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) An answer by the drawee when a bill is called for, "there is your bill, it is all right," is no (40) acceptance.

[And the drawee's saying to a person not a party, nor acting for a party to the bill, that "he must pay it" or "would have to pay it," is not an acceptance. (a)]

Saying, when a bill is presented for payment, "that it will be paid," if said with reference to immediate payment, will not amount to an acceptance, if the person who brought the bill declines the immediate payment (41) because he makes an ulterior demand.

Especially if the drawee has before refused to accept. (41)

(38) Cox v. Coleman, ante, p. 97. note (6). [And see Grant v. Shaw, ante, p. 98.]

(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.

(40) Powell v. Jones, Espinasse, 17. In an action against the defendant as acceptor of a bill, the only evidence to prove the acceptance was, that when the bill was called for, he returned it, and said, "There is your bill, it is all right." Lord Kenyon thought that these words could by no implication amount to an acceptance, and nonsuited the plaintiff. Vide ante, p. 103. note (26).

[(a) Martin v. Bacon, 2 S. Car. R. 132.]

(41) Anderson v. Heath, Trin. 1815, 4 Maule, 303. A bill for 20007. at sixty days' sight was presented to defendants, the drawees, 2d August, 1814, for acceptance, which they refused, and it was protested. At the end of the sixty days, 4th October, it was brought for payment, and one of defendants said, "This bill will be paid; but we cannot allow you for a duplicate protest," which was charged, and he was about to pay the bill; but the clerk who brought it said, "he could not receive the payment without all the charges, without further orders;" and he went away for instructions: he returned in half an hour; but in the interim defendants had learned the drawer had failed, and they refused payment. An action was brought on the ground that the saying, "the bill would be paid," was an acceptance; but, on case, the court held it was not; it was said alio intuitu, acceptance did not enter into the

[A supercargo or other agent cannot by drawing a bill on his principal bind the latter as acceptor, unless the agent have special authority for the purpose. (b)]

In cases to which 1 & 2 G. 4. does not apply, the drawee's keeping a bill presented for acceptance, (42) may amount to an acceptance;

And so may his destroying it.

But if there is a refusal to accept, and the holder submits

contemplation of either party at the time; they thought of immediate, not future payment; defendants did not think of giving a pledge, nor the clerk of receiving one. Nonsuit.

[(b) See Scott v. M'Lellan, 2 Greenleaf, 199.]

(42) Harvey v. Martin, King's Bench, sittings after Michaelmas Term, 1806. In an action by the payee and holder of a bill against the defendant as acceptor, it appeared that the bill was drawn in Guernsey, where the drawer and the plaintiff resided, on the defendant, who lived in Cornwall, dated 13th March, 1805, at three months; within a fortnight after it was drawn, the plaintiff sent it to the defendant, desiring him to accept it, and remit it to S. Dobree, the plaintiff's correspondent in London. On 13th April, 1805, the plaintiff, finding that the bill had not been sent to S. Dobree, wrote to the defendant requesting him to accept and send it, stating, that though be considered the keeping the bill as tantamount to an acceptance, yet that it was not the same to him, as S. Dobree would not give him credit for it until he received it accepted. The defendant, however, did not accept the bill, or remit it, or give any notice of his refusal so to do. On the 1st of June the defendant signed a letter, admitting that he had kept the bill, though told by the plaintiff that he considered his doing so as tantamount to an acceptance, as he intended to have paid it," but having no effects of the drawer's, he refused to pay and on 4th July, when the bill was protested for nonpayment, he said he had neglected to write an acceptance upon it, thinking it of no consequence, " as he meant to pay it." Lord Ellenborough referred to a MS. case of Trimmer v. Oddie, mentioned post, p. 118., in which Lord Kenyon expressed an opinion, that a mere keeping of a bill was an acceptance; and said he inclined to entertain the same opinion; but should leave that question to the jury on the custom. Gibbs, however, for the defendant, admitting that he could not answer the case, a verdict was found for the plaintiff. And on an application to Lord Ellenborough to certify for a special jury, his lordship refused, saying that this was a clear case; but that if it had not been attended with such strong admissions on the part of the defendant, but had been a mere case of a bill kept by the drawee, he should have thought it a fit case for a special jury to decide, whether such detention of the bill amounted to an acceptance.

