what time made. 2dly. At a prior refusal to accept," so as to bind the acceptor, though it would it may be discharge the drawer and indorsers, unless due notice of the prior nonacceptance, or of non-payment at the time the bill became due, were given; and in such case, the acceptor would be liable to pay the bill on demand; though in pleading his liability may be stated to have been to pay according to the tenor and effect of the bill. It has been observed, that the drawee, although he have effects of the drawer's, [170 ought not to accept bills, after he is aware of the failure of the drawer, because after that event, one creditor of the drawer ought not to be paid in preference to another. But, payments made to a bankrupt without knowledge of his being so, are protected by the 1st Jac. 1. c. 15. s. 14; and as an acceptance of a bill for a precedent debt, has always been deened a payment in satisfaction, provided the bill be honoured when due, there is no doubt, and indeed it has been so decided, that if a person not having notice of the bankruptcy of the drawer, accept a bill drawn on him after such bankruptcy, he will be justified in paying his acceptance, although he has afterwards heard of the bankruptcy; but where a trader, after a secret act of bankruptcy, consigned goods to a factor who agreed to advance money thereon, and accordingly accepted and paid bills drawn on him by the trader, and a commission afterwards issued against such trader on such prior act of bankruptcy, after which the factor sold the goods and received the money, it was held that he was answerable to the assignees for the value of the goods. If a person draw a bill of exchange on another, and deliver it to the payee for a sufficient consideration, and the drawer then die, this being an appropriation of a particular fund for the benefit of the payee, it seems that the death would be no revocation of the request to accept, and that the drawee may accept and pay."(221) 3dly. Form tances whe An acceptance may be considered with reference, 1st. to its form, and effect and 2dly, to its extent or effect. In point of form, before the late act of the diffe- it might be verbal, or written. But by the statute 1 & 2 Geo. 4. c.78, rent accep it was enacted, "that from and after the 1st day of August, 1821, no ther in wri- acceptance of any inland bill of exchange shall be sufficient to charge ting or ver- any person, unless such acceptance be in in writing on such bill, or if bal,or abso- there be more than one part of such bill, on one of the said parts." In lute, condi- point of extent or effect, an acceptance is either absolute, conditional, partial, or varying from the tenor of the bill. The holder may in all rying. cases insist on an absolute acceptance, in writing, on the face of the tional, par tial or va plaintiff. Milfor v. Walcot, Ld. Raym. h Wynne v. Raikes, 5 East, 314. The Mitford v. Walcot, 12 Mod. 410. * See the cases in note, supra. 1 Id. ibid. Poth. pl. 96, et vide Pinkerton v. Marshall, 2 Hen. Bla. 334, and cases there cited. n Wilkins v. Casey, 7 T. B. 711. Ante. 119, note; and see observations in Copland v. Stein, 8 T. R 208. Copland v. Stein, 8 T. R. 208. This is altered as to transactions upwards of two months before the date of the commission, see 46 Geo. 3. c. 135. 49 Geo. 3. c. 121; see also ante, 115 to 120. P Tate v. Hiblert, 2 Ves. jun. 115, 6. Hammonds v. Barclay, 2 East, 227-235, 236, post, tit. Payment, sed quære. (221) And see Peyson v. Hallett, 1 Caines' Rep. 379. and Cutts v. Perkins, 12 Mass. Rep. 206. to the same effect. L bill, according to the terms of the bill, and in default thereof, may 3dly. Form and effect consider the bill as dishonoured.a of accept 6 ances. And, therefore, in a late case, in an action on a bill, against the drawer of a bill drawn on Lisbon, payable in effective and not in val reals," and the drawee had offered to accept it, payable in val denaros, another sort of currency, it was held that the holder might have refused [ 171 ] such acceptance, and protested the bill as dishonoured; and Lord Ellenborough said, "The plaintiff had a right to refuse this acceptance. The drawee of a bill has no right to vary the acceptance from the terms of the bill, unless they be unambiguously and unequivocally the same. Therefore, without considering whether a payment in denaros' might have satisfied