ist, By whom to be accepted.

nour of the drawer, &c.; and therefore, if a bill of exchange be accepted by the drawee, another person who, for the purpose of guaranteeing his credit, likewise accepts the bill in the usual form, is not liable as an acceptor'; and unless the consideration of his engagement be expressed on the face of the instrument, it is questionable whether he would be liable in any form of action 2.

The act of one partner, as has been before shewn', being considered as the act of both, acceptance by one for himself and partner, or in the name of the firm, will in general be a compliance with the request of the drawer; but if the bill be drawn on two, not being partners, and it be only accepted by one, it should be protested. The competency of the contracting parties in general having been already stated3, it will be unnecessary here to make any observations relative to the capacity of the acceptor: it may, however, be observed, that if the holder find that the drawee is an infant, feme covert, or otherwise incapable of contracting, he may treat the bill as dishonoured.

'Jackson v. Hudson, 2 Campb. 447. This was an action on a bill drawn by the plaintiff on I. Irving, and accepted by him, and under his acceptance, the defendant wrote "accepted, Jos. Hudson," payable at, &c. The defendant was sued as acceptor. The plaintiff offered to prove that he had had dealings with Irving, and had refused to trust him further, unless the defendant would become his surety; and the defendant, in order to guarantee Irving's credit, wrote this acceptance on the bill. Lord Ellenborough said, that this was neither an acceptance by the drawce or by any person for the honour of the drawer; that the defendant's undertaking was collateral, and ought to have been declared on as such. See also Clark v. Blackstock, 1 Holt, C. N. P. 474. and ante, 135, n. 1. See observations on this point, Manning's Index, 63.

2 Id. ibid. Wain v. Walters, 5 East. 10.-Manning's Index, 63.— Sed vide Ex parte Gardom, 15 Ves. 286.-Morris v. Stacey, Holt, C. N. P. 153.

3 Ante, 39 to 52.

Dupays v. Shepherd, Holt, 297.-Bull. Ni. Pri. 279 In the case of two joint traders, an acceptance by one will bind the other, but if ten merchants employ one factor, and he draw a bill upon them all, and one accept it, this shall only bind him and not the rest. Vide also Marius, 2d edit. 16.-Beawes, pl. 228.-Molloy, b. 2. c. 10. s. 18--Bayl. 74.

Ante, p. 18 to 26,

time it may be

A bill, on presentment for acceptance, must be ac- 2dly, At what cepted by the drawee within twenty-four hours, or in made. default thereof, it is liable to be, and indeed, should be treated as dishonoured'. This space of time we have seen is allowed the drawee to give him an opportunity of examining into the accounts between himself and the drawer; if, however, the drawee refuse to accept within the twenty-four hours, it is not incumbent on the holder to wait till the expiration of them, but he may instantly consider the bill as dishonoured 3,

The very term acceptance seems to suppose a preexisting bill, and it appears to be now questionable, whether in any case an acceptance can be made before the bill is drawn, and at most the engagement can only be available in favor of a party who has, on the faith of it, given credit on the bill; for, though in Pillans v. Van Mierop, it was held, that a promise by the defendant, "to accept such bills as the plaintiff "should, in about a month's time, draw upon the de"fendant, upon the credit of a third person," (for whose accommodation the plaintiff had already ac

'Ante, 212, 13, in notes.-Ingram v. Forster, 2 Smith's Rep. 243, 4. Ante, 212, 13.

2

Johnson v. Collings, 1 East. 105.-Milne v. Prest, 4 Campb. 393. 1 Holt, C. N. P. 181.-Bayl. 79, 8o.

Pillans v. Van Mierop, Burr. 1663. See this case observed upon in Pierson v. Dunlop, Cowp. 573.-Johnson v. Collings, 1 East. 105. Clarke v. Cock, 4 East. 70.

Pillans and another v. Van Mierop, Burr. 1663. White drew on the plaintiffs at Rotterdam for £800, and proposed to give them credit upon the defendant's house in London; the plaintiffs paid White's bill, and wrote to the defendants to know, "whether they would accept such bills as they (the plaintiffs) should draw in about a month upon them for £800, on White's credit." The defendants answered that they would; but White having failed before the month elapsed, the defendants wrote to the plaintiffs not to draw. The plaintiffs did, however, draw, and on the defendants' refusal to pay the bills, brought this action. The jury found a verdict for the defendants; but, upon an application for a new trial, as upon a verdict against evidence, and two arguments upon it, the court was unanimous that the defendants' letter was a virtual acceptance of such bills as the plaintiffs should draw, to the amount of £800; and the rule was made absolute. See also Mason v. Hunt, Dougl. 297.

2dly. At what time it may be made.

cepted bills,) amounted to an acceptance; yet Lord Mansfield afterwards, in the case of Pierson v. Dunlop', qualified the doctrine laid down in the above case, and observed, that "a promise to accept such a bill, did not amount to an acceptance, unless accompanied with circumstances which might induce a "third person to take the bill by indorsement;" and Lord Kenyon, C. J. in Johnson v. Collings, observed, that "he thought, that the admitting a promise to accept, before the existence of the bill, to operate as an "actual acceptance of it afterwards, even with the qualification last mentioned, was carrying the doc"trine of implied acceptances to the utmost verge of the law; and he doubted, whether it did not even go beyond the proper boundary." And in the last case it was established, that a mere promise, by a debtor to his creditor, that if he would draw a bill upon him for the amount of his demand, he should then have the money, and would pay it, does not amount in law to an acceptance of the bill when drawn, and that an indorsee for a valuable consideration, between whom and the drawee no communication passed at the time of his taking the bill, can neither recover upon a count in the declaration upon the bill as accepted, nor on the general count for money had

