action..... But, between remote parties, — for example, between payee and acceptor, between indorsee and acceptor, between indorsee and remote indorser, two distinct considerations, at least, must come in question: first, that which the defendant received for his liability ; and, secondly, that which the plaintiff gave for his title. An action between remote parties will not fail unless there be absence or failure of both these considerations.” The payee of an accepted bill holds the same relation to the acceptor that an indorsee of a note holds to the maker. There is a very close resemblance between an accepted bill and an indorsed note. The indorsed note is evidence of a debt originally due from the maker to the payee, and assigned and made due to the indorsee; -the bill is evidence of a debt originally due from the drawee to the drawer, assigned and made due to the payee; and the rule that the title of the assignee cannot be impeached by showing want of consideration for the original debt is applicable equally to the indorsee of a note and to the payee and to the indorsee of an accepted bill. The reason, applicable alike to payee and indorsee, is tersely stated by Mr. Justice Vaughan, in Low v. Chifney, 1 Bing. N. C. 267: “ How was he to know what had passed between the drawer and acceptor?” See Davis v. Randall, 115 Mass. 547. It is contended by the defendant, that the rule does not apply to the case at bar, because the acceptance was after the bill was purchased by the payee; and that therefore it was not taken by him on the faith of the acceptance. There is no ground for this distinction. It is immaterial when an acceptance is made; it may be made at any time, and the rights of the payee and of indorsees are the same after it is made, whether they were acquired in anticipation of it, or subsequent to it. It is held in this State, that, upon the question whether a promise to accept made by the drawee to the drawer is an acceptance as to other parties, the knowledge of the promise, and presumed reliance upon it in becoming parties, is [146] material. Exchange Bank v. Rice, 98 Mass. 288. But where, as in the case at bar, there is an acceptance upon the bill, it makes no difference in the rights of payees or indorsees whethei they become such before or after the acceptance. See Grant v. Hunt, 1 C. B. 44; Wynne v. Raikes, 5 East, 514. Powell v. Monnier, 1 Atk. 611. E. H. Beer, for the plaintiff. S. P. Thayer, for the defendant. The instrument is negotiable before acceptance, and the acceptance is an acknowledgment of the debt it represents, and an absolute promise to pay it to the person who is, or shall become, the holder of the bill; and to allow a want of consideration for the acceptance to defeat the right of a bona fide holder, whether he became such before or after the acceptance, would be contrary to the nature and purpose of bills of exchange, and to the uniform usage in regard to them. Exceptions sustained