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CHAPTER
XIII.

Meaning of the word.

Liability of drawee before acceptance.

What will amount to an

Acceptance of Foreign
Bill

A Promise to pay

To whom it may be made
Is irrevocable

Cancellation by the Holder 198

Security by Specialty

Pleading

What Acceptance admits

Where Drawee precluded

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ACCEPTANCE, in its ordinary signification, is an engagement by the drawee to pay the bill when due (a), in money (b).

Before acceptance the drawee is not liable to the holder (c).

(a) Clark v. Cock, 4 East, 72. (b) Russell v. Phillips, 19 L. J., Q. B. 297; 14 Q. B. 891, S. C.

(c) See Frith v. Forbes, 31 L. J., Chane. 793; 32 L. J., Chanc. 10, S. C.

CHAPTER
XIII.

An instrument drawn by A. upon B., requiring him to pay to the order of C. a certain sum at a certain time "without acceptance," is still a bill of exchange, and may A draft dispensing be so described in an indictment for forgery (d).

with acceptance.

A bill is often by the acceptor made payable at a banker's. Liability of a By such a direction on a bill the banker incurs liabilities to his customer, and may incur a liability to the holder.

banker at whose
bank a bill is
made payable
by the acceptor.

customer.

We have already seen that, without acceptance, a banker Liability to the may be liable to his customer, if, having sufficient funds, he neglect to pay his checks. So a banker, at whose house a customer accepting a bill makes it payable, is liable to an action at the suit of that customer, if he refuse to pay it, having at the time of presentment funds sufficient, and having had those funds a reasonable time, so that his clerks and servants might know it (e).

Yet if he do pay a holder whose title depends on a forged indorsement, he cannot charge his customer with the payment (ƒ). But it has been said by the Court of Exchequer Chamber, that he is protected if he pay any one who can give a valid discharge (g). Yet, notwithstanding this, it may well be doubted whether, in the case of a bill made or become payable to bearer, he is in as good a situation as an ordinary transferee, whose title is not affected by mere negligence. For the banker, as agent for the customer, undertakes to conduct himself with reasonable care. An honest but negligent payment, which may entitle the banker to the bill as against the true owner, may be insufficient to enable him to charge his customer.

Where a bill is accepted payable at a banker's, though Liability to a money had been remitted by the acceptor to the banker for holder. the express purpose of paying the bill, the banker is not liable to the holder in an action for money had and received, unless he have assented to hold the money for the purpose for which it was remitted (h). But where there is anything in the conduct or situation of the banker which amounts to

(d) Miller v. Thomson, 3 M. & G. 576; Reg. v. Kinnear, 2 M. & Rob. 117.

(e) See Whitaker v. The Bank of England, 6 C. & P. 700, and 1 C., M. & R. 744; 1 Gale, 54, S. C.; Rolin v. Steward, 14 C. B. 595; Robarts v. Tucker, 16 Q. B.

560.

(f) Robarts v. Tucker, 16 Q. B. 560.

(g) Ibid.

(h) Williams v. Everett, 14
East, 582; Yates v. Bell, 3 B. &
Ald. 643; Wedlake v. Hurley, 1
C. & J. 83.

CHAPTER
XIII.

By whom it may be accepted.

Not by a series of acceptors.

an assent to hold the remittance upon trust to discharge the bill, he is liable to the holder (i).

A bill can only be accepted by the drawee (k), and not by a stranger, except for honour (7). Where, indeed, the bill was not addressed to any one, but only indicated the place of payment, the acceptor was held liable as having admitted himself to be the party pointed out by the place of payment (m). But this decision goes to the very verge of the law (n).

If the drawee be incompetent to contract, as, for example, by reason of infancy or coverture (o), the bill may be treated as dishonoured.

We have already seen (p) that one partner may, by his acceptance, bind his co-partners. But, if a bill be drawn upon several persons not in partnership, it should be accepted by all, and, if not, may be treated as dishonoured (q). Acceptance will, however, be binding upon such of them as do accept (r).

