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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 conditions, 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 actual 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)

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.

(49) Pierson v. Dunlop, ante, p. 96. (50) Miln v. Prest, Holt, 181. 4 Camp. 393. Endorsee 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 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

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.

The effect of accepting a bill in such way as to make it payable at a banker's, 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 entitled from the

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 honor of the defendan's, 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 Wegerstoffe v. Keene, ante, p. 98. note (9). (53) Vide Walker v. Atwood, ante, p. 99. 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 holder kept it the two months, and then presented it for payment; the court held that this was an acquiesence 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. 99. 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.

undertaking of the drawer and endorsers 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.

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

(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. 113. note (47), and Bentinck v. Dorrien, post. p. 119. note (71).

(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

doubted whether the etermination 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)

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, that if the drawee wrote an acceptance upon a bill he could not afterwards cancel it, though he cancelled it whilst the bill re

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 a bill "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. Endorsee 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 dishonored, 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 next

notes.

(69) Thornton and another v. Dick and another, 4 Esp. N. P. C. 270. A bill 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, 66 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 endorsees,

mained in his possession, and before it had been called for by the holder. But the contrary has since (70) been decided.

sued the defendants as acceptors. The acceptance and subsequent cancellation were admitted: and the only question was, whether the cancellation, having been made before 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 bili 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 recognised 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 mentioned, 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 volontés que les parties se sont reciproque"ment déclarées; sans cela, la volonté d'une partie ne peut acquérir, "de droit à l'autre partie, ni par conséquent être irrévocable. Suivant 66 ces principes, pour que le contrat 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."-Traité 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.

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(70) Cox v. Troy, 5 Barnew. and Ald. 474. A bill on defendant and Co. for £938. 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

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