in regular course of business, before acceptance. The defendant accepted the bill without consideration from the drawer. The plaintiff is entitled to recover.1

Besides undertaking to pay, the acceptor admits,' as a legal incident to his contract, the existence of the drawer, the Incidents of genuineness of the drawer's signature, and his acceptance. capacity and authority to draw the bill, and also the existence of the payee and his capacity at the time to indorse. It will be necessary to consider this subject more fully in another chapter.3

Cannot be revoked.

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Acceptance once given is irrevocable and conclusive, in the absence of fraud. It cannot be withdrawn on the ground of mistake; for instance on the drawee's discovering that he was not indebted to the drawer. Even in case of fraud (unless in esse contractus') it could not be withdrawn against a holder in due course. And like the maker of a promissory note, the acceptor of a bill of exchange is bound to pay without any demand; unless his acceptance is so qualified in terms as to require demand as a condition to his liability."

1 Foot v. Carter, 152 Mass. 34; Arpin v. Owens, 140 Mass. 144; Ameri can Bank v. Gluck, 68 Minn. 129; Heurtematte v. Morris, 101 N. Y. 63; Webster v. Howe, 54 Conn. 394. 'It is immaterial when an acceptance is made; it may be made at any time, and the rights of the payee and of indorsees are the same after it is made whether they were acquired in anticipation of it or subsequent to it.' Arpin v. Owens, supra.

2 N. I. L. § 69.

8 Chapter XVI, on Absolute Defences.

4 Grumback . Hirsch, 17 Texas Civ. Ap. 618; Tile Co. v. Bank, 23 Atl. Rep. 423; Hoffman v. Bank, 79 U. S. 181. The rule appears to be otherwise in regard to the certification of a cheque. Irving Bank v. Wetherald, 36 N. Y. 335. So held too of payment of cheques under mistake in regard to funds. Merchants' Bank v. Eagle Bank, 101 Mass. 281, 285. Compare London Bank v. Bank of Liverpool, 1896, 1 Q. B. 7.

See p. 205.

Sed qu.

• Steiner v. Jeffries, 118 Ala. 573. Presentment for acceptance pertains only to the contract of the drawer or indorsers, and hence will be considered in another place.

required: oral

Acceptance proper is signified by writing, upon the bill of exchange; in no other way can the order be fully satisfied, without the consent of the holder. In other words the How signified: order gives the holder, by the law merchant, writing may be the right to insist upon written acceptance upon acceptance. the bill. The Statute, which so declares, is only an affirmation of the law as it stood before. The result is, that the holder may treat the bill as dishonored if such acceptance is refused," though acceptance in some other way is offered.

Indeed no other kind of acceptance received by the holder of a negotiable bill would bar the right of later holders to require acceptance proper. Subsequent holders would have the same right to insist upon acceptance on the bill that the first holder had, unless limited by contract or assent in some other way. It has sometimes been laid down that acceptance may be oral as well as written; but that does not mean that oral acceptance has the same effect as acceptance written on the bill. Thus an oral acceptance of a bill of exchange may indeed be binding in favor of an indorsee of the person to whom it was given; but where that is true, it is because of the indorsee's right to elect to treat the oral promise as sufficient, and not because he was bound as indorsee to receive the oral acceptance in lieu of acceptance on the bill.

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before bill is

Acceptance on the bill may be signified before the drawer has signed the instrument, or while it is otherwise incomplete; also when the bill is overdue or even after it has been Acceptance dishonored by a refusal to accept or by non-pay- completed: ment. If however a bill payable after sight should overdue bill. be dishonored by non-acceptance and afterwards accepted, the holder, unless there should be some other understanding, would 1 N. I. L. § 140.

2 Id.

* Putnam Bank v. Snow, 172 Mass. 569: 'It is clear that, in the absence of any statute to the contrary, an oral acceptance of an existing bill of exchange is valid in this country, and that an indorsee of a bill so accepted may maintain an action on such acceptance against the acceptor.' Morton, J., citing several Massachusetts cases, and also Coolidge v. Payson, 2 Wheat. 66; Townsley v. Sumrall, 2 Peters, 170; Spaulding v. Andrews, 48 Penn. St. 411; Bissell v. Lewis, 4 Mich. 450; Nelson v. First National Bank, 48 Ill. 36.

be entitled to have the acceptance relate to the time of the first presentment to the drawee.1

The drawee has, under the Statute, twenty-four hours' time after presentment for deciding whether he will accept; the acceptance however dating back, if given, to the day of the presentment. All this probably applies to a second presentment, that is, after a refusal, as well as to the first.

Time for decision as to acceptance.

If the drawee's agent accepts for the drawee, his acceptance should show that it is on behalf of the drawee and should purAcceptance port in terms to bind him. External evidence by agent. would not be received to disclose the agency. For example: Office of Portage Lake Manufacturing Co., Hancock, Mich., June 5th, 1861.

