SPEAR & PATTEN v. PRATT.

IN THE SUPREME COURT, NEW YORK, MAY, 1842.

[Reported in 2 Hill, 582.]

ASSUMPSIT, tried at the Onondaga Circuit, in September, 1841, before Moseley, C. J. The action was against the defendant, Frederick Pratt, as acceptor of a bill of exchange, payable to the order of the plaintiffs. The defendant's name was written across the face of the bill; and the question was, whether this was such an acceptance as is required by the statute. It was admitted that the defendant, at the time of the acceptance, was a resident of this State. His counsel insisted at the trial that the acceptance was insufficient to charge him; but the circuit judge, being of a different opinion, directed the jury to find for the plaintiffs, which they accordingly did; and the defendant's counsel, having accepted, now moved for a new trial upon a bill of exceptions.

A. Taber, for the defendant.

B. D. Noxon, for the plaintiffs.

By the Court, COWEN, J. Any words written by the drawee on a bill, not putting a direct negative upon its request, as "accepted,' "presented," "seen," the day of the month, or a direction to a third person to pay it, is prima facie a complete acceptance by the lawmerchant. Bayley on Bills, 163 (Am. ed. of 1836), and the cases there cited. Writing his name across the bill, as in this case, is a still clearer indication of intent, and a very common mode of acceptance. This is treated by the law-merchant as a written acceptance, a signing by the drawee. "It may be," says Chitty, "merely by writing the name at the bottom or across the bill;" and he mentions this as among the more usual modes of acceptance. Chitty on Bills, 320 (Am. ed. of 1839).

It is supposed that the rule has been altered by 1 R. S. 757 (2d ed.), § 6. This requires the acceptance to be in writing, and signed by the acceptor or his agent. The acceptance in question was, as we have seen, declared by the law-merchant to be both a writing and signing. The statute contains no declaration that it should be considered less. An indorsement must be in writing, and signed; yet the name alone is constantly holden to satisfy the requisition. No particular form of expression is necessary in any contract. The customary import of a word, by reason of its appearing in a particular place, and standing in a certain relation, is considered a written expression of intent quite as full and effectual as if pains had been taken to throw it into the most

labored periphrase. It is said the revisers, in their note, refer to the French law as the basis of the legislation which they recommended; and that the French law requires more than the drawee's name, the word "accepted," at least. That may be so; but it is enough for us to see that both the terms and the spirit of the act may be satisfied short of that word, and more in accordance with the settled forms of commercial instruments in analogous cases. The whole purpose was probably to obviate the inconveniences of the old law, which gave effect to a parol acceptance. New trial denied.1

1 Kaufman v. Barringer, 20 La. An. 419; Peterson v. Hubbard, 28 Mich. 197; Wheeler v. Webster, 1 E. D. Sm. 1, accord.

Hindhaugh v. Blakey, 3 C. P. D. 136, contra. In the latter case, Denman, J., who delivered the opinion of the court, said: "Before the statute of 1 & 2 Geo. IV. c. 78, § 2, it was not necessary that a bill should be accepted by any writing upon the bill itself; it was sufficient if in any other document the acceptor used language showing his intention to be bound by the bill as acceptor. Wynne v. Raikes. It was also sufficient before that statute if the drawee verbally undertook to pay an existing bill. Lumley v. Palmer, Powell v. Monnier. Disapprobation of the law as it then existed was expressed by very learned judges. See per Lord Kenyon in Johnson v. Collins, and per Lord Ellenborough in Clark v. Cock, 4 East, 72; and it was one of the particulars in which the English law was at variance with the law of Scotland.

"In the year 1821, it was enacted by 1 & 2 Geo. IV. c. 78, § 2, 'that no acceptance shall be sufficient to charge any person unless such acceptance be in writing on such bill.'

"Since this statute, it has been laid down by high authority that a mere signa ture on the face of the bill, without any words of acceptance, may be an acceptance in writing within the statute. Selw. N. P.(11th ed.), 348; Byles, Bills (12th ed.), 191; and, on the other hand, that words of acceptance without a signature, if intended as an acceptance, might suffice. Dufaur v. Oxenden. See also Corlett v. Conway, 5 M. & W. 655, per Parke, B.

"By 19 & 20 Vict. c. 97, § 6, it was enacted 'that no acceptance of any bill of exchange shall be sufficient to bind or charge any person, unless the same be in writing on such bill, and signed by the acceptor or some person duly authorized by him.'

