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fact was so, that the protest of said bill on the day following, was legal and regular. This opinion was sustained by the court of appeals.

8. Non-acceptance followed by protest and notice gives a right of action against drawer or endorser.

It is clear (whatever might formerly have been considered on the subject) that by the non-acceptance, followed by the protest and notice, the holder acquires an immediate right of action against the drawer-a right of action, not in respect of any special damage from the non-acceptance, but a right of action on the bill—a right of action to recover the full amount of the bill. Macarty v. Barrow, 2 Str. 949, more accurately stated in 3 Wils. 16; Milford v. Mayor, Dougl. 54; Bright v. Purrier, Bul. N. P. 269; Whitehead v. Walker, 9 M. & W. 516, cited ante, 1 Rob. Pract. 475; Winthrop v. Pepoon &c. 1 Bay 468; Robinson v. Ames, 20 Johns. 150. And the case of an endorser is not distinguished in this respect from that of the drawer. Ballingalls &c. v. Gloster, 4 Esp. 268, 3 East 481; Watson &c. v. Loring &c. 3 Mass. 557; Lenor v. Cook, 8 Id. 460; Mason &c. v. Franklin, 3 Johns. 202. The holder having a right to commence a suit upon the protest for non-acceptance, the omission to present the bill for payment is no defence against a recovery. S. C.; Weldon &c. v. Buck &c. 4 Johns. 148; Miller v. Hackley, 5 Id. 384; Bank of Rochester v. Gray, 2 Hill 228. There is, on this subject, a very uniform course of decision in England, in our state courts and in the supreme court of the United States. Evans v. Gee, 11 Peters 80.

CHAPTER XVIII.

WHO MAY BE LIABLE AS ACCEPTOR OF A BILL; AND HOW THE ACCEPTANCE MAY BE MADE.

1. On a bill addressed to an individual or a firm who may become liable as acceptor.

A bill directed to a particular person can be accepted by no body but that person, except for honour. Davis v. Clarke, 1 Car. & Kirw. 177, 47 Eng. Com. Law Rep. 177. If A

draws a bill on B, who refuses to accept it, and C rather than it shall be protested accepts it for the honour of A, this acceptance will bind C. 1 Ld. Raym. 575. 1 Ld. Raym. 575. But, except in cases. of acceptance for the honour of the drawer, none but the drawee, or one of the drawees, can be bound by an acceptance.

If there be, in Virginia, a firm of D, M & Co., one of whom, W D, resides in London, a bill addressed to W D, London, and accepted by him, will not be a ground of action against the firm, unless it appear that the firm did business in London under the name of W D, and that the bill was understood to be addressed to, and accepted for, the firm. This not appearing, though the bill express to be on account of the firm, the acceptance in the name of W D, to whom the bill is addressed, binds him only, not the firm. Cunningham &c. v. Smithson, 12 Leigh 32.

If a bill not drawn on a firm, but on an individual who is a member of it, be accepted in the name of the firm by that individual, the acceptance, though not binding on the other members of the firm, is binding on him. Nicholls &c. v. Diamond, 9 W. H. & G. 154, 24 Eng. Law & Eq. 403.

If a bill, drawn on a firm, be accepted on their behalf by a person describing himself as their manager-although he may have falsely affirmed that he had authority so to acceptthere may be an action against him as acceptor. Owen v. Van Uster, 10 Com. Bench (1 J. Scott) 318, 70 Eng. Com. Law Rep. 318, 1 Eng. Law & Eq. 396.

2. Acceptance may be absolute or conditional.

A general acceptance of a bill or order binds the acceptor to a payee who takes it bona fide and for a valuable consideration, notwithstanding the consideration inducing the acceptance afterwards fails; such failure being without any fault on the payee's part. Corbin's adm'r v. Southgate, 3 H. & M. 319. There may be a conditional as well as an absolute acceptance. Pierson v. Dunlop, Cowp. 574.

The bill calling on the drawee to pay on a particular day, the drawee by his acceptance may extend the time of payment, subject to an option in the holder to treat the bill as dishonoured by such acceptance, or to take the acceptance and agree to the alteration. In the latter case, it does not lie in the mouth of the acceptor to object to what is thus done in accordance with the words of his acceptance. Russell v. Phillips, 14 Adol. & El., N. S. 891, 68 Eng. Com. Law Rep. 891; U. S. v. Bank of Metropolis, 15 Peters 395.

Where the drawee wrote on the back of the draft, "I will see the within paid eventually," it was considered in Kentucky, that this, if not an undertaking to pay immediately, was at least a promise to pay in a reasonable time. Brannon v. Henderson, 12 B. Monroe 62.

3. Whether party who writes acceptance can erase it before it leaves his hands; whether, if acceptance be cancelled by mistake, the mistake may be corrected.

Where a bill left for acceptance had been accepted, and the acceptance afterwards cut off and the bill returned in that mutilated state, Lord Kenyon seems to have been of opinion that the acceptor was still bound. Tummer v. Oddie, cited in 6 East 200. Lord Ellenborough appears to have entertained a similar opinion. Thornton &c. v. Dick &c. 4 Esp. 270; Bentinck v. Dorrien &c. 6 East 200. Lawrence, J. thought it 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. S. C.

Lord Ellenborough is supposed to have changed his opinion. From what he said in Raper &c. v. Birkbeck, 15 East 20, that inference is drawn by several of the judges who sat in Cor v. Troy, 5 Barn. & Ald. 474. This case adopts the rule laid down by Pothier in his treatise on bills of exchange, (2 vol. 114, par. 1, c. 3, § 3,) that a party who has written an acceptance, may erase it before it goes out of his hands. 7 Eng. Com. Law Rep. 163.

