but it is said that this must not be done if the post go out in the in-3dly. Mode terim.a

If the drawee of a bill cannot be found at the place where the bill states him to reside, and it appear that he never lived there, or has absconded, the bill is to be considered as dishonoured; but if he have only removed, it is incumbent on the holder to endeavour to find out to what place he has removed, and to make the presentment there; [ 165 ] and he should in all cases make every possible inquiry after the drawee, and if it be in his power, present the bill to him; (214) though it will be unnecessary to attempt to make such a presentment, if the drawee has. left the kingdom, in which case it will be sufficient to present the bill at his house, unless he have a known agent when it should be present

(214) The holder of a check must present it for payment at the bank before he can charge the drawer. Cruger v. Armstrong, 3 John. Cas. 5. and it must be presented within a reasonable time; but if the drawer sustains no injury by the want of a demand within a reasonable time, as if he has withdrawn all his funds, he will still be liable. Conroy v. Warren, 3 John. Cas. 359. Cruger v. Armstrong. X

3dly. Mode ed to him. If on presentment, it appear that the drawee is dead, the of present-holder should inquire after his personal representative, and if he live ing for ac- within a reasonable distance, should present the bill to him. When a

ceptance.

bill is left for acceptance, and the drawee, after its remaining in his possession twenty-four hours, requires time to con-ider of it, and the holder grants him that time, it is at least advisable, if not necessary, to give immediate notice to the indorsers and drawer, of the particular circumstances.s

Sect. 2. Of

and ist, by

may inade.

ACCEPTANCE may be defined to be the act by which the drawee evinacceptance; ces his consent and intention to comply with, and to be bound by, the whom request contained in a bill of exchange directed to him, or, in other be words, it is an engagement to pay the bill when due. This engagement is made by the drawee of the bill, or by some other person, supra [166]protest, to the drawer or some of the other parties, either before the bill is drawn, or afterwards, and it may be verbal or in writing; and is either absolute, partial, or conditional, and when made after the drawing of the bill, is according to or varying from its tenor. We will consider these points in their natural order.

Ist. By When the holder of a foreign or inland bill presents it for acceptwhom to be ance, he is entitled to insist on such an acceptance by the drawee as will accepted. subject him at all events to the payment of the bill according to the

tenor of it; and consequently such drawee must have capacity to contract, and to bind himself to pay the amount of the bill, or it may be treated as dishonoured. An acceptance may, as has been already observed in a preceding chapter, be made by an agent; but in such case, it will be incumbent on the agent, if required, to produce his authority to the holder, as, if he do not, the holder may consider the bill as dishonoured, and act accordingly. And it may perhaps be doubtful, wheth er the holder is in any case bound to acquiesce in an acceptance by agent. as it multiplies the proof which he will be obliged to adduce, in case he should be compelled to bring an action on the bill."

There cannot be a series of acceptors of the same bill; it must be

sented for acceptance, dishonoured, and
protested, and then sent to Hynson's house
for payment, with notice of non-acceptance.
Hynson was not then in England, but the
bill was shown to his wife, and the circum-
stances stated to her. It was urged, 1st.
that notice should have been sent to Ja-
maica. 2dly. that the demand was not suf
ficient. But Lord Kenyon over-ruled all
the objections, and the plaintiff had a ver-
dict.

The King v. The Inhabitants of Merton,
4 M. & S. 48. affords information upon this
subject. In order to establish a settlement
by apprenticeship, it was proved, that the
indenture was only of one part, and that
upon application to the pauper, who was
then ill and soon afterwards died, to know
what had become of it, he declared, that
when the indenture was given to him he
burnt it; and it was also proved, that in-
quiry was made of the executrix of the mas

By

accepted by the drawee, or, failing him, by some one for the honour of 1st the drawer, &c.; and therefore, if a bill of exchange be accepted by the whom to be drawee, another person who, for the purpose of guaranteeing his credit, accepted. likewise accepts the bill in the usual form, is not liable as an acceptor;" and unless the consideration of his engagement be expressed on the face of the instrument, it is questionable whether he would be liable in any form of action."

The act of one partner, as has been before shown, being considered as the act of both, acceptance by one for himself and partner, or in the name of the firm, will in general be a compliance with the [167] request of the drawer; but if the bill be drawn on two, not being partners, and it be only accepted by one, it should be protested. The competency of the contracting parties in general having been already stated, it will be unnecessary here to make any observations relative to the capacity of the acceptor: it may however, be observed, that if the holder find that the drawee is an infant, feme covert, or otherwise incapable of contracting, he may treat the bill as dishonoured.

