acceptances.

A verbal or written promise to accept, at a future period, a bill 3dly, Form and effect of already drawn, or that a bill then drawn, shall meet due honour (a), or shall be accepted, or certainly paid when due (b), amounts to an absolute acceptance; and a promise of the same nature, as for instance," leave the bill and I will accept it (c)," and it be pro- [231] ved that the bill was sent or left accordingly (d), 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 (e). 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 (ƒ). 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 (g), and a verbal promise to accept a returned bill when it shall come back, is binding if it be

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 before five o'clock. Lord Ellenborough 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 v.

Mead, 1 Stra. 416.

(4) Clark v. Cock, 4 East. 69, 70.

(6) Wynne v. Raikes, 5 East. 514. -Ex parte Dyer, 6 Ves. jun. 9. aute, 220, n. 2.

(e) 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 Clark 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 due honor, 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." (d) Anderson v. Hick, 3 Campb. 179. A bill drawn upon the defendants was returned unaccepted, but one of the defendants afterwards told the plaintiff, "if he would send it (he bill) to the counting house 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. (e) Pillans v. Van Mierop, Burr. 1669.

(f) Wynne v. Haikes, 1 East. 514. ante, 220. (g) Molloy, b. 2. c. 10. sec. 20.

3dly, Form returned (a). But as we have already seen (b), a promise to acand effect of acceptances. cept a non-existing bill is not an acceptance, although the party may be sued specially for the breach of his engagement (c).

A promise to accept in future, made on an executory consider[232]ation will not bind, while the consideration remains executory, unless it influence some person to take or retain the bill (d); and in all cases, if the promise to accept in future be obtained from the drawee, by any fraud or misrepresentation, it will not bind him, unless it be in the hands of a bona fide holder (e).

To constitute an acceptance there must be some circumstance from whence it may be inferred that that the drawee imagined he had induced the holder to consider the bill as accepted (ƒ), and the whole of the circumstances must be taken together, and there must be evidence of a contract to charge a party as acceptor (g). Therefore an express refusal to accept, as, "I will not accept the [* 233 ] bill(h);" or an answer given by the drawee *when the bill is called

(a) Cox v. Coleman, ante, 224, and Anderson v. Hick, 3 Campb. 179. supra, note 1.

(b) Ante, 217, 8, 9.

(c) Smith v. Brown, 2 Marsh. 41.

(d) Bayl. 78, 9. 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, Burr. 1666, Lord 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.

(e) Pillans v. Van Mierop, Burr. 1669.

(ƒ) Ante, 227, Bentinck v. Dorrien, 6 East. 201.

(g) 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 is 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 ac ceptance. 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 otherwise upon this evidence.

(h) 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: "Underwriting 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

for, "there is your bill, it is all right (a); " cannot be construed 3dly. Form and effect of into an acceptance, unless intended to deceive the holder, and acceptances. to induce him to consider it as an acceptance (b). And where the drawee after 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 (c). 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 (d). 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 amount to an acceptance (e). And in all cases when the under

Term, 1781, said "It was held by all the judges, that an express refusal to accept, written on the bill, where the drawee apprised the party who took it away, what he had written, was no acceptance; 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."

(a) Powell v. Jones, 1 Esp. Rep. 17.

(6) Id. ibid.

(e) Clavey v. Dolbin, Rep. Temp. Hardw. 278. ante, 232, n. 4. but see Harvey v. Martin, 1 Campb. 425, 6. ante, 228, in notes.

(d) Smith v. Nissen, 1 T. R. 269.

(e) 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 refused, they protested it for non-acceptance, and afterwards, on the day it became due, presented it to the drawees for payment, making a charge for the expences of protesting it; to which the drawees said, "this bill will be paid, but we cannot allow you for a duplicate protest." And the holders refused to receive payment without the charges; and afterwards 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 Ellenborough said, that in this case the defendants 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 neither of the parties were treating about accepting the bill, nor was it ever mentioned or contemplated b. 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 undoubtedly 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 D d

VOL. I.

3dly. Form taking "is doubtful, the drawee will be at liberty to rebut the preand effect of sumption in favour of an acceptance; as, where a bill was sent by acceptances. [234] post to the drawee for acceptance, and he entered it in his billbook, wrote upon it 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 (a).

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 [235] acceptance is called *conditional (b). This is permitted, though

we have seen that the bill cannot be drawn payable on a contingency (c). The holder is not bound to receive such an acceptance, but if he do receive it, he must observe its terms (d). He should give immediate notice to the other parties to the bill, of the nature of the acceptance offered (e); by which means they will not be discharged from liability to pay the bill, in case it should be returned.

case all that was ever contemplated was payment, and 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 Blanc, Justice, added, that to hold this an acceptance, would be to hold it something never intended by the parties. — And per curiam, judgment of nonsuit.

(a) 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 prac. tice with all bills he received, whether he intended to accept them or not) wrote upon it the number of the 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 Ld. 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.

(b) Bayl. 83, 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. Comey, 4 Campb. 176.-Gammon v. Schmoll, 5 Taunt. 344.-Swan v. Cox, 1 Marsh, 176.

(c) Colehan v. Cooke, Willes, 398. n. d. ante, 55 to 64.

(d) 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 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.

Gammon v. Schmoll, 4 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.

(e) Per Bayley, J. in Sebags v. Abitbol, 4 M. and S. 466.

Any act which evinces an intention not to be bound, unless 3dly. Form and effect of upon a certain event, is a conditional acceptance. Thus an acceptances: acceptance by the drawee of a bill, to pay, "as remitted for (a);"

or "on account of the ship Thetis, when in cash, for the said vessel's cargo (b);" or a promise to accept a returned bill, “when it shall come back (c)" or to accept "as soon as he should sell such goods (d); or an answer "that the *bill would not be accept- [ * 236 ] ed till a navy bill was paid (e) ;” or “that the drawer had consigned a ship and cargo to him (the drawee) and another 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 (ƒ);" or to pay if a certain house should be given up to the drawee before a named day (g); 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 (h). 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 (i). And it is not yet 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 (k). A conditional

(a) Banbury v. Lissett, 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 shew 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 on this.

(6) 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 not good, but the court held otherwise, and over-ruled the objection.

(c) Cox v. Coleman, cited in Lumley v. Palmer, Rep. T. Hardw. 74. ante, 231, n. 1.

(d) Smith v. Abbott, Stra. 1152.-Anonymous, 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, insisted 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.

(e) Pierson v. Dunlop, Cowp. 571. ante, p. 218. An answer that the bill would not be accepted till a navy bill was paid, was held a conditional accep tance, to pay when the navy bill should be discharged.

(f) Sproat v. Matthews, 1 T. R. 182. post, 239.

(g) Swan v. Cox, 1 Marsh. 177.

(h) Id. ibid. Clarke v. Cock, 4 East. 73.

(1) Wilkinson v. Lutwidge, Stra. 648.

(k) Gammon v. Schmoll, 5 Taunt. 344.-Sebags v. Abitbol, 4 M. & S. 462. See post. as to presentment for payment.