66

See Scaccia de Commerciis et Cambio, fol. 383, num. 335., who, in enumerating the different acceptances, mentions that which is made "tacite per receptionem, et detentionem literarum." See also Pothier Contrat de Chauge, part. I. c. 3. § 3. p. 39, who observes, that the ordonnance having directed that an acceptance should be in writing, had rendered inadmissible the "acceptation tacite" resulting from the drawee's having received and retained the bill.

to that refusal, but omits taking the bill away, a subsequent destruction by the drawee is not necessarily an acceptance. (43)

If a bill is sent by the post to the drawee for acceptance, and that has been the course between the holder and drwee, a neglect by the drawee to return it for ten or twelve days whilst he is waiting to see if the drawer sends him funds, is no acceptance. (44)

Though he keeps it at the instance of the drawer on a promise from him of funds. (44)

At least, it is not, if by the course of dealing between the holder and the drawee, the former is apprised that the latter will accept, without delay, when he has funds, and that he will not accept without. (44)

A fortiori the holder cannot insist upon it as an acceptance, if he makes no remonstrance on account of the delay whilst the bill is kept, or when it is returned unaccepted. (44)

And query whether when the holder sends the bill by post to the drawee and thereby makes him his agent, whether any neglect by the drawee will have any other effect than

(43) Jeune v. Ward, 1 Barnew. 653. 2 Stark. 326. Godfrey was entitled to a 2007. legacy under a will, to which defendant was an executor, and he drew upon defendant for 150l. at sight in favor of plaintiff, who was a creditor: the bill was drawn 28th May; on 29th plaintiff went to defendant, who lived in the country, and left the bill for acceptance in June plaintiff wrote to defendant's solicitor, Egerton, saying defendant had refused to accept the bill, desiring his assistance to get payment from the drawer: Egerton apprised him when the legacy was to be paid, and Godfrey having received it without paying plaintiff, plaintiff applied to defendant to return the bill, to which defendant replied, that having also been applied to by Godfrey's mother to send it her, he had, to avoid trouble, destroyed it. Plaintiff brought an action on the ground that the destruction was tantamount to an acceptance; and of that opinion was Lord Ellenborough, and verdict for plaintiff. On rule nisi for a new trial, and cause shewn, Lord Ellenborough retained his opinion; and Holroyd J. thought, that in general destruction was equivalent to acceptance, but as there was a refusal to accept and plaintiff seemed to consider deft. not liable in June, he thought there ought to be a new trial, to put the facts upon the record: Bayley and Abbot Js. thought, under the circumstances, the destruction was no acceptance; and rule absolute. Bayley J. doubted whether, in any case, destruction would do more than subject to an action of trover.

that of subjecting the drawee to a special action for the negligence. (44)

By the usage of trade, a banker in London will not render himself responsible by retaining a check drawn on him, (45) provided he return it 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

Brank

(44) Mason and others v. Barff, M. 59 G. 3. 2 Barnew. 26. stone used to draw on defendants for wool he sent them: August 1814, plaintiff, who used to discount the bills, sent one by letter to defendants, and defendants returned it accepted, but said, it would be well for the future if plaintiffs would inquire whether the wools were delivered to the carrier, and the invoices and the carrier's acknowledgement sent, and in such case the bills would be accepted without delay: 25th February, plaintiffs sent another bill for acceptance, which arrived 27th; but defendants not having received remittance of the invoice, &c. omitted returning it till 8th March, and then sent a letter to say they could not accept because they had not received the invoice, &c., and said they had kept it during the interval on a promise from Brankstone that the invoice should be sent: this letter arrived 11th March, on which day, before its arrival, plaintiffs sent another bill for acceptance, making no mention of the other bill: defendants kept both bills till 25th March, and then sent back both unaccepted. Plaintiffs insisted their conduct amounted to an acceptance of both, and they brought an action on the case; but on argument, the court was clear against plaintiffs, for as they knew the bills would be accepted without delay if the invoices, &c. were sent, they must have concluded, from the delay, that defendants were waiting for them: that their making no remonstrance when they wrote on 11th March, implied that they so considered it, and their making no reply to the letter of the 8th of March, shewed that they did not then consider silence as an acceptance, and had they meant so to consider it, they should at once have written to say so to defendants, because that would have prevented his keeping the second bill, and would have put him upon getting funds for the first. Nonsuit. (45) Fernandez v. Glynn, 1 Campb. N. P. C. 426. n. In this case it was decided, that by the custom in London, a banker might return a check at any time before five o'clock of the day on which it was drawn. And although the check had been cancelled by mistake, yet having been returned within the time, the banker was holden to be discharged.

(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.

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 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.

(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 discharged.

(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.