the term effective,' an acceptance in denaros' was not a sufficient acceptance of a bill, drawn payable in effective.' The drawee ought to have accepted generally, and an action being brought against them on the general acceptance, the question would properly have risen as to the meaning of the term." So in Parker v. Gordon,s Mr. Justice Lawrence said, "The holder of a bill may refuse to take a special acceptance payable at a banker's, but if he choose to take it, he must comply with the terms of it, and present it there in the usual banking hours, or he will discharge the drawer and indorsers." If, however, he be satisfied with any of these acceptances, each will be obligatory on the acceptor, and if due notice thereof be given to the other parties to the bill, they will also be liable. Premising, as a general rule, that what amounts to an acceptance is a question of law, and not of fact, the nature of these several acceptances will be considered in their proper order. Before the recent act, it was established that a valid acceptance 1st Form. may be in writing, on the bill itself, or on another paper, as by a letter undertaking to accept bills already drawn, or that it may be verbai; (223) and as that act only relates to inland bills, it it still necessary to con-[ 172 ] Poth. pl. 47 3 & 4 Anne, c. 9. s. 5. Parker v. Gordon, 7 East, 387. Gammon v. Scholl, 5 Taunt. 344. 1 Marsh. 80. S. C. Boehm v. Garcias, 1 Campb. 425. t * 7 East, 385. Sproat v. Matthews, 1 T. R. 182. 186. "Geo. 4 c. 78. Ante, 170. Clarke v. Cock, 4 East, 71. Ex parte Dyer. 6 Ves. 9. Holt, C. N. P. 83, 4. Selw. Ni. Pri. 4th edit. 311. In Crutchley v. Mann, 1 Marsh. 29. it seems to have been doubted, whether an engagement on another paper to accept a foreign bill must not be stamped, but this, it should seem, cannot be necessary. Clarke v. Cock, 4 East, 67. Ex parte Dyer, 6 Ves. 9. Lumley v. Palmer, Rep. temp. Hardw. 74. Stra. 1000. S. C. Clavey v. Dolbin, Rep. temp. Hardw. 278. Dupays r. Shepherd, Holt, 297. Mar. 65. See 3 & 4 Anae, c. 9. s. 5. Bayl. 70, n. e. Cox v. Coleman, M. 6 Geo. 2. cited arguendo, Ann. 75. A foreign bill drawn on defendant was protested for non-acceptance, and returned, and afterwards de fendant told the plaintiff, "if the bill Lumley v. Palmer, Str. 1000. Rep. (223) The same doctrine was recognised in M'Evers v. Mason, 10 Johns, Rep. 207. Wilson v. Clement, 3 Mass. Rep. 1. of accept a 3dly. Form sider the decisions as they still effect foreign bills, and also inland and effect bills drawn before the 1st August, 1821. In Johnson v. Collings, ances. Lord Kenyon, C. J. observed, "that it is much to be lamented, that any thing has been deemed to be an acceptance of a bill of exchange, besides an express acceptance in writing; but he admitted, that the cases had gone beyond that lien, and had determined that there might be a parol acceptance." And in Clarke v. Cock, Lord Ellenborough, C. J. observed, "That if the law in this respect were to be framed de novo, it might perhaps be desirable to have nothing else taken as an acceptance, than an acceptance in writing on the bill itself, that every one to whom it passed, might see on the face of the instrument itself, whether or not it were accepted; but that it is now much too late to recur back to that, after the various decisions in the times of Lord Hardwicke and Lord Mansfield ;" and he also observed, “That it might be for the convenience of mercantile affairs, that a bill might be accepted by a collateral writing, without the bill itself coming to the actual touch of the acceptor, which would sometimes create great delay." And therefore in Clarke and others v. Cock, where A. in consideration of having commissioned B. to receive certain African bills payable to him, drew a bill upon B. for the amount, payable to his own order, and B. acknowledged, by letter, the receipt of the list of the African bills, and that A. had drawn for the amount, and assured him that it would meet with due honour from him; this was holden an acceptance of the bill by B.; and the purport of such letter, having been communicated by A. to third persons, who, on the credit of it, advanced money on the bill to A., and who indorsed it to them, it was also holden, that B. was liable, as acceptor, to an action by such indorsees, although after the indorsement, in consequence of the African bills having