There cannot be two or more separate acceptors of the same bill not jointly responsible. A. refused to supply B. with goods, unless C. would become his surety. C. agreed to do it. Goods to the value of 1571. were accordingly sold by A. to B. For the amount A. drew on B., and the bill was accepted both by B. and C., each writing his name on it. Lord Ellenborough: "If you had declared that, in consequence of A. selling the goods to B., C. undertook that the bill should be paid, you might have fixed C. by this evidence. But I know of no custom or usage of merchants according to which, if a bill be drawn upon one man, it may be accepted by two; the acceptance of the defendant is contrary to the usage and custom of merchants. A bill must be accepted by the drawee, or,

(i) De Bernales v. Fuller, 14 East, 590, n.; 2 Camp. 426; and see the observations of Abbott, C. J., on this case, in Yates v. Bell, 3 B. & Ald. 643.

(k) Nichols v. Diamond, 9 Exch. 157. Unless he have recognized the acceptance as his. See Lindus v. Bradwell, 5 C. B. 583.

(1) Polhill v. Walter, 3 B. & Ad. 114; 1 L. J., K. B. 92; Eastwood v. Bain, 28 L. J., Ex. 74; 3 H. & N. 738, S. C.; Davis v. Clarke, 13 L. J., Q. B. 305; 6 Q. B. 16, S. C.; see Jenkins v.

failing him, by some one for

Hutchinson, 18 L. J., Q. B. 274; 13 Q. B. 744, S. C.

(m) Gray v. Milner, 8 Taunt.

739.

(n) See the observations of Patteson, J., in Davis v. Clarke, supra, and of Martin, B., in Peto v. Reynolds, 9 Exch. 410.

(0) Chit. 9th ed. 283.
(p) Chapter II.

(4) Mar. 16; Dupays v. Shepherd, Holt's R. 297; Marius, 64.

(7) B. N. P. 270; Bayley, 58; Owen v. Von Uster, 10 C. B. 318; Nichols v. Diamond, 9 Exch. 154.

the honour of the drawer. There cannot be a series of acceptors. The defendant's undertaking is clearly collateral, and ought to have been declared upon as such" (s). But, although there can be no other acceptor after a general acceptance of the drawee, it is said that, when a bill has been accepted supra protest, for the honour of one party, it may, by another individual, be accepted supra protest, for the honour of another (t). We shall, hereafter, consider the subject of acceptance supra protest in a distinct Chapter. A bill may, as we have seen (u), be addressed to the drawer himself and accepted by him; but it is then rather a promissory note than a bill of exchange.

up.

CHAPTER
XIII.

We have already seen that the signature of a drawer, WHEN. maker, or indorser, on a blank form, delivered to be filled Before bill filled up as a negotiable instrument, will bind them respectively; so an acceptance, written on the paper before the bill is made, and delivered by the acceptor, will also charge the acceptor to the extent warranted by the stamp (x). It is not even necessary that the bill should be drawn by the same person to whom the acceptor handed the blank acceptance (y). And where a blank acceptance was filled up after the lapse of twelve years, and, as the jury found, after the lapse of a reasonable time, the acceptor was held liable to a bona fide indorsee (z). But it is conceived that the case of a blank acceptance not delivered at all, but lost or stolen, at least without any negligence of the writer, is distinguishable (a).

(8) Jackson v. Hudson, 2 Camp.

447.

(†) Jackson v. Hudson, 2 Camp. 447, n.; Beawes, 42.

(u) Chapter VII.

