Jenys v. Fawler, 2 Stra. 946. Hayling v. Mulhall, 2 Bl. Rep. 1235. 1 Esp. Dig. 34. Peacock v. Rhodes, Watson & al. v. 3 Mas. Rep. 557. 3 Burr. 1521. Hinton's case, 2 Show, 235. 1 Esp. Dig. 35. Miller v. Race, 1 Burr. 452. And so in the case of bills of exchange after indorsement, the acceptor shall not be allowed to question the bill as forged; for he is bound by his acceptance, even though the bill was forged, from the credit it receives from the indorsee, by reason of the acceptance. The holder of an indorsed bill of exchange has a charge against all the indorsers, and may sue them one after the other till he is satisfied his whole demand. This is the case of an accepted bill of exchange: but if the bill has not been accepted, indorsee has the like remedy against the indorser, or against the drawer, at his election. Therefore a bill of exchange with a blank indorsement, being stolen and negotiated, an innocent indorsee for a valuable consideration shall recover it against the drawer. So if a bill of exchange is protested for non acceptance, an action presently lies for the holder against the drawer and indorsers although the time of payment is not come. IX. Of bills of exchange and notes negotiable without indorsement. Bills and notes payable to bearer or to J. S. or bearer require no indorsement; but the person who comes fairly by such bill or note, may bring an action on it in his own name. But where the action is so brought by the bearer in his own name, it is incumbent on him to prove, that he gave for it a fair and valuable consideration. And it matters not how the person who possessed it, came to possession of the bill or note, provided the holder, who brings the action, gave for it a good consideration, and came by it in the fair course of trade. For where the mail was robbed, and a bank of England note taken out, which was passed by the highwayman to the plaintiff, who was an innkeeper, in the course of his business; this was adjudged to give a full and indefeasible property in the note to the innkeeper. In like manner, where defendant gave to one Bicknell, Grant v. Vaughan, who was his ship's husband, an order on his banker, in 1 Bl. Rep. 485. these words, "pay to the ship Fortune or bearer, 701.” Bicknell lost the note. The person who found it passed it to the plaintiff in payment for goods bona fide sold, and the plaintiff recovered the amount of the bill. These decisions are founded on the consideration due to bills of exchange and promissory notes, as the medium of business, whose circulation is not to be impeded. And therefore a bill, if lost and found by any person, gives him no property against the owner, though it does against all other persons; and the owner may have trover for the bill in the finder's hands; but when it once becomes fairly transferred in the course of trade, the owner's property is from that time at an end. X. What shall amount to an acceptance of a bill of exchange. A parol acceptance of a bill of exchange shall be sufficient to charge the acceptor. But the mere answer of a merchant "that he would honour the bill," is no acceptance, except accompanied with other circumstances, which may induce a third person to take it by indorsement. Anon. Salk. 126. Lumley v. Palmer, 2 Stra. 1000. Per Lord Mansfield, As where other words are added to these, they may 1 Esp. Dig. 37. amount to an acceptance. As where a merchant by letter says, "Your bill shall be duly honoured and placed to your debit ;" this was adjudged to be a sufficient acceptance. The acceptance must be an absolute undertaking; for if a conditional one, it only charges when the condition is performed. And whether an acceptance is absolute or conditional, is matter of law, and not of fact. And the payee must, at the time of tendering it, take it in one light or other, and abide by such election: For if he conceives the acceptance to be conditional, and so notes the bill for non-acceptance, it is shewing that he considered the bill not as 1 Esp. Dig. 37. Sproat v. Matthews, 1 T. R. 182. 1 Esp. Dig. 38. 1 Esp. Dig. 38. Pierson v. Dunlop, Kyd, 80. Moore v. Withy, Wilkinson v. Lutwidge, Stra. 648. absolutely accepted; and in such case, he cannot afterward sue drawee as acceptor. In questions therefore between the payee or indorsee, and acceptor, the matter often turns upon what is an absolute and what a conditional acceptance. Where the acceptance is made with reference to some fund, which is to provide for payment of the bill, it is a conditional acceptance. As where the drawees of a bill of exchange received a navy bill payable to themselves, as a counter security for the payment of the bill drawn on them, and on the bill being tendered for acceptance they said, "that they could not accept the bill of exchange till the navy bill was paid ;” this was held to be a conditional acceptance, and when the money was received on the navy bill, to become absolute against the acceptor. Any thing written on the bill by the drawee, not expressing a