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upon an (27) executed consideration, or if it (28) influence any person to take or retain the bill, is where 1 & 2 Geo. 4. c. 78. s. 2. does not apply a complete acceptance as to the person to whom the promise is made in the one case, and the person influenced in the other, and as to all the subsequent parties in each.
merchants a good acceptance;" but by Lord Mansfield in Peach v. Kay, in sittings after Trinity Term, 1781. "It was held by all the judges that an express refusal to accept, written on the bill, where the drawee apprized the party who took it away what he had written, was no acceptance; but if the drawee had intended it as a surprize upon the party, and to make him consider it as an acceptance, they seemed to think it might have been otherwise.
(27) Vide Pillans v. Van Mierop, ante, p. 132.
(28) Vide Pierson v. Dunlop, and Mason v. Hunt, ante, p. 132.
Clarke and others v. Cock, 4 East's Rep. 57. Woodward authorized the defendant to receive certain African bills, of which he sent him a list, and apprized him that he had drawn upon him for the amount. The defendant, by letter, acknowledged the receipt of the list, and assured Woodward that the bills he had drawn on him "should meet with due honour." The plaintiffs, who were Woodward's bankers, and greatly in advance to him, having refused to give him further credit, he indorsed to them the bills which he had so drawn upon the defendant, and at the same time either communicated the purport of the defendant's letter or else represented his having made an absolute promise to accept, but did not shew the letter itself: and the plaintiffs, on the faith of defendant's promise, advanced to Woodward the full amount of the bills. The defendant afterwards wrote to Woodward, that the African bills had been attached, and Woodward in answer desired them to refuse acceptance of the bills drawn on him. The defendant did in fact receive the amount
But a promise to accept a bill to be afterwards drawn, is (29) no acceptance of the bill when drawn unless some person be thereby (30) induced to take or retain the bill; and indeed it may be doubted, whether in any case, a promise to accept
of the African bills before the bills drawn on him became due; but this amount was afterwards attached in his hands, and upon that attachment he paid over the money so received. This action was brought against the defendant as acceptor of the bills drawn by Woodward; a verdict was found for the plaintiffs, subject to the opinion of the court. The court held that this was a good acceptance, and that the subsequent circumstances had not done it away; and therefore awarded the postea to the plaintiff. Lawrence, J. said the defendant might have resisted the attachment on the ground of his acceptances, which would have been a defence to him.
(29) Johnson v. Collings, 1 East's Rep. 98. Collings owed Ruff 231. 10s. 6d. Ruff applied for payment, and Collings said that if Ruff 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 Colling'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 were 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.
(80) Vide Pierson v. Dunlop, and Mason v. Hunt, ante, p. 133. and Johnson v. Collings, supra.
a non-existing bill, would (31) now be considered as an acceptance of the bill when drawn.
And a promise to accept, made upon an executory consideration, is in no case (32) binding so long as such consideration remains executory, unless it influence some person to take or retain the bill.
A promise in a letter that a bill then drawn (33) "shall meet with due honour; or that the writer will (34) "accept or certainly pay” it, is, where 1 & 2 G. 4. c. 78. does not apply, an acceptance.
(31) Vide Johnson v. Collings, ante, p. 144. n. (29).
(32) In Pillans v. Van Mierop, ante, p. 132. n. (3). Burr. 1666. Lord Mansfield says, "It was argued upon at the trial, that this imported to be a credit given to the plaintiffs in prospect of a future credit to be given by them to White, and this credit might well be countermanded before the advancement of any money, AND THIS IS SO."
(33) See Clarke v. Cock, ante, p. 143. n. Dunlop, ante, p. 132. n. (3).
(28), and Pierson v.
On 9th Nov. 1801,
(34) Wynne v. Raikes, 5 East's Rep. 514. Brown in America, drew on the defendants in London, a bill for 500l. at sixty days after sight; and on the same day wrote to them, that he had valued on them for 5,5487. by divers bills, of which he requested their acceptance. The bill for 500l. which was one of those bills, was indorsed by the payees to the plaintiffs in London, for a valuable consideration. On 2d Jan. 1802, the plaintiffs, on receiving the bill, presented it for acceptance, which was refused. On 13th January, 1802, the defendants wrote to Brown, stating, that as their prospects of security had improved, they would "accept or certainly pay all the bills which had then appeared." The bill for 500l. had so appeared. This letter was received by Brown in America on 19th March, 1802. The plaintiffs presented the bill for payment on 6th March, sixty-three days after the presentment
And this, although the letter was not received until (35) after the bill had become due; and although no person has been (35) induced by such promise, to take the bill.
But to make a promise, in a letter to the drawer, where the bill is payable to a third person, amount to an acceptance, it ought to be in terms which do not admit of doubt. (36)
An answer in reply to a letter of advice from the drawer desiring it may be honoured, that the bill shall have attention, will not, in general, amount to an acceptance. (36)
And it will make no difference though this answer is communicated to an indorsee before he takes the bill. (36)
for acceptance, and on payment being refused, brought this action on the bill. At the time when the bill was drawn, Brown was indebted to the defendants, and still continued to be so, to the amount of 5,000l. A verdict was found for the plaintiffs subject to the opinion of the Court of King's Bench. The court held that the case of Powell v. Monnier was in point; that this was a good acceptance. Postea to the plaintiffs.
(35) See Wynne v. Raikes, preceding note.
(36) Rees v. Warwick, 2 Barnew. 113. 2 Stark. 411. Action against defendant as acceptor of a bill drawn by Denison and Co., to the order of Johnson and Co., dated 3d May; 4th May, Denison and Co. wrote to defendant, "We yesterday valued on you, favour Johnson and Co. for 100%., which please to honour:" defendant answered, "Your bill 1007. &c. shall have attention." This letter was shewn by Denison and Co. to Johnson and Co., and by them before he took the bill to plaintiff; it was insisted this amounted to an acceptance: Bayley J. thought not; but it being suggested that in the
But if, by the course of dealing between the parties, these words are considered as an accept= ance, they will have that effect.
So in cases not within 1 & 2 G. 4., a verbal promise to accept, though the party expressly defer a written acceptance, as where he says, "Leave the bill and I will accept it," is a (37) complete acceptance. And a verbal promise to accept a returned bill when it shall come back, is binding (38) if it do come back.
Saying, "Send the bill to my counting house, and I will give directions for its being accepted," is not of itself an acceptance; the bill must be sent to the counting house. (39)
dealings between these parties, these words had that meaning; other letters from defendants were read in evidence, but they did not prove the point: the jury intimated their opinion that these words, per se, did not amount to an acceptance; and nonsuit, with liberty to plaintiff to move to enter a verdict; motion accordingly; but the court were also of opinion that these words by no means imported an unequivocal acceptance of the bill, and as the jury were of that opinion in this case, the nonsuit was right.
(37) D. Molloy, B. 2. c. 10. § 20. Mar. 2d ed. 17.
(38) Cox v. Coleman, ante, p. 134. note (6).
(39) Anderson v. Hick, 3 Campb. 179. Acceptance being refused by the drawees, the holder remonstrated with the managing partner, who said, "If you will send it to the counting house again, I will give directions for its being accepted." In an action against the drawees as acceptors, it was urged that without proof of the bill's being again sent to the counting-house, this answer was an acceptance. Sed per Lord Ellenborough, it was only a conditional promise to accept, and could not operate as an acceptance till the bill was sent back.