(a) Though the bill be antedated, Armfield v. Armport, 27 L. J., Exch. 42; and in America, where there is no stamp, the amount for which the blank may be filled up is unlimited. Byles on Bills, 5th American edition, p. 307. No debs hell del

(y) Schultz v. Astley, 2 Bing. N. C. 544; 2 Scott, 815; 1 Hodges, 525; 7 C. & P. 99, S. C. The acceptor is estopped as against a transferee for value to deny the regularity of the acceptance. In America it is held, that if the blank paper come into the hands of a holder without notice, he may fill

up the blank with a larger sum
than the original holder was au-
thorized to insert. See Byles on
Bills, 5th American edition, p.
308.

(z) Montague v. Perkins, 22
L. J.. C. P. 188.

(a) See the question put by Cresswell, J., to counsel in Montague v. Perkins, 22 L. J., C. P. 189, to which the answer of ounsel does not appear satisfactory. See, however, the observa

Xounsel does not appear satisfac

In so Nayward

tions of the Court of C. P. 4/6

Ingham v. Primrose, 28 L. J.,
C. P. 295; 7 C. B., N. S. 82, S. C.
Perhaps the obligation created by
blank makings, acceptances and
indorsements of bills, checks or
notes depends on the principle of
estoppel, and not on any pecu-
liarity of negotiable paper.

On

Cha: Caps 546

CHAPTER
XIII.

Not before the bill is in existence.

An acceptance for value, before the bill is filled up, is irrevocable. Notice that the acceptance was in blank should put the holder on inquiry (b).

It was formerly held (in cases where an acceptance in writing on the bill was not necessary), that a promise to accept, given before the bill was made, amounted to an acceptance. Thus, a promise by the defendants, that they would accept such bills as the plaintiff should, in about a month's time, draw on the defendant for 8007., has been held an acceptance of such bill subsequently drawn (c). But it was said that a subsequent holder could not avail himself of such an engagement, unless it was communicated to him at the time he took the bill. "A promise to accept," says Gibbs, C. J., "not communicated to the person who takes the bill, does not amount to an acceptance; but, if the person be thereby induced to take a bill, he gains a right equivalent to an actual acceptance, against the party who has given the promise to accept" (d). But it is now settled that there cannot be an oral acceptance of a non-existing bill (e), although the bill be discounted by the drawer on the faith of a promise to accept (f). It has been decided, since 1 & 2 Geo. 4, c. 78, that an acceptance may be written before the bill is drawn, though that statute makes it essential to the acceptance of an inland bill, that it should be in writing on such bill; and it will be no variance, though the declaration state the drawing to have been first and the acceptance afterwards (g).

this ground it is put by Lord Mans-
field in Russell v. Lanstaffe, and
by Lord Chief Justice Tindal in
Schultz v. Astley, ubi supra; but
see the observations of Williams,
J., in Ex parte Swann, 7 C. B.
447, and Martin, B., and Channell,
B., in Swan v. North British
Australian Company, 31 L. J.,
Exch. 435. On the question
whether the principle of estoppel
can be applied to a deed improperly
filled up, the Courts of Common
Pleas and of Exchequer were
equally divided. Ibid. In the
Exchequer Chamber it was held
that it could not. 32 L. J., Exch.
273.

(b) Hatch v. Searles, 2 Sm. &
G. 147; 24 L. J., Ch. 22, S. C.

(c) Pillans v. Van Mierop, 3 Burr. 1663; Pierson v. Dunlop,

Cowp. 571; Mason v. Hunt, Doug. 284, 287.

(d) Milne v. Prest, 4 Camp. 393; Holt, N. P. 181, S. C., evidently an inaccurate report in Holt, see 11 M. & W. 390; Johnson v. Collings, 1 East, 98.

(e) Johnson v. Collings, 1 East, 98; Bank of Ireland v. Archer, 11 M. & W. 383. But in general this is otherwise in America. Byles on Bills, 5th American edition, p. 309, et seq. (f) Ibid.

(g) Molloy v. Delves, 7 Bing. 428; 5 M. & P. 275; 4 C. & P. 492, S. C. And it is probable the same interpretation will be put on the present act 19 & 20 Vict. c. 97, which requires the signature of the acceptor.

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