Gambar halaman
PDF
ePub

ances.

Chat it may be inferred from the drawee's keeping the bill a great length 3dly. For n of time, or by any other act, which gives credit to the bill, and induces and effect of acceptthe holder not to protest it; or is intended as a surprise upon him, and to induce him to consider the bill as accepted. But it should seem that the mere detention of a bill for an unreasonable time by the drawee [176] will not amount to an acceptance, although the drawee destroy the bill. And by the usage of trade in London, a check may be retained by a banker, on whom it was drawn, till five o'clock in the afternoon of the day on which it is presented for payment, and then returned, though it has been previously cancelled by mistake. And constructive acceptances ought to be watched with the utmost care, for when a party puts his name on a bill, he knows what he does, and that he thereby enters into a contract; but it is laying down a very loose and dangerous rule when any degree of latitude is given to these cases of constructive acceptances. The cases which have been determined in favour of these constructive acceptances have all been decided upon very special circumstances. As far as it respects inland bills drawn after the 1st August, 1821, these constructive acceptances have been

y Clavey v. Dolbin, Rep. Temp. Hardw. 278. Peach v. Kay, post, 178, n. liarvey r. Martin, 1 Campb. 425. Fernandez r. Glynn, I Campb 426. Poth. pl. 46.

Harvey v. Martin, 1 Campb 425. Bayl. 81, n. 2. In an action by the payee and holder of a bill against the defendant as acceptor, it appeared that the bill was drawn in Guernsey, where the drawer and the plaintiff resided, on the defendant, who lived in Cornwall, dated 13th of March, 1805, at three months; that within a fortaight after it was drawn, the plaintiff sent it to the defendant, desiring him to accept it, and remit to S. Dobree, the plaintiff's correspondent in London. On 15th April, 1805, the plaintiff, finding that the bill had not been sent to S. Dobree, wrote to the defendant, requesting him to accept and send it, stating, that though he considered the keeping of the bill as tantamount to an acceptance, yet that it was not the same to him, as S. Dobree would not give him credit for it until he received it accepted. The defendant, however, did not accept the bill, or remit it, or give any notice of his refusal so to do. On 1st of June, the defendant signed a letter, admitting that he had kept the bill, though told by the plaintiff that he considered his doing so as tantamount to an acceptance, as he intended to have paid it, but having no effects of the drawer's, refused to pay; and on 4th of July, when the bill was protested for nonpayment, he said he had neglected to write an acceptance upon it, thinking it of no consequence, as he meant to pay it. Lord Ellenborough referred to a MS. case of Trimmer r. Oddie, in which Lord Kenyon expressed an opinion, that a mere keeping of a bill was an acceptance, and said he inclined to entertain the same opinion, but should leave that question to the jury, on the custom, Gibbs, however, for the defendant, admitting that he could not an

swer the case, a verdict was found for the
plaintiff. And on an application to Lord
Ellenborough to certify for a special jury,
his Lordship refused, saying, that this was.
a clear case, but that it it had not been
attended with such strong admissions on
the part of the defendant, but had been
a mere case of a bill kept by the drawee,
he should have thought it, a fit case for a
special jury to decide whether such de-
tention of the bill amounted to an accept-

ance.

See Scaccia de Commerciis et Cambio, folio 383. num. 335. who, in enumerating the different acceptances, mentions, that which is made tacite per receptionem et detentionem literarum. See also Poti. Contrat de Change, part 1, chap. 3d. page 39, who observes, that the ordonnance having directed that an acceptance should be in writing, had rendered inadmissible the acceptation tacite resulting from the drawees having received and retained the bill.

2 Mason v. Barff, 2 B. & A. 26.

a

Jeune v. Ward, 1 B. & A. 653.

b Fernandez v. Glynn, I Campb. 426, in notes; plaintiff paid into the house of Vere and Co. a check on the defendant's house. Vere's clerk took it to the clearing house to be paid, and put it into the defendant's drawer. Vere's clerk received it back before five, cancelled, with a memorandum written under it, "cancelled by mistake." The course was proved to be for the clerks to take the checks from the drawers, and send them to the respective bankers, and those which they will not pay are returned tefore five o'clock. Leid Elleborough held, that notwithstanding the cancelling, the defendant had till five o'clock to return the bill; and having so returned it, it amounted to a refusal to pay. See also Turner. Mead, 1 Stra. 416.