direct refusal to accept, as "acccepted," " presented," "seen," will, if unexplained by other circumstances, amount to an acceptance. So, a direction to a third person to pay the money is an acceptance. The drawee of a bill underwrote it thus; "Mr. Jackson, please to pay this bill, and charge it to Mr. Newton's account.' It was contended that this was not an acceptance; for that the party did not mean to become the principal debtor. It was only a direction to Jackson to pay out of a particular fund. But the court held, that the underwriting being a direction to pay the sum, it was of no importance to what account it was to be placed when paid; that that was a transaction between the parties themselves, and this was a sufficient acceptance. So where defendant on whom the bills were drawn, in a letter said, "I will pay the bills in case the owners of the ship Queen Anne do not; but rest satisfied of the payment." This was held to be a good and sufficient accep tance. Generally a promise to accept a non-existing bill has Johnson & al. v. been holden not to amount to an acceptance*. Collings, 1 East's Kyd, 82. See Pillans & Rose v. Hopkins, But if A., having given or intending to give credit to B., writes to C., to know whether he will accept such bills shall be drawn on him on B's account, and C. return for 3 Burr. 1663. answer that he will accept them; this is equivalent to an acceptance, and a subsequent prohibition to draw on him on B's account will be of no avail; if, in fact, previous to such prohibition the credit has been given. But a promise to accept a non-existing bill, although such promise be in writing, will not absolutely bind the party making such promise, where the intervening time between the promise to accept and the drawing of the bill is so long, as to induce a reasonable suspicion of its credit. As in this case, which was an action brought to recover the contents of a bill of exchange drawn by one Hinkley in favour of the plaintiff upon the defendant, dated June 1, 1801, and payable at thirty day's sight. The plaintiff produced in evidence the bill of exchange declared on, which was presented and noted for non-acceptance, July 27, 1801. He also produced a letter from the defendant to Hinkley, dated July 31, 1799, containing, among other things, 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 honoured." The existence of the plaintiff's demand on Hinkley was also proved ; and that when pressed * In this case of Johnson and Collings, Lord KENYON said, that he did not know by what law a promise to accept a non-existing bill, was binding as an acceptance. And GROSE said, that by the general rule a chose in action was not assignable, except by the cus. tom of merchants; that the assignment of a chose in action, by a bill of exchange, was founded on that law, and could not be carried farther than that would warrant it, and that there had not been cited any authority to shew that by the law merchant, a mere promise to accept a bill to be drawn in future amounted to an actual acceptance of the bill when drawn. Wilson v. Clements, 3 Mas. Rep. 1. Smith & al. v. Nis for payment or security by the plaintiff, Hinkley drew the bill in question, shewing the letter of the defendant, at the same time, as evidence of his authority to draw. Upon this evidence the plaintiff's counsel contended for a verdict for the amount of the bill with interest, on the ground that a direction to draw, or a promise to accept a bill to be drawn, was sufficient to charge the defendant. The defence stated on the trial was, that prior to the date of the letter referred to, to wit, on the 26th of September, 1798, all accounts between defendant and Hinkley were adjusted by the defendant and a brother of Hinkley, by him authorized thereto; that the balance, so found due, was paid over to the said agent, who gave a discharge therefor; that neither at the time of writing the letter by the defendant, nor of drawing the bill by Hinkley, was there any thing due from the defendant to Hinkley, as would appear by the accounts between them, and by the discharge above mentioned. The evidence offered by the defendant to support this statement was rejected, and a verdict taken, by direction of the judge, for the plaintiff, with liberty to the defendant to move for a new trial upon the above state of the case, as reported by the judge. The court granted a new trial, and declared themselves satisfied. that if the plaintiff could support his action, provided the bill had been seasonably drawn, and with reliance by the plaintiff upon the credit of it, that the distance of the time between the date of the letter and the date of the bill, with the other circumstances in the case, entitled the defendant to avail himself, if the facts would support him in it, of the defence which he offered to set up on the trial. So upon a request to A. to accept a bill, and draw upon sen & al. 1 T. R. 269. B. for the sum; the mere act of drawing on B. does not amount to an acceptance. |