1822. DOWNES RICHARDSON. dated March the 6th. Immediately after the 9th March, Sims delivered the bill to Rains, and the latter delivered it against to Becher. The bill was delivered on the 10th of April, by a clerk of Becher's, to one Howell, in payment for goods sold and delivered by him to Becher. At that time it bore date, March the 16th. It was afterwards received by the plaintiff from Howell bonâ fide, and for a valuable consideration. Lachlan never gave any authority for the alteration, which was not in the hand-writing of Sims. On the 13th April, a note was sent by Sims to Thompson, stating the periods when several bills received from him on the month of March would become due, and, among others, that the 1000l. in question would become due on the 19th of September. Rains and Becher left this country for America in the month of April, and have not since returned; and about two or three days after Rains left England, and before the bill became due, Thompson called upon Howell, who then continued the holder of it, to answer some enquiries which had been made respecting it. Howell's clerk asked him if it would be paid, and he said, that it would. The jury found the following facts specifically upon questions submitted to them by the Lord Chief Justice: That the date of the bill had been altered after it had been drawn, accepted, and indorsed by Rains, Thompson, and Lachlan ; that the alteration was without the consent or knowledge of Lachlan; that the alteration was without the previous assent of Thompson; that Thompson being informed of the alteration, afterwards assented to it while the bill remained in Howell's hands. The case was now argued by Tindal, for the plaintiff. The bill, before it was issued to Howell, a bonâ fide holder, was not a valid security; security; and, therefore, any alteration before that time does not avoid it. It is clear, that an accommodationbill may be altered before it is negotiated. In Bowman v. Nichol (a), it must be taken from the statement, that the bill was given for value; and if so, the alteration was made after it had been accepted and delivered to the drawer, and when it was therefore an available security. In Cardwell v. Martin (b), the respective bills were considered to be issued as soon as the exchange of the acceptances had taken place. So, too, in Bathe v. Taylor (c), the bill was accepted for a debt which the acceptor owed to the drawer, and was, therefore, a valid security. So, in Walton v. Hastings (d), the bill was accepted on account of a bonâ fide debt, due from the drawer, and Lord Ellenborough expressly states, that it was an existing valid instrument before the alteration. Now, here, as between Lachlan, Rains, and Thompson, this was a mere accommodation-bill. No action was maintainable upon it until it passed into the hands of Howell, and before that time the alteration had taken place. Campbell, contrà. 1st, At common law no action could have been maintained by Downes against Thompson upon this bill. 2dly, If it was an accommodation-bill, it required a new stamp. 3dly, This was not an accommodation-bill. 4thly, It was not altered until after it had been negotiated. As to the first point, no action could be maintained at common law by the plaintiff, as indorsee, against the defendant, as acceptor of this bill. It was originally dated the 6th March, and was altered, without the consent of Rains, the first indorser, or of (a) 5 T. R. 537. (c) 15 East, 412. Y y 3 (b) 9 East, 190. Lachlan, 1822. DOWNES against RICHARDSON. 1822. DOWNES against RICHARDSON. Lachlan, the second indorser. Now, in an action by Downes, it would have been necessary to state in the declaration, that Rains, the payee of the bill, had indorsed it. Rains and Lachlan indorsed the bill while it bore date the 6th March, and, therefore, they never indorsed a bill bearing date the 16th March; and, consequently, the allegation in the declaration, that they indorsed a bill dated the 16th March, would not be supported. 2dly, But even if this were an accommodation-bill, as between Rains, Thompson, and Lachlan, still, as it once existed as a perfect instrument, according to the intention of all the parties, it became, by the alteration, a new bill, and required a fresh stamp. It is true, that, in Kershaw v. Cox (a), it was held, that where a bill, by mistake, was originally made payable to the defendant or his order, it might be altered without a fresh stamp. But, here, there was no mistake: the instrument was perfect, according to the original intention of the parties. In Calvert v. Roberts (b) it was expressly held, that an accommodation-bill, payable to the drawer's order, cannot be altered after acceptance and before it is actually negotiated. 3dly, This was not an accommodation-bill; It was a bill accepted by Thompson in the usual course of dealing between the parties; and it is stated as a fact, that the bills were chiefly for the accommodation of Rains, but not solely; Lachlan and Thompson had some accommodation from them. Then, if they derived any benefit from the bills, the quantity of benefit is immaterial; and it must be taken, from the facts stated in the case, that this bill was accepted by Thompson in return for some other bills which Lachlan had (a) 3 Esp. 246. (b) 3 Camp. 543. accepted; accepted; and, if so, then this must be considered as the case of an exchange of acceptances, and it falls within the principle of the case of Caldwell v. Mar tin. (a) 4thly, At all events it had been negotiated before it was altered. Thompson did not give his assent to the alteration till the bill was in the hands of Howell, a bonâ fide holder for value. The legal effect, therefore, is the same as if Thompson had then, with his own hand, altered the date from the 6th to the 16th; in which case the bill would unquestionably have been void. ABBOTT C. J. I am of opinion that the plaintiff is entitled to recover. If we were to yield to the objection on the part of the defendant, we should open a door to great fraud. At common law it is clear that this would be a valid instrument, as against the acceptor, having been altered by his consent; but the difficulty arises from the act of parliament, which requires that every bill of exchange shall have a stamp. The question then is, whether this alteration made it a new bill? Now, undoubtedly, when an accommodation bill has the names of the different parties written upon it, it is, in some sense of the word, a bill of exchange; but it is utterly unavailable as a security for money, until it is issued to some real holder for a valuable consideration. But it is said that this was not an accommodation bill. Now it appears there were three persons concerned together, and acting different parts in these bill transactions; one of them drew, another indorsed, and a third accepted these accommodation bills; and it appears that Sims, a clerk, was principally entrusted with the possession of this paper for the benefit of all. This, 1822. DOWNES against RICHARDSON. 1822. DOWNES against RICHARDSON. therefore, is nothing like the exchange of paper, in Cardwell v. Martin, referred to in argument. It seems to me, therefore, on the facts of this case, that this was an accommodation bill, in the strictest sense of the word, and that the original parties to it had no right of action inter se. This being the nature of the instrument, it follows that till it was negotiated it was an unavailable instrument; and that it first became a bill of exchange when it was issued to Howell for a valuable consideration. At that time, however, it had been altered, and on the 13th of April it appears, that, in a letter from Sims to Thompson, the latter was informed of such alteration having been made. Under these circumstances, and with this knowledge, Thompson is asked by Howell's clerk (the bill then being in Howell's hands) whether the bill would be paid; and Thompson then stated that it would be paid, thereby assenting to the alteration that had been made. I am, therefore, of opinion that, as against him, it is a valid instrument, and that he cannot now object to the alteration. For these reasons it seems to me that the plaintiff is entitled to the judgment of the Court. BAYLEY J. I am of the same opinion. The alteration of an instrument vacates it, but that must be taken with this qualification, that the alteration is without the consent of the party to be bound. But here, Thompson has assented to the alteration, and, therefore, he cannot object to it on this ground. Then the question arises as to the provisions of the stamp-act. Now if an alteration be made before a bill is issued, a fresh stamp is not necessary. Then when is a bill issued? I am of opinion that it is issued as soon as there is some person who can make a valid claim upon it; but |