Mason . Barff, 2 B. & A. 35, 6.

3dly. Form put an end to by the late act, requiring the acceptance to be in writing and effect on the bill itself."

of accept

ances.

h

A verbal or written promise to accept, at a future period, a bill already drawn, or that a bill then drawn, shall meet due honour, or shall be accepted, or certainly paid when due, amounts to an absolute acceptance; and a promise of the same nature, as for instance, "leave the bill and I will accept it," and it be proved that the bill was [177] sent or left accordingly, will also amount to a complete and absolute acceptance, in the hands of a bona fide holder, although the drawee had no consideration for the promise. So a letter promising that a bill already drawn shall be paid, will operate as an acceptance, although the letter be not received until after the bill has become due, and although no person has been induced by such promise to take the bill. So a verbal promise to accept, though the party expressly defer a written acceptance, yet where he says, "leave the bill and I will accept it," is a complete acceptance, and a verbal promise to accept a returned bill when it shall come back, is binding if it be returned. But as we have already seen, a promise to accept a non-existing bill is not an acceptance, although the party may be sued specially for the breach of his engagement.

A promise to accept in future, made on an executory consideration, will not bind, while the consideration remains executory, unless it influence some person to take or to retain the bill; and in all cases, if the promise to accept in future be obtained from the drawee, by any

d 1 & 2 Geo. 4. c. 78. Ante, 170.
Clarke v. Cock, 4 East, 69, 70.

f Wynne v. Raikes, 3 East, 514. Ex
parte Dyer, 6 Ves. 9.

8 Bul. Ni. Pri. 270. Molloy, b. 2. c. 10.
s. 20. Mar. 17
Bayl. 81. acc. Pierson
v. Dunlop, Cowp. 573. Semb. contra, and
quare if this answer would amount to an
acceptance, if given within the twenty-
four hours which the drawee usually has to
accept the bill.

Bul. Ni. Pri. 270. A small matter
amounts to an acceptance, as saying,
"leave the bill with me and I will accept
it," for it is giving a credit to the bill, and
hindering the protest.

Lord Ellenborough, in Clarke v. Cock, 4 East, 69, said, "It has been laid down in so many cases, that a promise that a bill when due shall meet with due honour, amounts to an acceptance, and that without sending it for a formal acceptance in writing, that it would be wasting words to refer to books on the subject."

Lord Ellenborough, in delivering judgment in Wynne v. Raikes, 5 East, 521, said, "A promise to pay an existing bill, is an acceptance. A promise to pay it is also an acceptance. A promise therefore to do the one or the other, i. e. to accept or certainly pay, cannot be less than an acceptance."

A

b Anderson v. Hick, 3 Campb. 179
bill drawn upon the defendants was re-
turned unaccepted, but one of the de-
fendants afterwards told the plaintiff, "if

he would send it (the bill) to the countinghouse again, he would give directions for its being accepted." The plaintiff contended that this promise amounted to an acceptance; but could not prove that the bill was sent back to the defendant's counting-house. Lord Ellenborough said, "This was only a conditional promise to accept, and could not operate as an acceptance till the bill was sent back to the counting-house;" plaintiff nonsuited. See also Cox v. Coleman, cited Rep. Temp. Hardw. 74.

i Pillans v. Van Mierop, 3 Burr. 1669. Wynne v. Raikes, 5 East, 514. ante, 169, note.

Molloy, b. 2. c. 10. s. 20.

m Cox v. Coleman, ante, 171, and Anderson v. Hick, 3 Campb. 179. supra,

[blocks in formation]

• Smith v. Brown, 2 Marsh. 41.