A bill, on presentment for acceptance, must be accepted by the drawee within twenty-four hours, or in default thereof, it is liable to be, and indeed, should be treated as dishonoured. This space of time we have seen is allowed the drawee to give him an opportunity of examining into the accounts between himself and the drawer; if, however, the drawee refuse to accept within the twenty-four hours, it is not incumbent on the holder to wait till the expiration of them, but he may instantly consider the bill as dishonoured."

Since the late acts the acceptance of an inland bill made after the 1st of August, 1821, must be in writing on the bill itself. The very term acceptance seems to suppose a pre-existing bill, and independently of the act alluded to, it appears to be questionable, whether in any case un acceptance can be made before the bill is drawn, and at most the engagement can only be available in favour of a party who has, on the faith of it, given credit on the bill ; for, though in Pillans v. Van Mierop, it was held, that a promise by the defendant, "to accept such bills

Jackson v. Hudson, 2 Campb. 447. This was an action on a bill drawn by the plaintiff on I. Irving, and accepted by him, and under his acceptance, the defendant wrote "accepted, Jos. Hudson," payable at, &c. The defendant was sued as acceptor. The plaintiff offered to prove that he had had dealings with Irving, and had refused to trust him further, unless the defendant would become his surety; and the defendant, in order to guarantee Irving's creit, wrote this acceptance on the bill. Lord Ellenborough said, that this was neither an acceptance by the drawee or by any person for the honour of the drawer; that the defendant's undertaking was collateral, and ought to have been declared on as such. See also Clark v. Blackstock, 1 Holt, C. N. P. 474. See observations on this point, Manning's Index, 63.

Id. ibid. Wain v. Walters, 5 East, 10. Manning's Index, 63. Sed vide Ex parte Gardom, 15 Ves. 286. Morris v. Stacey, Holt, C. N. P. 153.

2dly. At

what time it may be

made.

b

2dly. At as the plaintiff should, in about a month's time, draw upon the defenwhat timedant, upon the credit of a third person," (for whose accommodation it may be made. the plaintiff had already accepted bills,) amounted to an acceptance; yet Lord Mansfield afterwards, in the case of Pierson v. Dunlop," qualified the doctrine laid down in the above case, and observed, that "a promise "to accept such a bill, did not amount to an acceptance, unless accom"panied with circumstances which might induce a third person to take "the bill by indorsement ;" and Lord Kenyon, C. J. in Johnson v. Collings, observed, that he thought that the admitting a promise to accept, before the existence of the bill, to operate as an actual ac"ceptance of it afterwards, even with the qualification last mentioned, "was carrying the doctrine of implied acceptances to the utmost verge "of the law; and he doubted, whether it did not even go beyond the "proper boundary." And in the last case it was established, that a mere promise, by a debtor to his creditor, that if he would draw a bill upon him for the amount of his demand, he should then have the money, and would pay it, does not amount in law to an acceptance of the bills when drawn, and that an indorsee for a valuable consideration, between whom and the drawee no communication passed at the time of his taking the bill, can neither recover upon a count in the declaration upon the bill as accepted, nor on the general count for money had and received. In a more recent case at nisi prius it was decided by Gibbs, C. J., that a promise to accept a bill of exchange, in a letter written before the bill is drawn, can only be taken advantage of as an acceptance by a person to whom the letter was communicated, and who took the bill upon the credit of it. Therefore, where a person has,

Burr. 1663. White drew on the plain-
tiffs at Rotterdam for 8007, and proposed
to give them credit upon the defendants'
house in London; the plaintiffs paid
White's bill, and wrote to the defendants
to know, "whether they would accept
such bills as they (the plaintiffs) should
draw in about a month upon them for
8007., on White's credit." The defen-
dants answered that they would; but
White having failed before the month
elapsed, the defendants wrote to the
plaintiffs not to draw. The plaintiffs did,
however, draw, and on the defendants'
refusal to pay the bills, brought this ac-
tion.
The jury found a verdict for the
defendants; but, upon an application for
a new trial, as upon a verdict against
evidence, and two arguments upon it, the
court was unanimous that the defendants'
letter was a virtual acceptance of such
bills as the plaintiff should draw, to the
amount of 8007.; and the rule was made
absolute. See also Mason v. Hunt, Dougl.
297.

the ground that his promise to Ruff was virtually an acceptance. But Le Blanc, J. thought, that as it was not made to a third person, nor with circumstances which might induce a third person to take the bill, it was no acceptance, and nonsuited the plaintiff. On a rule nisi for a new trial, and cause shown, the whole court thought it no acceptance; and Ld. Kenyon thought, that the admitting a promise to accept, made before the existence of the bill, to operate as an actual acceptance of it afterwards, even though a third person was thereby induced to take the bill, was carrying the doctrine of implied acceptances to the utmost verge of the law, and he doubted, whether it did not go beyond the proper boundary. Rule discharged.