"In the present case it was contended that, inasmuch as before the statute a mere signature would have been a sufficient acceptance in writing within 1 & 2 Geo. IV. c. 78, § 2, it was not the less so now; and that, inasmuch as it was a signature of the acceptor, the bill was both accepted in writing, and signed by the acceptor, within the meaning of the later enactment. But, looking at the history of the law and of the enactments on the subject, we are of opinion that the county-court judge was right in holding that the statute had not been complied with.

Comparing the words of the later statute with those of the former, we think it impossible that a mere signature of a name can be held to fulfil the double requirement that the acceptance shall be in writing on the bill, and signed by the acceptor. We therefore think that, upon the question submitted to us, the learned county. court judge was right."

The effect of Hindhaugh v. Blakey was immediately nullified by act of Parlia ment Infra, p. 186. —ED.

SECTION II.

An Acceptance must be in Writing on the Face of the Bill.

1704.

[3 & 4 Anne, c. 9, §§ 4, 5, and 8.]

AND whereas by an Act of Parliament made in the ninth year of the reign of his late Majesty, King William the Third, entitled an act for the better payment of inland bills of exchange, it is, among other things, enacted that, from and after presentation and acceptance of the said bill or bills of exchange (which acceptance shall be by the underwriting the same under the party's hand so accepting), and after the expiration of three days after the said bill or bills shall become due, the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the same bill or bills to be protested in manner as in the said act is enacted; and whereas, by there being no provision made therein for protesting such bill or bills, in case the party on whom the same are or shall be drawn, refuse to accept the same, by underwriting the same under his hand, all merchants and others do refuse to underwrite such bill or bills, or make any other than a promissory acceptance, by which means the effect and good intent of the said act in that behalf is wholly evaded, and no bill or bills can be protested before or for want of such acceptance by underwriting the same as aforesaid, for remedy whereof be it enacted by the authority aforesaid: That from and after the first day of May, which shall be in the year of our Lord one thousand seven hundred and five, in case, upon presenting of any such bill or bills of exchange, the party or parties, on whom the same shall be drawn, shall refuse to accept the same, by underwriting the same, as aforesaid, the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested for nonacceptance, as in case of foreign bills of exchange; any thing in the said act, or any other law to the contrary notwithstanding, for which protest there shall be paid two shillings, and no more.

Provided always, that from and after the said first day of May no acceptance of any such inland bill of exchange shall be sufficient to charge any person whatsoever, unless the same be underwritten or indorsed in writing thereupon; and if such bill be not accepted by such underwriting, or indorsement in writing, no drawer of any such inland bill shall be liable to pay any costs, damages, or interest thereupon, unless such protest be made for non-acceptance thereof, and within fourteen days after such protest the same be sent, or otherwise notice thereof be given to the party from whom such bill was received, or left in writing at the place of his or her usual abode; and if such bill be accepted, and not paid before the expiration of three days after the said bill shall become due and payable, then no drawer of such bill shall be compellable to pay any costs, damages, or interest thereupon, unless a protest be made and sent, or notice thereof be given, in manner and form above mentioned; nevertheless, every drawer of such bill shall be liable to make payments of costs, damages, and interest upon such inland bill, if any one protest be made of non-accept. ance or non-payment thereof, and notice thereof be sent, given, or left, as aforesaid.

Provided, that nothing herein contained shall extend to discharge any remedy that any person may have against the drawer, acceptor, or indorser of such bill.

LUMLEY v. PALMER.

IN THE KING'S BENCH, EASTER TERM, 1734.

[Reported in 2 Strange, 1000.1]

THE defendant was sued as acceptor of a bill of exchange. And upon the evidence it appeared to be a parol acceptance only, which the Chief Justice ruled to be sufficient, that being good at common law, and the Statute 3 & 4 Anne, c. 9, which requires it to be in writ ing in order to charge the drawer with damages and costs, having a proviso that it shall not extend to discharge any remedy that any person may have against the acceptor. Upon this direction, the jury found for the plaintiff. But the Chief Justice of the Common Pleas having lately ruled it otherwise in the case of Rea v. Meggott, the court was moved for a new trial. And, in order finally to settle this point, it was ordered to be argued; and after argument the court was of opinion that the direction in the present cause was right, and agreeable to constant practice, and therefore ordered the postea to the plaintiff.2