Bayl. 78, 79. cites Pillans v. Van Mierop, 3 Burr. 1669. and see Clarke v. Cock, 4 East, 70. Wynne v. Raikes, 5 East, 521. Holt, C. N. P. 183. In Pillans, v. Van Mierop, 3 Burr. 1669, Ld. Mansfield says, it was argued at the trial that this imported to be a credit given to Pillans and Rose, in prospect of a future credit to be given by them to White, and that this credit might well be countermanded before the advancement of any money, and this is so.

fraud or misrepresentation, it will not bind him, unless it be in the 3dly. Form and effect hands of a bona fide holder. of accept

And

ances.

To constitute an acceptance there must be some circumstance from whence it may be inferred that the drawee imagined he had induced the holder to consider the bill as accepted, and the whole of the circumstances must be taken together, and there must be evidence of a contract to charge a party as acceptor. Therefore an express refusal to accept, as, I will not accept the bill ;" or an answer given by the [ 178 ] drawee when the bill is called for, there is your bill, it is all right;"u cannot be construed into an acceptance, unless intended to deceive the holder, and to induce him to consider it as an acceptance. where the drawee after a refusal to accept, on the ground that he had no effects, promised to attempt to procure payment for the holder, because he had just received some effects; on which the bill was presented to him, and he desired the holder to leave it, and said, that he would examine into it; whereupon the bill was left with him eight or ten days, and was then called for, on which the drawee offered to let the holder sell some of the effects, and pay himself; this conduct was holden not to amount to an acceptance. So it has been determined, that if the drawee of a bill say he cannot accept it without further direction from I. S., and I. S. afterwards desire him to accept and draw upon A. B. for the amount, the mere drawing a bill upon A. B. will not amount to an absolute acceptance, nor can become such before the bill on A. B. is accepted. And where the drawee of a bill, on presentment for payment, said, "this bill will be paid, but we cannot allow you for a duplicate protest," and the holder refused to receive payment without the charges of such protest, this was held not to

2

4 Pillans v. Van Mierop, 3 Burr. 1669. * Ante, 174. Bentinck v. Dorrien, 6 East, 201.

Per Lord Hardwicke, in Clavey v. Dolbin, Rep Temp. Hardw. 278. Action upon an inland bill of exchange against the acceptor, and the evidence of an acceptance was this; the bill having been presented for acceptance, and refused by the drawee, because he had no effects, was returned into the country, and a little while afterwards, the bill being hazardous, plaintiff's agent met the drawee and asked him if he could not help to secure him his debt, and he said he would if he could, for he had now some effects in his hands; whereupon the agent immediately wrote for the bill, and presented it to the drawee, who bid him leave the bill and he would examine into it, and it was left with him eight or ten days, and then the agent called again, and the drawee offered to let him sell some of the effects and pay himself, which the agent refused, and thereupon this action was brought; and per Lord Hardwicke, indeed, it has been adjudged, that a parol acceptance will be good, and possibly leaving the bill ten days with the drawee might of itself be such a consent as to amount to an acceptance. But this is not so, for you must take the whole together, and there must be evidence of a contract

to charge the acceptor, whereas it is other-
wise upon this evidence. Rees v. War-
wick, 2 B. & A. 113.

Peach v. Kay, Bayl. 78. acc. Lumley
v. Palmer, Rep. Temp. Hardw. 75, in
notes, (where a written refusal is said to
amount to an acceptance) contra.

In Lumley v. Palmer, Rep. Temp.
Hardw. 75, there is this note:
"Under-
writing or indorsing a bill thus, I will not
accept this bill, is held by the custom of
merchants to be a good acceptance," but
in Bayley on Bills, 78, it is stated that
Lord Mansfield, in Peach v. Kay, Sittings
after Trinity Term, 1781, said, "It was
held by all the Judges, that an express re-
fusal to accept, written on the bill, where
the drawee apprized the party who took
it away, what he had written, was no ac-
ceptance; but if the drawee had intended
it as a surprise upon the party, and to
make him consider it as an acceptance,
they seemed to think it might have been
otherwise."