A fortiori, said Lord Ellenborough, a third person who cancels an acceptance by mistake, having no authority so to do, shall not be held thereby to make void the bill, but shall be at liberty to correct that mistake in furtherance of the rights of the parties to the bill. Raper &c. v. Birkbeck &c. 15 East 20; Novelli v. Rossi, 2 Barn. & Adol. 757, 22 Eng. Com. Law Rep. 176.

4. Whether parol acceptance will bind acceptor.

In the case of an existing bill, it has been decided that proof of a parol acceptance will sustain an action against the acceptor, and this notwithstanding the statute of 3 and 4 Ann, c. 9, requires the acceptance to be in writing in order to charge the drawer with damages and costs; that statute having a proviso that it shall not extend to discharge any remedy that any person may have against the acceptor. Lumley v. Palmer, 2 Str.

1000; Miln v. Prest &c. 1 Holt's N. P. R. 181, 3 Eng. Com. Law Rep. 67; Ontario Bank v. Worthington, 12 Weud. 598.

The parol acceptance being no more than a parol promise, it seems to the author that whether or no the acceptor can be charged on such promise may depend on whether the promise is to pay a debt of his own, or to answer for the debt of another. For in the latter case, no action can lawfully be brought unless the promise or some memorandum or note thereof be in writing and signed by the party to be charged thereby, or his agent. Such is the provision of the Code of Virginia, p. 579, ch. 143, § 1, taken from the statute of 29 Car. 2, c. 3, § 4.

5. At what time acceptance may be made. Whether a person promising to accept a future bill, will be liable as an acceptor. Review of the decisions. Rule established in England, that a promise to accept a non-existing bill does not amount to an acceptance.

Formerly, acceptance after the day of payment seems to have been common. Mutford v. Walcot, 1 Ld. Raym. 574, Salk. 129, 12 Mod. 410.

With respect to a promise to accept a future bill, there has been considerable diversity of opinion. Such a promise has sometimes been put on the ground of a contract, for breach of which an action lies. Beawe's Lex. Mercat., p. 466, pl. 112. But this would not enable an endorsee to charge the drawee by virtue of such promise, that not being assignable. Kent, C. J. in McEvers v. Mason, 10 Johns. 215. Ld. Hardwicke thought there could be no doubt that an acceptance of a bill already drawn might be by letter, and it has been so determined. Powell v. Monier, 1 Atk. 611; Wilkinson v. Lutwidge, 1 Str. 648. Lord Mansfield went further, and held a person liable on a promise to accept a bill to be drawn; whether he was deemed liable as actual acceptor, or on his special contract to accept, does not clearly appear; it was so adjudged in an action, not by an endorsee but by the drawers themselves. Pillans &c. v. Van Mierop &c. 3 Burr. 1663. In subsequent cases, the action was sustained on a promise to honour an existing bill; in respect to such a bill, the promise being deemed an acceptance, it was no objection that the action on it was by an endorsee. Pierson v. Dunlop &c. Cowp. 571; Mason v. Hunt, Dougl. 296.

Lord Kenyon lamented that any thing had been deemed to be an acceptance of a bill besides an express acceptance in writing; he was not disposed to carry the decisions to the length contended for and to say that a promise to accept a bill

before it was drawn was equally binding as if made afterwards. Johnson &c. v. Collings, 1 East 98. Lord Ellenbo rough took a similar view; it was a promise to accept an existing bill that was sustained in Clarke &c. v. Cook, 4 East 58.

In Massachusetts there were early cases in favour of holding obligatory a promise to accept a bill, though made before it was drawn. Wilson v. Clements, 3 Mass. 11; Storer v. Logan &c. 9 Mass. 58. At this period the English courts adhered to the authority of Powell v. Monier, and held a promise to accept, or certainly pay, an existing bill, to be an acceptance. Wynne &c. v. Rakes &c. 5 East 514. And in New York, Kent, C. J., adverted to the distinction between an existing bill and one to be drawn. McEvers v. Mason, 10 Johns. 215. But Mr. Justice Story and the supreme court of the United States, notwithstanding the expressions in some opinions of English judges, considered that no case had been decided on this distinction, and held 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 shewn to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise. Payson &c. v. Coolidge &c. 2 Gal. 233, 2 Wheat. 66. The supreme court of New York concurred with the supreme court of the United States. Goodrich &c. v. Gordon, 15 Johns. 6; Parker v. Greele, 2 Wend. 545. And the same rule was recognized in Kentucky. Vance &c. v. Ward, 2 Dana 95; Read & Son v. Marsh, 5 B. Monroe 10; and South Carolina, Kendrick v. Campbell &c. 1 Bailey 552.

This rule the supreme court believed to be in accordance with the doctrine both in the English and American courts; but after it was established, there were before the court other cases which seemed to it not to come within that rule. Schimmelpennick &c. v. Bayard &c. 1 Peters 285; Boyce &c. v. Edwards, 4 Peters 121. In New York when one of the cases above cited, came before the court of errors, it was much doubted whether it was within the rule. Greele v. Parker, 5 Wend. 414. A subsequent case brought the rule itself within more narrow limits than had before prevailed in that state. Ontario Bank v. Worthington, 12 Wend. 598.

By the Revised Statutes, it was provided that "no person within this state shall be charged as an acceptor on a bill of exchange unless his acceptance shall be in writing, signed by himself or his lawful agent," 1 R. S. 768, § 6; that "if such acceptance be written on a paper other than the bill, it shall

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