ance may be made prior to drawing the bill, by writing the name of the acceptor across the face of the paper; and if the acceptor delivers it as an acceptance, he is estopped from saying that he delivered it before the bill was drawn, nor need the holder prove any custom of merchants thus prematurely to accept an intended bill, nor will there be a variance if the declaration states the drawing of the bill in the usual form, and that the drawee afterwards accepted. We think, however, the paper should be filled up and used within a reasonable time after it was signed.(o) The acceptor of such a paper may be made liable for any amount which the person receiving the paper chooses to insert in the bill; nor is it necessary that the bill be drawn by the same person to whom the blank acceptance is handed.(p)

A factor who receives and holds goods against which a bill of exchange is drawn, acquires a lien on the consignment for the amount of the bill, even though the goods are not in his possession, but are still in the hands of a forwarder.(q) It is however well settled, that a bill of exchange drawn against a consignment of goods does not generally operate as a specific appropriation of the goods or their proceeds to the payment of the bill, either at law or in equity.(r) And if a person has goods or funds in the possession of another, he cannot by drawing a bill on that person render

(0) Molloy v. Delves, 4 Car. & P. 492, 5 Moore & P. 275; Bank of Limestone v. Penick, 5 T. B. Mon. 25. In Montague v. Perkins, C. B. 1853, 22 Eng. L. & Eq. 516, it was held that it is no defence that an acceptance was given in blank to the drawer, and that the bill was not issued until twelve years after; the statute of limitations commencing to run from the time the bill was due as filled up, and not from the time it would have become due if completed when accepted in blank. In Temple v. Pullen, 8 Exch. 389, it was held proper to leave the question to the jury to say whether a note which was not filled up till six years after the signature in blank, was filled up within a reasonable time, considering the circumstances of the defendant and his ability to pay the note. The same doctrine seems to have been decided with regard to a blank acceptance, in Mulhall v. Neville, 8 Exch. 391, note. The authority given by a blank acceptance to fill it up is not lost merely because the drawer by mistake antedates the instrument a year, although it is made payable a certain time after date; and if the period has elapsed from the time of the completion of the instrument, an action may be maintained upon it, and the variance will be amendable. Armfield v. Allport, 3 H. & N. 911.

(p) Schultz v. Astley, 2 Bing. N. C. 544, 7 Car. & P. 99.

(9) Davis v. Bradley, 28 Vt. 118; Gragg v. Brown, 44 Maine, 157; 1 Parsons on Contracts, 84, note q.

(r) Harris v. Clark, 3 Comst. 93, 118; Cowperthwaite v. Sheffield, 1 Sandf. 416, 3 Comst. 243; Winter v. Drury, 1 Seld. 525; Marine & Fire Ins. Bank v. Jauncey, 3 Sandf. 257; Chapman v. White, 2 Seld. 412; Wheeler v. Stone, Gill. 38.

the drawee liable to the payee for not accepting the draft. (s) But it would seem that, if a person should write to a factor that he had sent him certain goods for sale, and drawn a bill on him on the credit of the goods to a certain amount, the factor, if he received the consignment, would be bound to accept the bill.

The question still remains whether the payee of the bill would have a right of action against the factor as an acceptor for money had and received to his use, on the ground that the acceptance of the consignment was equivalent to a promise to accept. We should hold him so liable, on the ground that by accepting the consignment he had made a contract with the drawer to accept the bill, and that this contract being for the benefit of a third person, this person might bring an action for the breach of the contract.(t)

As a note, although made, only takes effect when it is delivered, the same thing is true of an acceptance. This therefore is revocable until the bill is delivered to the holder or his agent who presents it for acceptance, (u) although it seems to have been held otherwise formerly.(v) If the acceptance is in any of the ways which we have seen to be equivalent to the usual acceptance, and the bill is not in the hands of the acceptor, then, of course, delivery by him cannot be necessary, for it is not practicable, and it would seem, therefore, that such an acceptance must be irrevocable. Certainly it would be so after any holder had received the assurance of it, and was justified in regarding the bill as an accepted one, and as his property.(w) The acceptance of a bill payable so many days after sight takes effect from its date, and not from the time of presentment, nor does the doctrine of relation apply in such cases; and in the computation of the time the day of the date is excluded.(x)

(s) Grant v. Austen, 3 Price, 58; New York & Virginia State Bank v. Gibson, 5 Duer, 574. See, contra, Corser v. Craig, 1 Wash. C. C. 424.

