CLEGG ET ALS. vs. ALEXANDER, 6 La. 336

Mathews, J., delivered the opinion of the court. This is a suit by the acceptors of a bill of exchange against the drawer. The plaintiffs allege that it was accept-, ed without any funds or effects of the drawer in their hands and purely for his accommodation. That they paid the bill at maturity, after it had been put in circulation, and the defendant having failed to refund to them the amount thus paid for his benefit, the present suit is brought to recover it. Judgment was rendered for the defendant in the court below, from which the plaintiffs appealed.

It is a legal presumption that a bill of exchange is always accepted, on the existance of funds belonging to the drawer, in the hands of the acceptor, or that the latter is indebted to the former; consequently the acceptor cannot legally make any claim against the drawer on account of having paid the bill in an ordinary' case; There is, however; an exception to this general rule, when the acceptance has been made without funds in hand, but purely for the accommodation and benefit of the drawer.

In an action by the acceptor against the drawer, founded on a bill of this kind, to authorise a recovery, proof must be made of the hand writing of the drawer; that the bill was putin circulation after acceptance» and payment to a person authorised to demand it, &c. In an action by the acceptor, against the drawer of an accommodation bill of exchange; proof must be made of the hand writing of the drawer; that the bill was put in circulation after acceptance, and payment was made to a person authorised to demand it.

The action by the accceptor, against the endorser, cannot be sustained without proof, that the acceptance was made purely for the accommodation of the draw» The evidence in the present case, as assumed by the court below, clearly establishes the facts of drawing by the defendant, of the bill having been put in circulation, after acceptance and payment by the acceptors to a person authorised to demand it.

But the main fact, without wl^e'h the action cannot be supported, the acceptance having been made, purely for the accommodation of the drawer, seems not to have been proven to the satisfaction of the judge a quo, who tried the cause without the intervention of a jury. To establish this fact several letters from the defendant to the plaintiffs are relied on. They are three in number; the first has little bearing on the question- From the tenor of the two last it appears that the defendant was in the habit of shipping goods from England to Mexico, consigned to Brown, Blandin & Co., of the latter place.

To enable him to make those shipments, the second letter raises a presumption that. William and James Brown, of Liverpool, were in the habit of making advances of money to be refunded on the return of proceeds, &c., they, however, declined an arrangement of that nature, at the time the bill in question was drawn on the plaintiffs, and was evidently accepted to supply the deficiency occasioned by the refusal of the house in Liverpool to make the advance which the necessity of the defendant required.

According to the evidence afforded by this letter, and the last one dated in April, 1831, we fully believe that the acceptance was made for the accommodation of the drawer, and that he calculated to refund the amount thus advanced to him, by means of remittances expected from Mexico, no part of which were ever appropriated to that purpose, as is clearly shown by the last letter, which although expressed in terms-somewhat vague and indefinite, is in substance an acknow0 ledgment to the plaintiffs of the debt claimed, It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled.

And it is further ordered, adjudged and decreed, that the plaintiffs 'and appellants do recover from the defendant and appellee, the sum of two thousand six hundred and sixty-six dollars, with interest at the rate of five per cent, per annum, from the 10th of September, 1832, the day of the judicial demands until paid, with costs in both courts.