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entitled from the undertaking of the drawer and indorsers to expect an absolute acceptance by the drawee, (58) (or if there be several not connected in partnership by (59) each,) for the payment of the full (60) sum of money mentioned therein (61) according to its tenor, specifying (62) (if none be mentioned for the purpose) a place for its payment, and (63) expressing, if the bill be payable within a limited time after sight, the time of its presentment for acceptance; and may reject any other.
If upon the offer of any other acceptance the holder does any act expressing a refusal to take it, as if he gives notice to any of the antecedent parties generally that acceptance is refused, or notes the bill for non-acceptance, the offer (64) is not binding.
(58) Mar. 2d ed. 22.
(59) Molloy, B. 2. c. 10. § 18, 19. Mar. 2d ed. 16.
(60) Molloy, B. 2. c. 10. § 20. Mar. 2d. ed. 17. Beawes, § 218. p. 443.
(61) Molloy, B. 2. c. 10. § 28. Mar. 2d ed. 21. Beawes, § 221. p. 444.
See Boehm v. Garcias, 1 Campb. 425. where Lord Ellenborough held that the holder was not bound to take an acceptance to pay in a different kind of currency from that mentioned in the bill. (62) Mutford v. Walcot, Lord Raym. 575. per Holt C. J. "If a bill be payable at London, and the person on whom it is drawn accept it, but names no house where he will pay it, the party that has the bill is not bound to be satisfied with this acceptance."
(63) Beawes, p. 452. Where a bill is drawn payable at so many days' sight, the acceptance must express the day it is made. (64) Sproat v. Matthews, ante p. 153. note (47), and Bentinck v. Dorrien, post. p. 162. note (71).
There is a case (65) however in which it has been supposed to have been decided, that if the holder strikes out an acceptance which varies from the tenor of the bill, and substitutes an acceptance according to the tenor, he may afterwards restore the acceptance he struck out, and that such acceptance will continue binding, but it has (66) been doubted whether the determination went farther than to decide that the alteration in the acceptance (though it annulled the acceptance and discharged the acceptor) did not leave the bill in statu quo as to the other parties.
An alteration in a material point certainly vacates an acceptance. (67)
(65) Price v. Shute, Beawes, § 222. 1st ed. p. 444. Moll. B. 2. c. 10. § 28. A bill was drawn payable the 1st of January, and the drawee accepted it to pay the 1st of March: the holder struck out the 1st of March, and substituted the 1st of January, and sent the bill for payment on that day, which the acceptor refused the holder then struck out the 1st of January and restored the 1st of March, and in an action on this bill, the question was, Whether these alterations did not destroy the bill? And Pemberton, C. J. ruled that they did not.
(66) In Master v. Miller, 4 Term Rep. 330. Lord Kenyon, in commenting on the case of Price v. Shute, observes, that the books do not say against whom the action was brought; and it could not have been against the acceptor, because his acceptance was struck out by the party himself who brought the action; and he concludes, "that on the person to whom the bill was directed refusing to accept the bill as it was originally drawn, the holder resorted to the drawer;" however Buller, J. 4 Term Rep. 336,, says he cannot consider this case in any other light than as an action against the acceptor, because the books only state what passed between the holder and the acceptor.
(67) Tidmarsh v. Grover, 1 Maule 735. Defendant accepted
And an alteration by substituting or adding a new place for payment is an alteration in a material point. (67)
An acceptance once completed and issued (68) cannot be revoked.
And there are cases (69) in which it was held,
payable at Bloxham and Co's." Bloxham and Co. failed; the holder struck out their names, and without defendant's knowledge or consent inserted "Esdailes."— The point was reserved whether this alteration vacated the acceptance, and the court held it did, and ordered a nonsuit to be entered.
Cowie v. Halsall, 4. Barnew. and Ald. 197. Indorsee against acceptor. It appeared that the acceptance was general, and that the drawer, without the acceptor's knowledge, added to the acceptance "payable at Mr. B.'s, Chiswell-street," and on the ground that this was a material alteration, and vacated the acceptance, verdict for defendant. Motion for a new trial; but the court thought the verdict right, for this alteration would lead to a presentment at B.'s, not at defendant's, and the bill might be treated as dishonoured, and defendant be arrested thereon, without any presentment where defendant would expect it; and rule refused.