Johnson v. Collings, 1 East, 98. Clarke v. Cock, 4 East, 70. Wynne v. Ralkes, 5 East, 514. S. P.

d Milne v. Prest, 4 Campb. 393. 1 Holt, C. N. P. 181. It was insisted that the following letter, written by the defendant before the bill was drawn, amounted to an acceptance :-"We acquit you of buying wheat instead of oats; we will however accept the bills for the wheat when we receive notice of its being shipped." The case of Johnson v. Collings was cited, for the defendant, to show that a promise to accept a bill not in existence, was not binding. Per Gibbs, C. J. You are within that case, unless they show that the letter was communicated to the plain

for a sufficient consideration, engaged in writing or in some cases even 2dly. At verbally, to accept a bill, thereafter to be drawn, such promise will what time it may be. not be negotiable; and the action for the breach thereof must be brought made. in the name of the person to whom the promise was made, and the declaration should be special, founded on the agreement. (219.) Although it has never been expressly decided, that the mere writing a name at the bottom of a blank piece of paper will have the operation of an acceptance, yet it may be inferred that it will have the same effect; it having been decided that an indorsement written on a blank stamp, will afterwards bind the indorser for any sum and time of payment which the stamp will admit, and which the person to whom he intrusts it chooseth to insert; and that a person signing his name to a blank paper, and delivering it to another person, for the purpose of drawing a bill in such manner as he should choose, was bound by such signature as a drawer.

An acceptance being an absolute undertaking to pay, may be made even after the time appointed by the bill for payment, and even after

tiff, and that he received the bill with a knowledge. A promise to accept not communicated to the person who takes the bill, does not amount to an acceptance; but if the person be thereby induced to take a bill, he gains a right, equivalent to an actual acceptance, against the party who has given the promise to accept.

• Russell D Langstaff, Dougl. 514. Powell v. Duff, 3 Campb. 182.

Collis v. Emmett, 1 Hen. Bla. 313. Per Ld. Ellenborough, C. J. in Wynne . Raikes, 5 East, 521. Jackson v. Pigot, Ld. Raym. 364. Salk. 127. Carth. 450. 12 Mod. 212. In an action against the

acceptor of a bill, the declaration stated,
that it was dated 25th March, 1696, pay-
able one month after date, and that in
April, 1697, it was shown to the de-
fendant, and he promised to pay it ac-
cording to its tenour and effect. After
verdict for the plaintiff, it was moved in
arrest of judgment, that the promise was
void, because, as the day of payment was
past at the time of acceptance, it was
impossible to pay the bill according to its
tenour and effect; but it was answered for
the plaintiff, that it amounted to a pro-
mise to pay generally, and the court being
of that opinion, gave judgment for the

(219) In Mason v. Hunt, Doug. Rep. 296. Lord Mansfield said, "there is no doubt but that an agreement to accept may amount to an acceptance, and it may be couched in such words as to put a third person in a better condition than the drawer. If one man to give credit to another make an absolute promise to accept his bill, the drawer or any other person may show such promise upon the exchange to get credit, and a third person who should advance his money upon it, would have nothing to do with the equitable circumstances between the drawer and the acceptor. But an agreement to accept is still but an agreement, and if it is conditional, and a third person takes the bill, knowing of the conditions annexed to the agreement, he takes it subject to these conditions." These observations were made in a case, where the bill was drawn after the supposed promise of acceptance was made; and therefore are entitled to be deemed something more than mere obiterdicta. The doctrine here stated has been recognized and enforced in respect to a promise to accept a bill not in esse in Maryland. (MKim V. Smith, 1 Hall's Law Journal, 485.) and in the Circuit Court of the United States in Massachusetts District. Payson v. Coolidge. See also 'an Reimsdyke v. Kane, 1 Gall. Rep. 630. and M'Evers v. Mason, 10 John. Rep. 207. Mayhew v. Prince, 11 Mass. Rep. 54. Banorgee v. Hovey, 5 Mass. Rep. 11. And an agreemant to accept a bill when drawn, if shown to a third person within a reasonable time after the agreement was made, and he take a draft on the credit of it, has been held in Massachusetts to be an acceptance. Wilson v. Clements, 3 Mass. Rep. 1. But although it be clear that a verbal acceptance or an acceptance by a collateral paper is good in law; (M'Evers v. Mason, 10 John. Rep. 207.) yet an agreement to accept a non-existing bill, when drawn, will not operate as an acceptance, unless it be in writing, and shown to a third person who takes a draft on its credit, within a reasonable time. Therefore if a person in writing authorize a draft and agree to accept it, a draft drawn two years afterwards, in favour of a person who took it on the faith of the agreement to accept, will not bind the drawee. Wilson v. Clements, Payson v. Coolidge, 2 Gallis. Rep. 233. S. C. 2 Wheaton 66. Goodrich & Deforest v. Gordon, 15 John. Rep. 6.