acceptor of a bill. Peto v. Reynolds, 9 Exch. 410. To be operative at all, as a contract, it must be as a promissory note. It was said in Edis v. Bury, 6 B. & C. 433, by Lord Tenterden, that, "where a party issues an instrument of an ambiguous nature, the law ought to allow the holder, at his option, to treat it either as a promissory note or a bill of exchange." In that case the instrument was in the form of a promissory note, but had been accepted by a person whose name had been written on the corner of the paper at which the name of the drawee of a bill is usually placed. The maker, being sued, contended that he was discharged for want of notice of dishonor as drawer of a bill. The court decided otherwise. To the same effect is the decision in Lloyd v. Oliver, 18 Q. B. 471. It has been repeatedly held that, where the drawer and drawee of an instrument in the form of a bill of exchange are the same person, it may be declared on as a promissory note. Miller v. Thomson, 3 Man. & Gr. 576; Allen v. Sea Assur. Co., 9 C. B. 574; Fairchild v. Ogdensburgh, etc., Railroad, 15 N. Y. 337, 69 Am. Dec. 606. The reason is obvious. The drawer of a bill on another assumes only a conditional liability. His contract is that he will pay if duly notified of dishonor of the draft; but when the drawer is the drawee too, such notice would be an empty form, and his undertaking is not conditional, but absolute. The doctrine of the cases cited above on this point is recognized and approved in Commonwealth v. Butterick, 100 Mass. 12.

In view of the foregoing authorities, there seems to be no injustice in holding that an instrument in the form of that sued on is to be regarded, in passing upon the rights of the signer and the payee, as a promissory note. The signer, having made the instrument in the form of a bill of exchange, but without addressing it to any one as drawee, may properly be held to have intended to assume the absolute liability to pay, which he would have assumed if he had addressed the instrument to himself. Any other view makes the instrument valueless. It does not contain anything which informs the payee what is to be done in order to fix the liability of the signer. If the undertaking of the signer is not absolute, it is nothing. * *

*

We are of the opinion that the instrument sued on was in legal effect a promissory note, and that, being duly attested, action on it was not barred by the statute of limitations.

Exceptions overruled.87

87 Accord: Didato v. Coniglio, 50 Misc. Rep. 280, 100 N. Y. Supp. 466 (1906); Funk v. Babbitt, 156 Ill. 408, 410, 41 N. E. 166 (1895). In the latter case the court said: "Said instruments were declared on as promissory notes. It is urged that they are not notes, or even promises to pay, and, not being directed to any one, do not constitute drafts or orders, and in fact amount to no more than blank pieces of paper. They are, undoubtedly, very irreg ular and informal instruments; but they are not void as written evidences of indebtedness. A person may draw a bill upon himself, payable to a third person, in which case he is both drawer and drawee. Here the firm drew bills, but did not address them to any third person or persons, and it 13 therefore to be regarded that they were in legal effect addressed to them

selves, as drawees, and the signatures of the firm to the several bills bound the firm both as drawers and acceptors. The instruments are inland bills of exchange, to which the firm sustains the triple relation of drawers, drawees and acceptors, and, as the declaration contains the consolidated common counts, the bills were admissible in evidence under them. Moreover, the drawers and drawees being the same, the bills are, in legal effect, promissory notes, and may be treated as such, or as bills, at the holder's option. 1 Daniel on Neg. Inst. §§ 128, 129."

A bill was drawn upon the defendant, who accepts it by indorsement in this manner: "I do accept this bill to be paid, half in money and half in bills." And the question was whether there could be a qualification of an acceptance; for it was alleged, that his writing upon the bill was sufficient to charge him with the whole sum. But 'twas proved by divers merchants, that the custom among them was quite otherwise, and that there might be a qualification of an acceptance, for he that may refuse the bill totally, may accept it in part; but he to whom the bill is due may refuse such acceptance, and protest it so as to charge the first drawer; and tho' there be an acceptance, yet after that he hath the same liberty of charging the first drawer, as he before had.

BOEHM v. GARCIAS.

(Nisi Prius, before Lord Ellenborough, C. J., 1807. 1 Campb. 425, note.) Action on a bill drawn on Lisbon, "payable in effective and not in vals reals." The defendant was the drawer of the bill; and the question was, whether it had been dishonored for nonacceptance? The drawees offered to accept it, payable in vals denaros, another sort of currency, which was refused. The defendant now proposed to show that vals denaros was sufficient to answer what was meant by effective. But,

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. Therefore, without considering whether a payment in denaros might not have satisfied the term "effective," an acceptance to pay in denaros was not a sufficient acceptance of a bill drawn payable in effective. The drawees ought to have accepted generally, and an action being brought against them on the general acceptance, the question would properly have arisen as to the meaning of the term.

HALSTEAD v. SKELTON.