(1) We are not aware that this precise question has been decided, but it would seem to follow from the principles stated in the text. See Carnegie v. Morrison, 2 Met. 381. (u) Cox v. Troy, 5 B. & Ald. 474.

(v) Thornton v. Dick, 4 Esp. 270; Tummer v. Oddie, cited 6 East, 200. See Bentinck v. Dorrien, id. 199; Raper v. Birkbeck, 15 id. 17.

(w) Grant v. Hunt, 1 C. B. 44.

(z) Mitchell v. Degrand, 1 Mason, 176.

1

SECTION II.

PROMISE TO ACCEPT.

THE question has frequently arisen, under what circumstances a promise to accept is equivalent to an acceptance. The general principles which determine the answer to this question are these. On the one hand, it must frequently happen in mercantile business that persons who are arranging for a future transaction, and seeking to ascertain what security or what resources they may have, inquire whether certain bills which enter into the arrangement are to be accepted, and, learning that they are to be so, rely upon them in a way which would make disappointment disastrous. But, on the other hand, they must, at their own peril, discriminate between answers or statements which merely give information, and those which constitute or imply a definite promise. For it is only upon this last class of statements that the law authorizes them to rely, on the ground that a refusal of the law to recognize and enforce such promises would be very embarrassing to mercantile business. Between these two classes of cases it may sometimes be difficult to discriminate, and this difficulty may sometimes appear to give to the law an uncertainty which belongs to the fact.

The law of England on this subject seems to differ somewhat from the law of America. In the former country it was for some time uncertain whether a parol promise to accept a non-existing I bill was valid as an acceptance under any circumstances; but the later authority is that it is not so valid. (y) Nor would a

(y) The case of Pillans v. Van Mierop, 3 Burr. 1663, has been cited as authority for the doctrine that a parol promise to accept a bill to be drawn was a valid acceptance, yet it is doubtful whether it sustains it. It is authority to show that there may be an acceptance before the bill is drawn, and it is not clear what else it actually decides. In Pierson v. Dunlop, Cowp. 571, the qualification is added, that a written promise must be accompanied by circumstances which might induce a third party to take the bill. Mason v. Hunt, 1 Doug. 296, and Miln v. Prest, 4 Camp. 393, adopt similar views. In Johnson v. Collings, 1 East, 98, the point actually decided was, that a parol promise, where no third party was induced thereby to take the bill, was not binding as an acceptance. The language used by Lord Kenyon in his decision is, however, general; "that a promise to accept a bill before it is drawn is not equally binding as if made afterwards." The decision in the Bank of Ireland v. Archer, 11 M. & W. 383, is, that a parol promise to accept is not an acceptance, even where the holder discounted

written promise to accept such a bill now be held equivalent to acceptance in any case, the terms of the statute 1 and 2 Geo. IV. c. 78, of course precluding all question as to inland bills.(z) A parol promise to accept an existing foreign bill is still considered equivalent to an acceptance, (a) and the same must be true of a written promise, which will enure to the benefit of the holder, even if made after the maturity of the bill, and though he was not induced thereby to take it.(b) The promise may be given to the drawer, or to any other party to the bill after it has been indorsed away, or to a person by whose direction and on whose account the bill was drawn, though not a party to it. (c) And it seems to be regarded as so entirely the equivalent of a regular acceptance, that the drawer cannot revoke it, even with the consent of the promisee, though no party to the bill had notice of the acceptance. (d)

In America there appears to be a conflict of authority as to whether a parol promise to accept a bill to be drawn is equivalent to acceptance. On principle, we should say that it ought not to be so considered; (e) but, adopting the language of Marshall, C. J., in the case in which the Supreme Court of the United States unanimously determined the limitations to the rule, we should state it to be the rule of American law, that a written promise to accept a non-existing bill, made within a reasonable time before the date of the bill, describing it in terms not to be

the bill on the faith of such promise. The language of Baron Parke is likewise general, and it seems to be admitted that the decision would have been the same had the promise been written. See the opinion of eminent English counsel in Russell v. Wiggin, 2 Story, 213.

(2) "No acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or, if there be more than one part of such bill, on one of the said parts."

(a) Mendizabal v. Machado, 6 Car. & P. 218, affirmed 3 Moore & S. 841; Pierson v. Dunlop, 2 Cowp. 571; Miln v. Prest, 4 Camp. 393.

