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.

But a promise to accept a bill to be afterwards drawn, is (29) no acceptance of the bill when drawn, unless some per

ant'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 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 £23, 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 endorsed 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 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.

[Mason, Hodgson, & Co. were sued as acceptors of a bill. The evidence to support the acceptance consisted of letters written by the defendants to Proctor, their agent, before the bill was drawn, in one of which they agree to allow Proctor a commission upon all consignments of produce to them, and state that they "advance in anticipation of property on the receipt of bills of lading and invoices, with orders to insure, from 2-3 to 3-4 the probable proceeds;" and that he may "confidently assure any shippers that their drafts under the above circumstances will meet honor." The bill was drawn by Jephson on account of a shipment made by him to the defendants on the recommendation of Proctor, and he had forwarded bills of lading and invoices with orders to insure, and the bill drawn was for less than two thirds of the probable proceeds. The bill at the request of the drawer was made

son be thereby (30) induced to take or retain the bill; and indeed it may be doubted, whether in any case, a promise to accept a non-existing bill, would (31) now be considered as an acceptance of the bill when drawn. (a)

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.

[The doctrine may be considered as established in the United States, that a written promise to accept a non-existing bill, is binding as an acceptance, if the holder of the bill receives it upon the credit of such promise. (b)

Although the holder receives the bill from the drawer in payment of a pre-existing debt. (b)

payable to Proctor and by him endorsed. But it did not appear that the plaintiff purchased the bill, or that the drawer drew it, on the credit of the letter, or that either of them had any knowledge of it. The court held that even if an endorsee could in any case avail himself of such a promise as amounting to an acceptance, yet he could not in this case, as the bill was not taken upon the credit of the promise contained in the letter. M'Evers v. Mason, 10 Johns. R. 207.]

(30) Vide Pierson v. Dunlop, and Mason v. Hunt, ante, p. 96, 97, and Johnson v. Collings, supra.

(31) Vide Johnson v. Collings, ante, p. 104. n. (29).

(a) But it is clear that the person promising to accept bills to be drawn, if he refuse to accept them when drawn, is liable in damages for a breach of contract to the party to whom the promise is made. Laing v. Barclay, 1 Barn. & Cres. 398; S. C. 2 Dow. & Ryl. 530. See also M'Evers v. Mason, 10 Johns. R. 215.]

(32) In Pillans v. Van Mierop, ante, p. 97. 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."

[(b) Goodwin, one of the owners of the sloop Hope, wrote a letter of instructions to Napier the master, previous to a voyage, in which he said, "Should you unfortunately be captured by an English cruiser, you will endeavor to ransom the vessel and cargo, as low as possible, say not to exceed two thousand dollars; your draft on me or my brother will be duly honored." The vessel being captured, the master for her ransom drew a bill on Gordon for $2000, payable to Stewart or order, and gave Stewart the letter of instructions, and the vessel was released. Goodrich & Deforest, as endorsees of Stewart, brought an action against Gordon as acceptor. They had received the letter of instructions at the same time with the bills. Thompson C. J. delivered the opinion of the Court."The testimony is very full to show, that the letter of the defendant authorizing the drawing of the bill accompanied it at all

But such promise is not binding as an acceptance, unless the bill is drawn within a reasonable time after the promise is made. (a).

And where a bill was drawn two years after the promise was made, in order to procure the drawer's release from arrest, the person making the promise was held not to be bound as acceptor. (a)

times, and that it was upon the credit of that letter that the bill was taken by the plaintiffs. It was an authority given for the express purpose of enabling the captain to draw the bill, which was an act done for the benefit of the defendant, and according to his instructions; and I think it binding upon him as an acceptance; and this is the opinion of the Court." Goodrich v. Goodwin, 15 Johns. R. 6.

Coolidge & Co. wrote to Cornthwaite & Cary, saying, "If Mr. Williams feels satisfied on this point," (referring to a bond given by Cornthwaite & Cary to Coolidge & Co.) "he will inform you, and in that case your draft for $2000 will be honored." Cornthwaite & Cary gave Payson & Co. a bill for $2000 on Coolidge & Co., and Payson & Co. after ascertaining from Williams that he was satisfied with the bond, received the bill in payment of a pre-existing debt from Cornthwaite & Cary, upon the faith of the above letter. Payson & Co. sued Coolidge & Co. as acceptors of the bill. Marshall C. J. delivered the opinion of the Court. "Upon a review of the cases which are reported, this court is of opinion, that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be - mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise. This is such a case." "The mere circumstance that the bill was taken for a pre-existing debt has not been thought sufficient to do away the effect of a promise to accept." Coolidge v. Payson, 2 Wheat. 66, affirming the judgment of the Circuit Court, which appears in 2 Gallis. 233, Payson v. Coolidge. See also Storer v. Logan, infra.]