been attached in B's. hands, who was ignorant of his letter having been shown, A. wrote to B., advising him not to accept the bill when tendered to him, which, as between A. and B., would have been a discharge of B's. acceptance, if the bill had still remained in A's. hands. And in Wynne and another v. Raikes and others, it was holden, that a letter from the drawees of a bill in England, to the drawer in America, stating, that their prospect of security being so much improved, they should accept or certainly pay the bill," is an acceptance in law, although the drawees had before refused to accept the bill, when presented for acceptance by the holder who resided in England, and [175]again, after the writing such letter, refused payment of it when presented for payment, and although such letter, written before, was not received by the drawer in America until after the bill became due. It is necessary, however, to observe, that an inland bill cannot be protested for non-payment, unless it has been accepted in writing. If a party to a bill, on being asked if it be his own hand-writing, answer that it is, and will be duly paid, or if he has paid several other bills accepted in the same hand-writing, he cannot afterwards set up, as a defence, forgery of his name; for he has accredited the bill, and induced another to take it." to and approved of in Julian v. Schol- 2 Johnson v. Collings, 1 East, 103. b Id. ibid. 4 East, 71. S. C. d Wynne v. Raikes, 5 East, 514. Er As already observed, an acceptance, in regard to extent or effect, may 2dly be either absolute, conditional, or partial, or varying from the tenor of tent or ef fect. the bill. In regard to these, many of the points in the pages immediately preceding, are applicable. An absolute acceptance is an engagement to pay the bill according to Absolute. its tenor. At present, the usual mode of making such an acceptance is either by writing on the bill the word "accepted" and subscribing the drawee's name; or by writing the word "accepted," only; or it may be by merely writing the name, either at the bottom, or across the bill. Where a bill payable after sight is accepted, it is usual and proper also to write the day on which the acceptance is made. And if on production of such a bill an acceptance appears to have been written by the defendant, under a date which is not in his hand-writing, the date is evidence of the time of acceptance, because it is the usual course of business in such cases for a clerk to write the date, and for the party to write his acceptance under the date. On a written acceptance by any other person than the drawee, it should seem essential that his name should appear. By the practice of the London bankers, if one banker who holds a check drawn on another banker, presents it after four o'clock, it is not then paid, but a mark is put on it to show that the drawee. has effects, and that it will be paid, and this marking amounts to an acceptance, payable next day at the clearing house. When an acceptance is made by one partner only, on the partnership account, he should [ 174] regularly subscribe the name of the firm, or express that he accepts for himself and partner; but any mode which indicates an intention to be bound by the terms of the request in the bill, will bind the firm." And when by an agent for his principal, he must subscribe the name of such principal, or specify that he does it as agent, as otherwise it may, if he be named or described in the direction of the bill, make him personally responsible." It has been adjudged, that if a bill be made payable in a city or large town generally, it must, by the acceptance, be made payable at some particular house or place there, and if not, that the holder may protest it, which seems reasonable, as otherwise it would be difficult in many cases for the holder to find out the residence of the drawce. (226) Much discussion has of late taken place upon the . Ryde, 1 Marsh. 159, 160; and Price v. Neal, there cited. Leach v. Buchanan, 4. Esp. Rep. 226. Indorser against the acceptor of a bill of exchange; the only evidence as to the acceptance was, that the defendant had acknowledged to witness that this acceptance was his hand-writing, and that it would be duly paid. The defendant offered to prove that the acceptance had been forged by the drawer, but Lord Ellenborough held, that unless the evidence given by the plaintiff was wholly discredited, it could not entitle the defendant to a verdict; and as he so accredited the bill, and induced a person to take it, he should hold him liable for the h Glossop v. Jacob, 4 Campb. 