" Powell v. Jones, 1 Esp. Rep. 17.
* Id. Ibid.

y Clavey v. Dolbin, Rep. Temp. Hardw.
278, ante, 178, note, but see Harvey v.
Martin, 1 Campb. 425, 6. ante, 175, in

[blocks in formation]

3dly. Form amount to an acceptance." So where the drawer of a bill wrote to the and effect drawee, stating, that he valued on him for the amount, and added, of accept-❝which please to honour;" to which the drawee answered, "the bill

shall have attention;" it was held, that these words were ambiguous, and did not amount to an acceptance of the bill, inasmuch, as although an acceptance may be made by a letter to a drawer, still that can only be so where the terms of the letter do not admit of doubt. And in all case when the undertaking is doubtful, the drawee will be at liberty to rebut the presumption in favour of an acceptance; as, where a bill was sent by post to the drawee for acceptance, and he entered it in his bill-book, wrote upon it to the number of the entry, and kept it ten days, and on the tenth day minuted the day of the month on it, and returned it, saying he could not accept, it was adjudged that these circumstances did not constitute an acceptance, it being proved that it was the drawee's practice to enter all his bills, whether he meant to accept them or not.

[180] If the drawee of a bill be desirous not entirely to dishonour it, he may make such an acceptance as will subject him to the payment of the money only on a contingency, in which case the acceptance is called conditional. This is permitted, though we have seen that the bill cannot be drawn payable on a contingency." The holder is not bound to receive such an acceptance, but if he do receive it, he must observe its

d

[ocr errors]

as to that the defendant says, if you will take the amount of the bill it shall be paid, but if you choose to insist on having the seventeen shillings, I will not pay it. Not one word passes about acceptance; and the party unfortunately elected to stand upon his claim to the seventeen shillings, but for which he would have been paid. And Le Blance, J. added, that to hold this an acceptance, would be to hold it something never intended by the parties. And per curiam, judgment of nonsuit.

* Anderson and others v. Heath and
others, 4 M. & S. 303. Where the holders
of a foreign bill of exchange, payable
sixty days after sight, presented it to the
drawees for acceptance, which being re-
fused, they protested it for non-accept-
ance, and afterwards, on the day it be-
came due, presented it to the drawees for
payment, making a charge for the ex-
penses of protesting it; to which the
drawees said, this bill will be paid, but
we cannot allow you for a duplicate pro-
test." And the holders refused to receive
payment, without the charges; and after-
wards the drawees revoked their offer to
pay; held, that they might well do so,
for this did not amount to an acceptance
of the bill by the drawees. Lord Ellen-
borough said, that is this case the defend-
ants had, as it were, commenced the
work of discharging the bill, and were
upon the very brink of paying it, when
the subject of the charge for the duplicate
protest was started, which caused them
to hold their hand. But at this time nei-
ther of the parties were treating about
accepting the bill, nor was it ever men-
tioned or contemplated by them; all that
was thought of was the payment of the
bill. If therefore this could enure as an
acceptance, it would enure against the
plain intent of the parties. It is un-
doubtedly true, that if a merchant, upon
being applied to for his acceptance, uses
words which import a promise to pay the
bill, this will amount to an acceptance;
but it is not so where the words are used
upon a different occasion, and with a
different intent. Now in this case all that
was ever contemplated was payment, and ante. 42 to 50.

Rees v. Warwick, 2 B. & A. 113. Powell v. Monnier, 1 Atk. 611. A bill was sent by the post to the drawee for acceptance; he entered it in his bill book (which was his practice with all bills he received, whether he intended to accept them or not) wrote upon it in the number of this entry, and kept it ten days; on the tenth he wrote upon it the day of the month, and returned it, saying he could not accept it. And per Lord Hardwicke, "It has been said to be the custom of merchants, that if a man underwrites any thing, be it what it may, it amounts to an acceptance; but if there were nothing more than this in the case, I should think it of little avail to charge the defendant;" but he decided that a letter, the drawer had written, amounted to an acceptance, and see Mason v. Barff, 2 B. & A. 20.

d Bayl. 63, 4, 5. Selw. N. P. 4th edit. 316, 7. Milne v. Prest, Holt, C. N. P. 182. 4 Campb. 393. Anderson v. Hick, 3 Campb. 179. Langston v. Corney, Campb. 176. Gammon v. Schmoll, 5 Taunt. 344. Swan v. Cox, 1 Marsh. 176. e Colehan v. Cooke, Willes, 398. note d.

terms. He should give immediate notice to the other parties to the 3dly. Form and effect bill, of the nature of the acceptance offered; by which means they of acceptwill not be discharged from liability to pay the bill, in case it should be

returned.

ances.