[(a) See Coolidge v. Payson, supra.

Hinckley having expressed dissatisfaction with a settlement of accounts between him and Clements, the latter wrote the former a letter containing the following words, "Reperuse the accounts, make out a statement according to your own wishes, and draw upon me here for the balance, which shall be punctually honored." Two years after this letter was written, Hinckley, being arrested by Wilson, a creditor, drew a bill on Clements in favor of Wilson for $2405 80. Acceptance being refused, Wilson brought a suit against Clements, declaring, 1. Upon the bill as accepted. 2. Upon a promise to accept such bills as should be drawn. 3. For money had and received. The court held that the action could not be maintained; and, without deciding that an action would not lie, had the bill been seasonably drawn, yet that "the length. of time alone was a sufficient reason why the defendant's promise should not be considered as conclusively binding on him." Sedgwick J. who delivered the opinion of the Court, said, "It would in my opinion be unreasonable to hold the defendant at all responsible for any bill which

A letter agreeing in unqualified terms to accept a nonexisting bill, is not binding on the writer as an absolute acceptance, where the holder of the bill is informed at the time of receiving it, that the acceptance depends upon a certain specified contingency. (a)]

A promise in a letter that a bill then drawn (33) "shall meet with due honor; or that the writer will (34) “accept or certainly pay" it, is, where 1 & 2 G. 4. c. 78. does not apply, an acceptance.

Hinckley might be induced, within two years to draw upon him, to obtain a release from imprisonment." Wilson v. Clements, 3 Mass. R. 1.] [(a) Storer, as payee, sued Logan, Lenox, & Co. as acceptors of two bills, drawn by Weeks & Son. The evidence to prove the acceptance, was a letter from Lenox addressed to Weeks & Son, in which he engages that his firm shall accept certain bills to be drawn by Weeks & Son; the plaintiff received the bills on the credit of the letter, and it was admitted that they were drawn pursuant to the authority given by the letter. At the trial before Sewall J. the defendant was admitted to prove that at the time the letter was shown to the plaintiff, he was informed, "that the undertaking to accept was to be understood conditionally, and depended altogether upon certain shipments to the defendants which the drawers were then engaged in making; and that if these shipments failed, the bills would not be paid." Verdict for defendants, subject to the opinion of the Court. Sewall J. delivered the opinion of the Court. He said that the letter amounted to an acceptance of any bill drawn "pursuant to the license and credit given, and negotiated upon the faith of that engagement."-"We concur in opinion that the delivery of the letter was subject to an explanation by parol testimony. The holder of the bill possesses with it a letter, which is evidence of an acceptance or a credit to the drawer, until this evidence is controlled by the circumstances communicated to the payee of the bill, the plaintiff in this action, and the manner in which he became possessed of a letter and promise not addressed to him is made to appear. Thus controlled, there is no evidence of an absolute, but only of a conditional and restricted promise to accept: which under the circumstances proved did not amount to an acceptance." Judgment on the verdict. Storer v. Logan, 9 Mass. R. 55.]

(33) See Clarke v. Cock, ante, p. 103. n. (28), and Pierson v. Dunlop, ante, p. 96. n. (3).

(34) Wynne v. Raikes, 5 East's Rep. 514. On 9th Nov. 1801, Brown in America, drew on the defendants in London, a bill for £500 at sixty days after sight; and on the same day wrote to them, that he had valued on them for £5,548 by divers bills, of which he requested their acceptance. The bill for £500 which was one of those bills, was endorsed 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 ap

And this, although the letter was not received until (35) after the bill had become due; and although no person had 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 honored, 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 endorsee before he takes the bill. (36)

But if, by the course of dealing between the parties, these words are considered as an acceptance, 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

peared." 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 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 5,000%. 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, favor Johnson and Co. for 100l., which please to honor:" defendant answered, "Your bill 100%. &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 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.