The first point taken on the appeal, by the counsel of the defendants, was not presented in due time, at the trial. He should have moved for a dismissal of the complaint on this ground, and thus have given the plaintiff an opportunity to supply the defect. Besides, it is not denied that the plaintiffs are a banking corporation; and the referee finds that the draft was transferred to them in due course of business, and was received by them in good faith, and in payment of a full and valuable consideration. The referee also finds that the same was shortly afterwards, and before it became due, accepted by the defendants. So that the only question remaining, is whether persons who accept a bill of exchange or draft after it is received by the holders, for a full and valuable consideration, are not liable, on the ground that it was not actually accepted by them at the time it was transferred to the holders. But although it was not *635actually accepted by them at the time of the transfer, it was addressed to them. This address formed an essential and constituent part of the bill; the plaintiffs in receiving it had every reason to presume that the defendants had authorized the drawer to draw upon them; and their subsequent acceptance fully justified this presumption. The consideration of the acceptance, then, should not be deemed a past or executed one; but the acceptance should be deemed to relate back to the transfer of the draft to the plaintiffs, who may fairly be considered as receiving it on the faith of the defendants’ credit, as well as upon that of the other parties to the instrument.
[N. Y. General Term, September 16, 1861.Many bills of exchange and drafts are discounted before they are transmitted for acceptance by the parties to whom they are addressed; and it would be opposed alike to the interests of commerce and the dictates of justice to hold that they are not liable after the action of the drawer in making the draft is ratified by the act of acceptance.
The judgment should be affirmed with costs.
Leonard, J.It must be intended that the defendants authorized W. E. Culver to draw this bill of exchange on them, before the plaintiffs discounted it, and that the plaintiffs advanced their money on the faith of such authority. The acceptance of the bill by the defendants authorizes the intendment. (Commercial Bank of Lake Erie v. Norton, 1 Hill, 508, 509.)
The judgment should be affirmed.
Barnard, J. concurred.
Judgment affirmed.
Clerke, Leonard and Barnard, Justices.]