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drawn directing the drawee to pay "without acceptance." Such an instrument is still a bill of exchange, (c) and it has been said. that these words merely permit the holder to make no present. ment for acceptance until the bill has become payable.(d) It may be, however, that such words are used to insure the holder against any ill effect of want of presentment for acceptance. It has been said, also, that these words would exempt the drawer from liability to pay merely on non-acceptance, leaving him liable, of course, on non-payment.(e)

There is a class of cases in which the act of drawing itself constitutes acceptance; as where a person draws a bill upon himself; (f) or does not address it to any one; (g) or where a partner draws, in his own name, upon the firm of which he is a member for partnership purposes; (h) or where a bill is drawn by an officer of a corporation, legally authorized so to do, on the corporation. (i) Such instruments are, however, in legal effect promissory notes.

If a party accepts a bill in which no drawee is named, and there is nothing in the bill to indicate that the party accepting is not the drawee, this acceptance operates, generally at least, as an admission by him that he is the drawee. We should say that the bill should then be considered complete, and he be held

ing the latter to apply to the drawee for the assignment of certain funds. The holder, if the bill was received for a sufficient consideration, has an interest in this authority, - not merely in the proceeds of the bill, but in the bill itself (see the distinction taken by Marshall, C. J., in Hunt v. Rousmanier, 8 Wheat. 201); and the rule is, that an authority coupled with an interest is irrevocable.

(c) And may be so described in an indictment for forgery. Queen v. Kinnear, 2 Moody & R. 117. In Miller v Thomson, 3 Man. & G. 576, such an instrument was declared on as a promissory note; but in that case the bill was drawn upon a jointstock bank by the manager of one of its branch banks.

(d) Queen v. Kinnear, 2 Moody & R. 117.

Sed quære.

Ostler, 1 Man. & R. 120

(e) Maule, J., Miller v. Thomson, 3 Man. & G. 576, 579. (f) Cunningham v. Wardwell, 3 Fairf 466; Roach v. See Hasey v. White Pigeon B. S. Co., 1 Doug. Mich. 193. (g) See Dougal v. Cowles, 5 Day, 511; Marion, &c. R. Co. v. Hodge, 9 Ind. 163. (h) Dougal v. Cowles, 5 Day, 511. See Miller v. Thomson, 3 Man. & G. 576. (i) Hasey v. White Pigeon B. S. Co, 1 Doug. Mich. 193; Miller v. Thomson, 3 Man. & G. 576 Such an instrument is a clear acknowledgment of an indebtedness, and may be the foundation of an action. Marion, &c. R. Co. v. Hodge, 9 Ind. 163. It must be presented in a reasonable time for payment. Marion, &c. R. Co. v. Dillon, 7 id.

404.

Contra, Fairchild v. O. C. & R. R. Co., 15 N Y. 337. The declaration in an action against the corporation must allege that the orders had been presented for pay ment. Marion, &c. R. Co. v. Lomax, 7 Ind. 648; Marion, &c. R. Co. v. Dillon, id. 404

liable as an acceptor.(j) If there is no date to an acceptance, the presumption of law is that it was accepted before due, and whoever asserts that the acceptance was after maturity must prove it. This presumption would rest on the course of business, as making this usual and actually probable, and also on the principle that the instrument becomes thereby more perfectly what it purports to be, a regularly negotiated bill of exchange.

But although every acceptance is presumed to have been made within a reasonable time after the date of the bill, and before it falls due,(k) yet it is not invalid because made after maturity. The acceptor, in such case, is liable to pay on demand, and if the declaration states the acceptance to be "according to the tenor and effect" of the bill, these words are consid ered surplusage.(!) Acceptance may also be made after a previous refusal to accept ; (m) but it has been held that, if the holder of a bill payable a certain number of days after sight elects to consider what passes on presentment as a refusal to accept, and protests the bill, he is bound by such election as to the other parties to the bill; and if he neglects to give them notice of dishonor, they are discharged, although the drawee retracts his refusal the next day, and accepts.(n) An accept

(j) Gray v. Milner, 3 J. B. Moore, 90; Regina v. Hawkes, 2 Moody, C. C 60; Wheeler v. Webster, 1 E. D. Smith, 1. There hardly seems to be sufficient reason for the remark of Patteson, J., Davis v. Clarke, 6 Q. B. 16, that this decision " goes to the extremity of what is convenient." Considerable doubt has also been thrown upon this point by the case of Peto v. Reynolds, 9 Exch. 410. But the objections are hardly satis factory. It is said in Gray v. Milner, supra, that, the bill being addressed to the inhabitant of a particular house, the defendant's acceptance was conclusive evidence that he lived in that house, and consequently the drawer was induced to look no further. But why may not the acceptance be as well conclusive evidence that the acceptor was the party intended to be drawn upon, and thereby the drawer was induced to look no further? The objection, that, if such an instrument was presented to two or more acceptors, each of whom promises to pay, there would be some doubt as to which was the acceptor, is likewise unsatisfactory. It would be clearly the first, and the names of subsequent acceptors would be mere surplusage, as in the bill where a drawee was named. With regard to the case of Regina v. Hawkes not being entitled to the same weight of authority as a decision pronounced in the presence of the public, it might be suggested that certainty is much more requisite in an indictment for forgery than in a declaration in a civil suit.

(k) Roberts v. Bethell, 12 C. B. 778.

(1) Jackson v. Pigott, 1 Ld. Raym. 364; Mutford v. Walcot, id. 574; Stein v. Yglesias, 1 Cromp. M. & R. 565; Billing v. Devaux, 3 Man. & G. 565; Christie od. Pearl, 7 M. & W. 491.

(m) Wynne v. Raikes, 5 East, 514.

(n) Mitchell v. Degrand, 1 Mason, 76.

VOL. I.-T

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. Penick, 5 T. B. Mon. 25. In Montague . 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, 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 o. Hunt, 1 C. B. 44.

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

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 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 Microp, 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 prom. ise, 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

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