Any act which evinces an intention not to be bound, unless upon a certain event, is a conditional acceptance. Thus an acceptance by the drawee of a bill, to pay, 66 as remitted for;" or "on account of the ship Thetis, when in cash, for the said vessel's cargo;" or a promise to accept a returned bill," when it shall come back" or to accept "as soon as he should sell such goods; or an answer "that the bill would not be accepted till a navy bill was paid;" or "that the drawer had consigned a ship and cargo to him (the drawee) and another [ 181 ] person at Bristol, but that as he could not then tell whether the ship would arrive at London or at Bristol, he could not accept at that time;" or to pay if a certain house should be given up to the drawee before a named day; have respectively been holden to be conditional acceptances, and not to render the acceptor liable to the payment of the bill until the contingency has taken place. But an answer by the drawee, that he would pay if another person would not, was construed to amount to an absolute acceptance, it appearing that the drawee held himself liable at all events, and that from other circumstances, it was not intended as a conditional acceptance. And until the late decision and statute it was not settled whether the drawee. by accepting the bill, payable at a particular place, qualifies his general liability, so as to render it necessary to present the bill for payment at that place. A conditional acceptance becomes as binding as an absolute one, when the event has happened on which the drawee undertook to pay the bill..

Per Bayley, J. in Sebags v. Abitbol, 4 M. & S. 466. and in Boehm v. Garcias, 1 Campb. 425. Per Lord Ellenborough. The plaintiff had a right to refuse this ac ceptance. The drawee of a bill has no right to vary the acceptance from the terms of the bill, unless they he unambiguously and unequivocally the same.

Gammon v. Schmoll, 5 Taunt. 353. Per curiam. A man is not bound to receive a limited and qualified acceptance; he may refuse it and resort to the drawer; but if he does receive it, he must conform to the terms of it. See also Parker v. Gordon, 7 East, 387. S. P.

& Per Bayley, J. in Sebags v. Abitbol, 4 M. & S. 460.

b Banbury v. Lisset, Stra. 1212. The drawee accepted a bill "for Lisset and Galley, of Leghorn, to pay as remitted for thence, at Usance," and it was objected in an action against him, that there was no evidence to show he had a remittance and that his acceptance was conditional only. Lee, C. J. declared he so understood it; but he left it to the jury, and they found for the defendant upon another point, and gave no opinion upon this.

Julian v. Shobrooke, 2 Wils. 9. The defendant accepted a bill to pay, when in cash, for the cargo of the ship Thetis; and on being sued, moved in arrest of judgment, that a conditional acceptance was

[merged small][ocr errors]

Smith v. Abbott, Stra. 1152. Anon. 12 Mod. 477.

Smith v. Abbott, Stra. 1152. The defendant accepted a bill, "to pay when goods consigned to him were sold." He sold the goods, and on being sued upon his acceptance, in arrest of judgment, that it was not binding, because it was conditional; but the court, on consideration, held, that though the plaintiff might have refused to take it and have protested the bill, yet as he did take it, it was binding on the defendant.

m Pierson v. Dunlap, Cowp. 571. ante, 168, n. An answer" that the bill would not be accepted till a navy bill was paid," was held a conditional acceptance, to pay when the navy bill should be discharged. Sproat v. Matthews, 1 T. R. 182. post, 182, 3.

[ocr errors]

Swan v. Cox, 1 Marsh. 177.

P Id. ibid. Clark v. Cock, 4 East, 73.
9 Wilkinson v. Lutwidge, Stra. 648.
Gammon v. Schmoll, 5 Taunt. 344.
Sebags v. Abitbol. 4 M. & S. 462. See
post, as to presentment for payment.

Banbury v. Lisset, Stra. 1212. Lum-
ley v. Palmer, Rep. Temp. Hardw. 74.
Pierson v. Dunlop, Cowp. 571. Sproat .

« SebelumnyaLanjutkan »