(b) Wynne v. Raikes, 5 East, 514; Clarke v. Cock, 4 id. 57; Powell v. Monnier, 1 Atk. 611.

(c) Grant v. Hunt, 1 C. B. 44; Fairlee v. Herring, 3 Bing. 625, 11 J. B. Moore, 520. (d) Grant v. Hunt, 1 C. B. 44.

(e) Kennedy v. Geddes, 8 Port. Ala. 263. In Williams v. Winans, 2 Green, N. J. 339, a parol promise to accept a bill to be drawn was held valid, and in Bank of Michian v. Ely, 17 Wend. 508, 510, Nelson, C. J. said, that it was well settled that "a parol promise to accept a future bill was not binding, unless the bill was taken by the holder uyon the faith and credit of such promise," referring to Ontario Bank v. Worthington, 12 Wend. 593.

mistaken, is, if shown to one who takes it on the faith of such writing, a virtual acceptance. (f) It seems also that the bill should be payable on demand, or at a fixed time after date, and not after sight, so that there may be a certain time from which the days are to be counted.(g)

(f) So held in Coolidge v. Payson, 2 Wheat. 66, 2 Gallis. 233. See also Schimmelpennich v. Bayard, 1 Pet. 264; Boyce v. Edwards, 4 id. 111; Wildes v. Savage, 1 Story, 22; Russell v. Wiggin, 2 id. 213; Bayard v. Lathy, 2 McLean, 462; Storer v. Logan, 9 Mass. 55; Carnegie v. Morrison, 2 Met. 381; Kennedy v. Geddes, 8 Port. Ala. 263, 3 Ala. 581; Carrollton Bank v. Tayleur, 16 La. 490; Vance z. Ward, 2 Dana, 95; Parker v. Greele, 2 Wend. 545, 5 id. 414. In Boyce v. Edwards, 4 Pet. 111, a letter written two years before the bill was drawn, and not referring to that particular bill, was held no acceptance. In Wilson v. Clements, 3 Mass. 1, two years intervened between the promise and drawing the bill, and it was held no acceptance on that account. The bill must be taken on the credit of the promise. M'Evers v. Ma son, 10 Johns. 207; Ontario Bank v. Worthington, 12 Wend. 593. In Read v. Marsh, 5 B. Mon. 8, the language is somewhat ambiguous, but it is conceived that the court did not intend to lay down the rule, that a promise to accept a future bill, not taken on the credit of the promise, operated as an acceptance. In Goodrich v. Gordon, 15 Johns. 6, a letter containing the following instructions from the owner of a vessel to the master," You will endeavor to ransom the vessel as low as possible, not to exceed $2,000, your draft on me will be honored," was held tantamount to the acceptance of a bill subsequently drawn for that amount. In Parker v. Greele, 2 Wend. 545, the terms of the letter were, "I have no objection to accepting for you at three and four months." This was held to authorize a draft for the whole sum at four months, and the holder was allowed to recover without showing what the terms proposed were, or that they were complied with. This case was affirmed in 5 Wend. 414, by a vote of 14 to 8. There was a disagreement as to the burden of proof with regard to showing what the terms were, and a compliance with them. Also some of the Senators held that there should have been two bills drawn, one at three and the other at four months, each for half the whole amount. It was also thought that the promise did not come within the rule, that the bill should be drawn in terms not to be mistaken. In Bank of Michigan v. Ely, 17 Wend. 508, the words of the letter were: "You can make drafts on me due in August next, to the amount of $ 10,000. Make them in sums of $1,000 each, and spread the time of their payment through the month." Only five bills were drawn. The holder took drafts on the faith of the letter, and sued the defendant as acceptor. The letter was treated as an acceptance. In Ulster Co. Bank v. McFarlan, 5 Hill, 432, the letter contained the following: "I hereby authorize you to draw on me at ninety days, from time to time, for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed $3,000." This was held to be a sufficient promise, although it will be seen that the bills were not specified, either as to number, amount, or date. In a subsequent suit between the same parties, 3 Denio, 553, it appears to have been conceded by the counsel that there was an acceptance, but Senator Hand in a dictum denied this, stating that "the promise must point to the particular bills, and describe them in terms not to be mistaken." Senators Spencer and Talcott affirmed its correctness.

(g) Wildes v. Savage, 1 Story, 22 In this case Story, J. said: "It does not appear to me that the doctrine ever was applicable, or could be applied, to any bills of exchange, except such as were payable on demand, or at a fixed time after date.