(68) See Marius, p. 20. and the cases mentioned in the two
(69) Thornton and another v. Dick and another, 4 Esp. N. P. C. 270. A bill was drawn on the defendants, payable three months after sight, was, on the 1st of October, left with them by the plaintiffs for acceptance. It was not called for until the 11th; when it appeared that the words, "Accepted the 1st of Oct. 1799. Q. Dick and Co." had been written upon the bill, and afterwards nearly obliterated by ink. The words however were still legible. At the time of drawing the bill the defendants were in advance to the drawer. The plaintiffs, as indorsees, sued the defendants as acceptors. The acceptance and subsequent cancellation were admitted: and the only question was, whether the cancellation, having been made before
that if the drawee wrote an acceptance upon a bill he could not afterwards cancel it, though he
the re-delivery of the bill, had discharged the acceptor. Lord Ellenborough said, that if a party once accepted a bill he had done the act, and could not retract; and that there was no difference in point of legal effect, whether the bill were payable after sight or after date. Verdict for the Plaintiffs. Trimmer v. Oddie was cited: in that case however the declaration contained counts against the drawee for having mutilated the bill.
Trimmer v. Oddie, 1800. A bill was left for acceptance and accepted, but the acceptance was afterwards cut off, and the bill returned in that mutilated state. Lord Kenyon was clearly of opinion, that the acceptance once made could not be revoked, and that the acceptor was still bound. This case was cited in Bentinck v. Dorrien, 6 East. Rep. 200., and the Hamburgh ordinance was referred to as having been recognized by Lord Kenyon to be the law of merchants here: and Lord Ellenborough said, "The rule is certainly laid down in the Hamburgh ordinance as stated, that an acceptance once made cannot be revoked; though, to be sure, that leaves the question open as to what is an acceptance, whether it be perfected before the delivery of the bill." And Lawrence J. in the case last menmentioned, 6 East. Rep. 201., said, "When the general question shall arise, it will be worth considering how that which is not communicated to the holder, can be considered as an acceptance while it is yet in the hands of the drawee; and where he obliterates it before any communication made to the holder." From this it would appear, that Mr. J. Lawrence had taken the same view of this question as Pothier, who cites from La Serra, ch. 10. a case where the holder of a bill having left it for acceptance, the drawee, before he returned it, cancelled an acceptance which he had written and signed upon it, and it was adjudged that this acceptance was annulled; and observes, "La raison est, que le concours de volontés qui forme un "contrat, est un concours de volontes que les parties se sont "reciproquement déclarées; sans cela, la volonté d'une partie "ne peut acquérir de droit à l'autre partie, ni par conséquent " être irrévocable. Suivant ces principes, pour que le contrat
cancelled it whilst the bill remained in his possession, and before it had been called for by the holder. But the contrary has since (70) been decided.
And before this decision it was adjudged, that if upon such a cancellation, the holder noted the bill for non-acceptance, he (71) precluded himself from insisting that the acceptance was binding.
"entre le propriétaire de la lettre et celui sur qui elle est tirée, "soit parfait, il ne suffit pas que celui-ci ait eu pendant quelque temps la volonté d'accepter la lettre, et qu'il ait écrit au bas "qu'il l'acceptoit; tant qu'il n'a pas déclaré cette volonté au porteur, le contrat n'est pas parfait; il peut changer de "volonté, et rayer son acceptation."- Traté du Contrat de Change, part 1. ch. iii. § 3. pl. 44. —See also Emerigon Traité des Assurances, ch. ii. § 4. p. 45., who observes, that La Serra
pose en maxime, que tant que l'acceptant est maitre de sa "signature, c'est-à-dire, qu'il n'a pas délivré la lettre de change, "il peut rayer son acceptation."— See also Stevenson on Bills, p. 162-164.
(70) Cox v. Troy, 5 Barnew. and Ald. 474. A bill on defendant and Co. for 9381. 16s. 10d., payable sixty-one days after sight, was put into their bill box for acceptance the 24th of May, 1820; they wrote an acceptance upon it, and dated it 24th May, 1820; the bill was not called for till the 27th of May, and before that time the acceptance was erased by inking it over : when, or by whom that was done, did not appear. Plaintiffs brought an action on the ground that the writing the acceptance bound the drawee, and that he could not afterwards cancel his acceptance: but on case, the court were clear the acceptance might be cancelled at any time before it was delivered out by the drawee, and they ordered the postea to be delivered to the defendant. Plaintiff had leave to turn the case into a special verdict. See also ante, p. 160. note (2.)
(71) Bentinck v. Dorrien and another, 6 East. 199. This action which was by an indorsee against the defendants as ac- ceptors of a bill, was referred; and the arbitrator, after reciting