(Court of Exchequer Chamber, 1843. 5 Q. B. 86.)

Assumpsit. The first count of the declaration stated that William Harland, on, etc., made his bill of exchange in writing, and directed the same to defendant, and thereby required defendant to pay to the order of the said W. H. the sum of £66. 11s. for value received, four months after the date thereof, which period had elapsed, etc., "and the defendant then accepted the said bill, payable at Messrs. Cunliffe & Co.'s, bankers, London." Averment that W. H. indorsed to plaintiff, and that defendant "then promised the plaintiff to pay her the said bill according to the tenor and effect thereof, and of the said acceptance and indorsement."

The defendant demurred, assigning, as a ground, that, although it appears by the first count that the bill therein mentioned was specially accepted by the defendant, and by him made payable at Messrs. Cunliffe & Co.'s, bankers, London, yet it is not averred, nor does it appear from the said count, that the said bill was ever presented at Messrs. Cunliffe & Co.'s for payment, according to the terms of the said acceptance. Another ground assigned was, that the defendant was not stated to have had notice of the indorsement.

On motion in the bail court, in Trinity term, 1842, the demurrer was set aside as frivolous (Skelton v. Halstead, 2 Dowl. P. C. [N. S.] 69); and the plaintiff afterwards signed judgment by default. The defendant then brought error in the Exchequer Chamber, assigning, as error, "that the first count of the said declaration, and the matters therein contained, are not sufficient in law for the said M. S. to have or maintain her aforesaid action," etc. Joinder in error.1

TINDAL, C. J. This was an action by the indorsee of a bill of exchange against the acceptor. The declaration stated the bill to have been accepted payable at a particular banker's in London, and did not aver any presentment at the house of that banker; and the question. argued before us was, whether the omission of such an averment made the declaration bad. The plaintiff in error contended that it did, for that, since the statute 1 & 2 Geo. IV, c. 78, an acceptance payable at a banker's generally without restrictive words, is a general acceptance, and ought to be so pleaded; whereas, by declaring, as in this case, on an acceptance payable at a bankers, the plaintiff must be understood as referring to an acceptance payable at a banker's only, and not elsewhere. And, if the plaintiff in error is right in this proposition, it must certainly follow that the declaration is bad for not averring performance of what, according to his argument is a condition precedent to any right of action, namely, a presentment at the banker's.

But we are of opinion that the argument of the plaintiff in error cannot be supported.

1 The arguments of counsel are omitted.

SM.& M.B.& N. (2D ED.)-13

The statute enacts that, where a bill is accepted payable at a banker's, without further expression in the acceptance, such acceptance shall be deemed and taken to be to all intents and purposes a general acceptance of such bill; but the meaning of this enactment is, not that, in such a case, presentment at the banker's shall be an invalid presentment, but that, in an action against the acceptor, presentment to him shall be good, and consequently that it shall be unnecessary to present or to aver presentment at the banker's. A bill of exchange drawn generally on a party may be accepted in three different forms; either generally, or payable at a particular banker's, or payable at a particular banker's and not elsewhere. If the drawee accepts generally, he undertakes to pay the bill at maturity when presented to him for payment. If he accepts payable at a banker's, he undertakes (since the statute) to pay the bill at maturity when presented for payment either to himself or at the banker's. If he accepts payable at a banker's and not elsewhere, he contracts to pay the bill at maturity provided it is presented at the banker's but not otherwise.

Here the bill was accepted according to the second of these three forms, i. e., payable at a banker's, without any restrictive words; so that presentment at the banker's (though if made it would have been. a good presentment) was yet not, as against the acceptor, necessary. Acceding, therefore, as we do, to the argument of the plaintiff in error, that the bill must be taken to have been pleaded according to its legal effect, we do not go along with him in the conclusion at which he arrives. For the reasons which we have given, we do not think that, in this case, the legal effect of the bill, as pleaded, was to render necessary any presentment at the banker's; and the judgment of the court below will therefore be affirmed. Judgment affirmed.

PECK v. COCHRAN.

(Supreme Judicial Court of Massachusetts, 1828. 7 Pick. 34.) Assumpsit on an order, dated April 1, 1821, payable at sight, drawn by the deputy Postmaster General of the United States, at Washington, upon the defendant, who was postmaster at Watertown, in this state, in favor of the plaintiffs.

At the trial before Parker, C. J., it appeared that the plaintiffs sent the bill for collection to S. Burt, who delivered it to J. Sawyer, with directions to call on the defendant and demand payment. Sawyer testified that in the early part of May he presented the bill for acceptance and payment; that the defendant said he did not think the money was due to the government; that the witness pressed him to pay the bill; that the defendant refused to pay then, but said he would answer it at the commencement of the next quarter, which would be in about 60 days. The witness did not agree to wait, but told the defendant he