E. T. Loring, Agent, 39 State St., Boston.

At four months' sight pay to the order of J. H. Slawson, four hundred dollars, and charge the same to this company.

[Signed] I. R. JACKSON, Agt.,'

and accepted across the face, 'E. T. Loring, Agent,' binds Loring personally, and evidence of his agency will not be received."

How acceptance is signified.

Apart from statute written acceptance may be made in any way and anywhere, if upon the bill or upon a paper annexed, so long as there is an intention to accept. There are in use, however, certain brief modes of acceptance by which, because they conform to recognized custom, the law understands the intention directly, as much so as if the drawee were to write out in full and sign his undertaking to pay the bill at maturity. In these cases the intention to accept is fixed by the particular act; no different intention can be shown, unless, indeed, by fraud and mistake, or perhaps by mis2 Id. § 143.

1 N. I. L. § 145.

Slawson v. Loring, 5 Allen, 340. 'Being negotiable paper, all evidence dehors the draft is to be excluded. It is wholly immaterial therefore that the defendant was in fact the agent of the company named on the face of the draft, that the plaintiff knew that he was so, and that the defendant had no per Bonal interest in the company.'

take without fraud, the alleged acceptor was led to signing one instrument when he supposed he was signing another.1 The customary modes of acceptance thus recognized by law are the following: Writing the word 'accepted,' or writing the name of the drawee, or any substitute for his name, upon the face of the bill; either of these alone, written by the drawee or by his agent, has a fixed meaning in law, to wit, acceptance.2

There are other modes of writing on the bill, by the drawee, which, though they have not the force of recognized custom, but still apparently signify acceptance, are deemed presumptively to be a manifestation of intention to accept; that is, they are deemed prima facie acceptance. The commonest of these are the following: Writing upon the bill 'presented,' or 'seen,' or the day of the month; these or any other words written by the drawee, which are consistent with the idea of acceptance, are held to amount to acceptance unless they are shown to have been written with a different intention.

The Statute however, like previous legislation in some of the States, requires the signature of the drawee.*

§ 2. KINDS OF ACCEPTANCE (PROPER).

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Acceptance on the bill may be general or qualified. General acceptance is an assent to the order without qualification; as for instance by the mere signature of the drawee, General acceptor adding to the signature a particular place of ance: qualified payment, if such place be not designated as the acceptance. only place of payment." A qualified acceptance varies, in

1 Compare Foster v. Mackinnon, L. R. 4 C. P. 704; indorsement procured by fraud as to the instrument. Such cases must be distinguished from fraudulent representations in regard to the consideration.

2 See Spear v. Pratt, 2 Hill, 582.

See Spear v. Pratt, supra. It has been held that a signature of the drawee following the words, 'Paid on this order forty dollars,' amounts to an acceptance of the whole. Peterson v. Hubbard, 28 Mich. 197. But see Cook v. Baldwin, 120 Mass. 317; Bassett v. Haines, 9 Cal. 261.

4 N. I. L. § 139: The acceptance must be in writing and signed by the drawee.' The drawee's signature alone would satisfy the Statute. Spear v. Pratt, supra.

N. I. L. § 146.

6 Id. § 147.

2

terms, the effect of the order; as for instance by designating a particular place of payment as the only place of payment,' or by making payment otherwise conditional, or by restricting the sum payable, or the time of payment, or by being the act of but one or more of the drawees when there are two or more drawees.5 The Statute mentions no other instance of qualified acceptance; whether the enumeration is intended to be complete, so as to exclude all else, may however be doubted. If the holder may elect to receive any of the designated kinds of qualified acceptance, it is not unreasonable to suppose that he may receive others.

General accept

It should be noticed, as has been intimated already, that the holder is not bound to receive a qualified acceptance; he may insist upon acceptance according to the order, that ance may be is, general acceptance, and if the drawee refuses required. treat the bill as dishonored. It should also be noticed that as a qualified acceptance is not a compliance with the order, the drawer and any indorsers of the bill at the time, not having assented, are no parties to the qualified undertaking; and the order itself having failed, they are discharged." Still if they authorized the qualified acceptance, or if they afterwards assented to it, they will be bound accordingly, that is, according to the qualified acceptance.

Assent of other

The drawer and indorsers are deemed to assent to a qualified acceptance, if, having received notice from the holder that such an acceptance has been received, they do not exparties to quali- press their dissent within a reasonable time. All fied acceptance. parties subsequent to the qualified acceptance assent, of course, to it. The qualities of the instrument are not affected by the qualified acceptance otherwise than as has been indicated; and what has been said applies both to the unwritten law merchant and to the Statute.