Imágenes de páginas

at any time before five o'clock in the evening of the day on which it is drawn.

An acceptance to pay when remitted for, is (46) a conditional acceptance.

So an answer by a drawee who lived in London, that a ship was consigned to him and a person in Bristol, and that till he should know to which port the ship would come he could not accept, connected with a subsequent answer that the bill was a good one, and would be paid though the ship should be lost, was (47) held a conditional acceptance

[ocr errors]

(46) Banbury v. Lissett, Str. 1211. The drawee accepted a bill "for Lissett and Galley, of Leghorn, to pay as remitted from thence at usance,” and it was objected, in an action against him, that there was no evidence to shew he had a remittance, and that his acceptance was conditional only. Lee C. J. declared he so understood it; but he left it to the jury, and they found for the defendant upon another point, and gave no opinion upon this.

(47) This was the case of Sproat v. Matthews, 1 Term Rep. 182. The ship did arrive at London, and the defendant disposed of the cargo; but it appearing that upon the defendant's answer that the bill would be paid though the ship should be lost, the plaintiff noted the bill for non-acceptance, Buller J. held that the acceptance was conditional only, and that the noting shewed the plaintiff did not choose to take it, and he directed a nonsuit; and upon a rule to shew cause why there should not be a new trial, the court, viz. Willes, Ashhurst, and Buller, Js. concurred that the acceptance was conditional only, but Willes J. thought if there were a doubt whether it was conditional, or whether the plaintiff had precluded himself from insisting upon it, all the facts should have been left to the jury, and he was therefore of opinion that the nonsuit should be set aside; but the other judges thought differently, and the rule was dis

only; it being clear that the drawee looked for an opportunity of reimbursing himself, and had three events in contemplation,-the ship's arrival at Bristol, her arrival at London, and her loss; in the two latter he should have the opportunity, and therefore accepted; in the former he should not, and did not accept.

But an answer by the drawee, that he would pay if I. S. would not, but that he must first apply to him, not that he thought he would pay, but because he judged it right to put him to the trial, with an assurance to the holder that he might rest satisfied of the payment, was, before 1 and 2 G. 4. held (48) an absolute acceptance.

(48) Wilkinson v. Lutwidge, Str. 648. Two bills drawn on the defendant were sent to him by the plaintiff's agent for acceptance, and he wrote for answer, "The two bills which you sent me, I will pay if the owners of the Queen Anne do not: and they living in Dublin must first apply to them: I hope to have their answer in a week or ten days. I do not expect they will pay them, but I judge it proper to take their answer before I do, which I request you will acquaint Mr. Wilkinson with, and that he may rest satisfied of the payment." He afterwards wrote, "I have not had an opportunity of sending the bills to the owners of the Queen Anne, but will take the first opportunity, and shall then remit to the gentlemen concerned, according to my promise." One of the bills he paid, but being sued upon the other, he contended that his acceptance was conditional only, to pay if the owners of the Queen Anne did not; but Raymond C. J. held it an absolute acceptance, and that the attempt to procure payment from the owners of the Queen Anne was to be made by him, and was wholly for his benefit and accommodation, but that the plaintiff was to have his money at all events. The jury found accordingly for the plaintiff.

If a man purposes making a conditional acceptance only, and commits that acceptance to writing, he should be careful to express the conditions therein; for it may at least be doubted whether parol evidence of such conditions would be admissible; if it were, the onus of proving them would be upon the acceptor, and the proof would be of no avail if the holder, or any person under whom he claims, took the bill without notice of such con ditions, and gave a valuable consideration for it.

A conditional acceptance becomes absolute, as soon as its conditions are performed.

Thus an answer by the drawee, that he could not accept until a navy bill should be paid, was thought (49) to operate as an absolute acceptance upon the payment of the navy bill.

So an answer that the bill would not be accepted till certain goods against which it was drawn arrived, was held virtually an acceptance when they did arrive, and were received, (50)

(49) Pierson v. Dunlop, ante, p. 132.

(50) Miln v. Prest, Holt, 181. 4 Camp. 393. Indorsee against defendant as acceptor, and question whether what defendant had written or said amounted to an acceptance. The drawer bought wheat for defendant, and in a letter to him defendant said he would accept bills for it when they received notice that the wheat was shipped; this letter had been shewn to plaintiff, (before he took the bill;) when the bill was presented for acceptance, defendant said he would not accept till the wheat arrived; the wheat afterwards arrived, and defendant accepted it and sold it; Gibbs C. J. was clear that the letter would have been no acceptance, had it not been shewn to plaintiff; but he

But if the drawee says he cannot accept without further directions from I. S., and I. S. afterwards desires him to accept, and draw upon A. B. for the amount, the (51) mere drawing upon A. B. will not make this an acceptance, although the actual payment of the bill upon him may.

An acceptance varying from the tenor differs from it either in the (52) sum, the (53) time, the (54) place, or (55) mode of payment.

said a conditional acceptance was valid if the conditions were performed; this wheat arrived, and defendant had it and sold it; and he was clear what defendant had done was equivalent to an acceptance, and verdict for plaintiff.

(51) Smith and another v. Nissen and another, 1 Term Rep. 269. Taubert ordered goods of the defendants, and desired them to draw on the plaintiffs for the amount, which they did; the plaintiffs wrote two letters to the defendants, one saying they could not accept, because the defendants had sent more goods than were ordered, but that they had written to Taubert for further directions; the other saying they had written to Taubert and were waiting his answer before they could accept, but had desired the holder to keep the bill; in the mean time, Taubert desired the Plaintiffs to accept, and draw on Goverts for the amount; they accordingly drew on Goverts, who refused to accept, and upon that they paid the bill for the honour of the defendants, and brought an action against them for money paid; the plaintiffs had a verdict, but the defendants moved for a new trial, on the ground that the drawing on Goverts was an acceptance of the bill drawn by the defendants. Sed per cur. What the plaintiffs did, did not amount to an acceptance, for they never meant to make themselves liable, unless the bill they drew was accepted and paid, and a rule was refused.

(52) Vide Wegersloffe v. Keene, ante, p. 135. note (9). (53) Vide Walker v. Atwood, ante, p. 136. note (9). Paton v. Winter, 1 Taunt. 420. The drawee altered the time of payment of a bill from one month to two, and accepted it;

The effect of accepting a bill in such way as to make it payable at a bankers, or elsewhere than at the drawee's residence or place of business, (56) has of late been matter of great controversy and difference of opinion, but the point is now settled by 1 and 2 G. 4. c. 78. (57)

By that statute, if the acceptance merely makes it payable at a particular house, without any further expression in such acceptance, it is to be deemed a general acceptance. (57)

If it make it payable at that house only, a qualified one. (57)

Though any acceptance varying from the tenor bind the person making it, the holder of a bill is

the holder kept it the two months and then presented it for payment; the court held that this was an acquiescence in the alteration, and the holder having brought an action on the case against the acceptor for having mutilated the bill, they directed a nonsuit.

(54) Bishop v. Chitty, and Smith v. De la Fontane, post. (55) Vide Petit v. Benson, ante, p. 136. note (9).

(56) See post.

(57) By 1 and 2 G. 4. c. 78. After 1st August, 1821, if any person shall accept a bill of exchange, payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill; but if the acceptor shall in his acceptance express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be a qualified acceptance of such bill, and the acceptor shall not be liable to pay the said bill, except in default of payment when such payment shall have been first duly demanded at such banker's house or other place.

[ocr errors]
« AnteriorContinuar »