1 C. t. Hard. 74, s. c.- - ED.

2 " The court has not of late been very nice with regard to what shall be construed to be an acceptance. For though formerly it was held necessary that an acceptance should be in writing, yet of late years a parol acceptance has been deemed sufficient And, indeed, at present almost any thing amounts to an acceptance." Per Willes, J., in Sproat v. Matthews, 1 T. R. 185. Lord Ellenborough, Mr. Justice Lawrence, and Mr. Justice Le Blanc, in Clarke v. Cook, 4 East, 67, 72, 73, and Mr. Justice Holroyd, in Rees v. Warwick, 2 B. & Al. 116, expressed their regret that the doctrine of a verbal acceptance should have become established. See also Espy v. Cincinnati Bank, 18 Wall. 620; Pierce v. Kittredge, 115 Mass. 875. The prevalence of this anomalous doctrine is apparent from the following cases: Anon., 12 Mod. 375; Clavey v. Dolbin, C. t. Hard. 278; Cox v. Coleman, Bayley, Bills (6 ed.), 176; Wilkinson v. Lutwidge, 1 Stra. 648; Ereskine v. Murray, 2 Stra. 817; Julian v. Shobrooke, 2 Wils. 9; Sproat v. Matthews, 1 T. R. 182 (semble); Pierson v. Dunlop, Cowp. 571; Miln v. Prest, 4 Camp. 393; Mendizabal v. Machado, 8 M. & Sc. 841; Canepa v. Larios, 2 Knapp, 276; Scudder v. Un. Bank, 91 U. S. 406; Mason v. Dousay, 35 Ill. 424; Sturges v. Fourth Nat. Bank, 75 Ill. 595; Stockwell v. Bramble, 3 Ind. 428; Bird v. McElvaine, 10 Ind. 40; Miller v. Neihaus, 51 Ind. 401 (semble); Grant v. Shaw, 16 Mass. 341; Hough v. Loring, 24 Pick. 254; Ward v. Allen, 2 Met. 53; Wells v. Brigham, 6 Cush. 6; Pierce v. Kittredge, 115 Mass. 374, Williams v. Winans, 2 Green, 339; Edson v. Fuller, 22 N. H. 183; Barnet v. Smith, 30 N. H. 256; Walker v. Lide, 1 Rich. 249; Fisher v. Beckwith, 19 Vt. 31; Rutland Bank v. Woodruff, 34 Vt. 92; Arnold v. Sprague, 34 Vt. 402. The same cases show also that in the case of existing bills the inquiry whether the plaintiff took the bill in reliance upon a verbal promise to accept the same is irrelevant, for in all of them the promise to accept was made to the respective plaintiffs, after they became the holders of the bills declared upon. See, however, Overman v. Hoboken Bank. 80 N. J. 61, where it was held that a verbal promise to accept an existing bill would enure as an acceptance only in favor of one who took the bill on the faith of the promise. ED.

POWELL, SENIOR AND JUNIOR, v. ELIZABETH MONNIER, WIDOW AND EXECUTRIX OF JOHN MONNIER.

IN CHANCERY, BEFORE LORD HARDWICKE, C., MAY, 1737.

[Reported in 1 Atkyns, 611.]

THE plaintiffs, who were partners, the 3d of April, 1731, received a bill of exchange from Charles Newburgh, then dated and drawn on John Monnier for £50 to the plaintiffs or order, thirty days after date, indorsed by the plaintiffs, and negotiated by several persons; on the 15th of April, it came into the custody of Lavington and Paul of Exeter, merchants, who sent up to Monnier the bill of exchange; he received it, and kept it ten days before the same became due, without making any objection, and, whilst he had it in his hands, wrote on the left side of the top thereof, No. 84, and at the bottom the sixth of May, which the plaintiffs charged were the private mark or number of bills by him accepted, and intended to be paid, and upon the sixth of May, the time when payable, Monnier, on that day, sent it back to Lavington and Paul, and refused to accept it, or allow it as so much received by him on their account; whereupon Lavington and Paul demanded and received the £50 of the plaintiffs, who can have no satisfaction against Newburgh, he having become a bankrupt and insolvent, before the return of the bill.

The bill is therefore brought for £50 with interest due thereon; Monnier died after putting in his answer, and the cause has been revived against his executrix.

It was admitted that Newburgh acquainted Monnier by letter of his having drawn the £50 bill, and desiring him to accept and pay the same; to which Monnier, on the 13th of April, wrote a letter in answer, that the £50 bill should be duly honored, and placed to his debt.

It was insisted for the plaintiffs that if Monnier had not intended to accept and pay the bill, he should, according to the custom of merchants, have returned the same immediately to Lavington and Paul, whereby the plaintiffs might have got the £50 from Newburgh, who was then, and several days after, in good credit, and particularly in such credit with the defendant that, after the plaintiffs' bill came to his hands, Newburgh drew another bill of exchange on him for £18, three days after date, which was duly paid.

Mr. Fazakerly, who was counsel for the defendant, insisted that the suit here ought not to be proceeded upon any further, but should go off to a trial at law, as it is a mere legal question.