227. 1 i Bayl. 78. Robson v. Bennett, 2 Taunt. 388. m Ante, 39. Mason v. Rumsey; 1 n Poth. pl. 118. Thomas v. Bishop, 2 Stra. 955. Macbeath v. Haldimand, 1 T. R. 172. Gregory v. Walcup, Comyns, 75. Mut. ford v. Walcot, Ld. Raym. 574. (226) Where a foreign bill is drawn on persons residing in A., payable in B., without any particular place in the latter city being designated where payment is to be made, the holder may demand acceptance and payment of the drawees, at A, and a protest for non-acceptance or non-payment will be good if made there; or the holder may at his election, if payment is not made at B. at the maturity of the bill, protest the bill there for non-payment. For as no place in B. is pointed out to which the holder might resort, and CHITTY ON BILLS. Y ances. 3dly. Form effect of an acceptance payable at a particular place, and which we will and effect consider when we examine the presentment for payment. If the drawee of accept-determine that the bill shall be payable only at a particular place, the statute 1 & 2 Geo. 4. c. 78, enacts, that he must, in his acceptance, express that he accepts the bill payable at a banker's house, or other place only, and not otherwise or elsewhere." 66 In general, as no formal act is required to constitute a simple contract, and any mode which demonstrates an intention to become bound by it, will have an obligatory force on the contracting party; any act of the drawee which evinces a consent to comply with the request of the drawer, will constitute an acceptance. Thus the word "accepted, ""seen," "presented," the day of the month, or a direction to a third person to pay the bill, written thereon, or any other paper, relating to the transaction, will amount to an acceptance; and 175 though the bill be not addressed to any person, yet if defendant write across it, "accepted, C. M." he will be liable as acceptor;" nor, indeed, as we have just seen, was it necessary before the late act, that the acceptance should be in writing. An acceptance may also as to foreign bills and inland bills drawn before 1st August, 1821, be implied as well as expressed; and it is said P Poth. pl. 45. 9 Anon. Comb. 401. Per Holt, C. J. If the drawee underwrites a bill "presented such a day, or only the day of the month," it is such an acknowledgment of the bill as amounts to an acceptance, and this was declared by the jury to be the common practice; and see Vin. Abr. tit. Bills of Exchange, L. 4. Bayl. 77. • Id. ibid. Moor v. Whitby, Bull. Ni. Pri. 270. A bill, drawn by Newton on the defendant was presented for acceptance; the defendant wrote upon it," Mr. Jackson, please to pay this note, and charge it to Mr. Newton's account. R. Withby." It was insisted that this was no acceptance, but only a direction to Jackson to pay it out of a particular fund, and if there were no such fund the money was not to be paid. Per cur. This is a direction to Jackson to pay the money, and it signifies not to what account it is to be placed, when paid; that is a transaction between them only, and this is clearly a sufficient acceptance. Bayl. 77, 8. Selw. Ni. Pri. 4th edit. 314. Wilkinson v. Lutwidge, Stra. 648 Drawer against the acceptor of a bill of the drawees reside at A. an attempt to search for them at B. would be without object or effect; and the holder is not bound to go elsewhere, as the bill has directed payment at B.; and he may conform his conduct to the tenor of the bill. And on the other hand it is a sound rule that where no particular place of payment is fixed, a demand upon the drawees personally is good; and a general refusal to pay is a refusal according to the tenor of the bill, and is equivalent to a refusal to pay in B. Mason v. Franklin, 3 John. Rep. 202. Bort v. Franklin, 3 John. Rep. 207. Where a note is not payable at any particular place, and the maker has a known and permanent residence within the state, the holder is bound to make a demand of payment, there, in order to charge the indorser; but where a note was dated at Albany, and the maker had removed to Canada, a demand of payinent at Albany was held sufficient. Anderson v. Drake, 14 John. Rep. 114. |