46

1 Pierson v. Dunlop, Cowp. 573.-Johnson v. Collings, 1 East. 106. n. a. S. P.-Clarke v. Cock, 4 East. 70.

2 Johnson v. Collings, 1 East. 98. Collings owed Ruff £23. 10s. 6d. Ruff applied for payment, and Collings said, that if he would draw for it at two months he would pay it. Ruff drew accordingly, and indorsed the bill to the plaintiff, but did not mention to him Collings's promise. The plaintiff now sued Collings, on the ground that his promise to Ruff was virtually an acceptance. But Le Blanc, J. thought, that as it was not made to a third person, nor with circumstances which might induce a third person to take the bill, it was no acceptance, and nonsuited the plaintiff. On a rule nisi for a new trial, and cause shewn, the whole court thought it no acceptance; and Lord Kenyon thought, that the admitting a promise to accept, made before the existence of the bill, to operate as an actual acceptance of it afterwards, even though a third person was thereby induced to take the bill, was carrying the doctrine of implied acceptances to the utmost verge of the law, and he doubted, whether it did not go beyond the proper boundary. Rule discharged.

time it may be

and received'. In a more recent case at nisi prius it 2dly. At what was decided by Gibbs, C. J. that a promise to accept made. a bill of exchange, in a letter written before the bill is drawn, can only be taken advantage of as an acceptance by a person to whom the letter was communicated, and who took the bill upon the credit of it2. Therefore, where a person has, for a sufficient consideration, engaged in writing, or in some cases even verbally, to accept a bill, thereafter to be drawn, such promise will not be negotiable; and the action for the breach thereof must be brought in the name of the person to whom the promise was made, and the declaration should be special, founded on the agreement. Although it has never been expressly decided, that the mere writing a name at the bottom of a blank piece of paper will have the operation of an acceptance, yet it may be inferred that it will have the same effect; it having been decided that an indorsement written on a blank stamp, will afterwards bind the indorser for any sum and time of payment which the stamp will admit, and which the person to whom he intrusts it chooses to insert; and that a person signing his name to a blank paper, and delivering it to another person, for the purpose of drawing a bill in such manner as he should choose, was bound by such signature as a drawer.

'Johnson v. Collings, 1 East. 98.-Clarke v. Cock, 4 East. 70.Wynne v. Raikes, 5 East. 514. S. P.

Milne. Prest, 4 Campb. 393.-1 Holt, C. N. P. 181. It was insisted that the following letter, written by the defendant before the bill was drawn, amounted to an acceptance:-" We acquit you of buying wheat instead of oats; we will however accept the bills for the wheat when we receive notice of its being shipped." The case of Johnson v. Collings was cited, for the defendant, to shew that a promise to accept a bill not in existence, was not binding. Per Gibbs, C. J. You are within that case, unless they show that the letter was communicated to the plaintiff, and that he received the bill with a knowledge. A promise to accept 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.

'Russel v. Langstaff, Dougl. 514.-Powell v. Duff, 3 Campb. 182. ante, 160.

*Collis v. Emmett, 1 Hen. Bla. 313. ante, 160.

2dly. At what time it may be made.

An acceptance being an absolute undertaking to pay, may be made even after the time appointed by the bill for payment', and even after a prior refusal to accept, so as to bind the acceptor, though it would discharge the drawer and indorsers, unless duc notice of the prior non-acceptance, or of non-payment at the time the bill became due, were given; and in such case, the acceptor would be liable to pay the bill on demand; though in pleading his liability may be stated to have been to pay according to the tenor and effect of the bills. It has been observed", that the drawce, although he have effects of the drawer's, ought not to accept bills, after he is aware of the failure of the drawer, because after that event, one creditor of the drawer ought not to be paid in preference to another. But, payments made to a bankrupt without knowledge of his being so, are protected by the 1st Jac. 1. c. 15. s. 14,; and as an acceptance of a bill for a precedent debt, has always been deemed a payment in satisfaction, provided the bill be honoured when due, there is no doubt, and

Per Lord Ellenborough, C. J. in Wynne v. Raikes, 5 East. 521.— Jackson v. Pigot, Ld. Raym. 364.—Salk. 127.-Carth. 450.-12 Mod. 212. In an action against the acceptor of a bill, the declaration stated, that it was dated 25th March, 1696, payable one month after date, and that in April, 1697, it was shewn to the defendant, and he promised to pay it according to its tenor and effect. After verdict for the plaintiff it was moved in arrest of judgment, that the promise was void, because, as the day of payment was past at the time of ac ceptance, it was impossible to pay the bill according to its tenor and effect; but it was answered for the plaintiff that it amounted to a promise to pay generally, and the court being of that opinion gave judgment for the plaintiff. Mitford. Walcot, Ld. Raym. 574.— Salk. 129.-12 Mod. 410.-Gregory . Walcup, Com. Rep. 75, to the same effect.-Beawes, pl. 224.-Bayl. 76.-Selw. N. P. 4th edit.

312. n. 21.

66

Wynne. Raikes, 5 East. 514. The defendants having previously refused to accept, afterwards wrote to the drawers a letter, stating our prospect of security is so much improved, that we shall accept or certainly pay all the bills which have hitherto appeared,” was held to amount to an acceptance. See post.

3 Mitford v. Walcot, 12 Mod. 410.

4 See cases in note 1.

5 Id. ibid.

Poth. pl. 95, et vide Pinkerton v. Marshall, 2 Hen. Bla. 334. and cases there cited.