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XI. Of the manner of acceptance.
No person, as wife, or servant, can accept a bill of ex- Main change so as to bind the master, without lawful authority, ..
1 Esp. Dig. 40. as a letter of attorney, or the like, unless such person has usually done so in the absence of the master.
Therefore where a bill of exchange was drawn on de- Thomas v. Bishop, fendant, as cashier of the York-Building's company, which a stri he accepted, generally, he was held to be liable : For where a bill of exchange is drawn on the master, and the servant accepts it, the master may be liable ; but where it is drawn on the servant himself, though intended to be placed to the master's account, yet if the servant accepts it generally, he alone is liable. And nothing out of the bill, as, for instance, 1 Esp. Dig. sc. the letter of advice, shall be admitted in evidence, as to the person upon whom it was intended to be drawn.
Where there are two joint traders, and one accepts a bill Pinckney v. Hally drawn on both, for himself and partner, it binds both, if it concerns the trade ; otherwise if it concerns the acceptor only, in a distinct interest and respect.
The drawee of a bill of exchange may accept it as to Wegersloffe v. Keene, part, or he may accept it to pay « half money and half goods,” or “when goods of the drawer are sold ;" but payee G. 2. Bull. N. P. 270. may refuse such a partial acceptance, and protest the bill. That is, if the bill is accepted in part, there must be a protest, if not for the whole sum, at least for the part unaccepted. After payment, there must be a protest for the 1 Esp. Dif.41. residue.
The acceptance of the bill need not be upon the bill it- Pillans bal. vVan self. It may be by a collateral agreement, and in such 1663. case it shall bind the acceptor.
A bill may be accepted after the time of payment is elapso come al ed, and the acceptor shall be liable ; for the substance of Salk. 129. the promise is to pay the money, which is done by the acceptance.
So a bill may be accepted to be made payable at a longer , Fisn. Die 49. day than that on which it is drawn payable ; and this shall bind the acceptor.
1 Stra. 214. Smith v. Sear, E. 14.
In the case of
var i By the acce
Wilkinson v. Lutwidge, Stra. 648.
Maber v. Massias, 2 BI. Rep. 1072.
XII. Of the effect of an acceptance ; and how it may be discharged.
By the acceptance of a bill of exchange, acceptor makes himself so absolutely liable, that he can never aver the want of a consideration, or of goods in his hands belonging to the drawer; for the law merchant knows no nudum pactum.
So where the action is against the acceptor by the payee, he is not obliged to prove the drawer's hand; for by the acceptance, the acceptor has acknowledged the hand of the drawer, as his correspondent. But the acceptor is not precluded from proving it not to be the hand of his correspondent.
So where there are dealings and an account current between the drawer and drawee as his factor, and a balance in fact due to the drawee, if he accepts a bill of the drawer's drawn on the goods in his hands, this shall only be postponed to prior acceptances, and he shall not be allowed to hold the goods for his own balance ; for if he meant to have reserved his own balance, he should have made a
special acceptance. m Anacceptance is an acknowledgment of a debt due to the
drawer ; and therefore where drawee of a bill of exchange accepted it, he was held liable to the drawer, he not having paid the bill when due, which was returned protested, and paid by the drawer. But it seems that he might have accepted it for the honour of the drawer ; in which case he would not be liable.
The laws of the country where the bill of exchange is accepted, shall determine how far the acceptance binds.
Therefore where a bill was accepted at Leghorn, by the plaintiff, and by the laws of that place, if a bill is accepted, and the drawer fails, and the acceptor has not sufficient goods of his in his hands, (which was the case here) he shall be discharged from his acceptance ; in such case, it was held in chancery, on a bill for an injunction, (plaintiff being sued at law in England, on his acceptance) that the
Simmonds v. Parminter, 1 Wils. 185.
acceptance being declared void by the laws of that place, was void every where, and the acceptor discharged.
Where the drawee of a bill of exchange enters into an Mason v. Hunt, agreement to accept on certain conditions, as in consideration that goods of a certain value shall be consigned to him (which is a virtual acceptance, if the condition be performed ;) if, in such case, before the acceptor has absolutely accepted the bills, the payee takes the goods himself and sells them, it is a discharge to the drawee of such virtual acceptance.
XIII. Of the protest of bills of exchange.
Bills of exchange are to be protested either for non ac- 1 Esp. Dig. 45. ceptance where tendered, or for non-payment when due.
If a bill is not accepted, it should immediately be pro- ibid. 47. tested and notice given to the drawer ; for it is not sufficient to give notice of the non-acceptance when the bill becomes payable.
For where defendant drew a bill at sixty day's sight, pay- G able to W. S. or order ; he indorsed it to the plaintiff, who T:ma. presented it for acceptance, and was refused. Plaintiff then noted it for non-acceptance, but did not protest it till the end of sixty days, at which time he protested it for nonpayment, and then wrote to defendant and to his agent notice of the non-acceptance. Afterward, having brought this action against the defendant as drawer, he was nonsuited ; for by not sending the protest for non-acceptance, he made himself liable.
So the bill should be noted for non-acceptance the day 1 Esp. Dig. 47. it is refused; and when the protest is drawn, it may be dated that day.
Where a bill is lost, and a new bill cannot be had from Dehers v. the drawer, a protest may be made on a copy, particularly where the refusal of payment was not for want of the original bill, but merely for another cause ; so that the party who was to pay did not insist on the original bill's being delivered up. But if a bill is lost, and the drawer can be
m. Pekers v. Harriot,
resorted to for a new bill, there a protest cannot be made on a copy.
If a bill of exchange is accepted, and the party dies, yet there must be a demand on the executors or administrators; and if the bill is payable even before they can be appointed, yet should a protest be made.
If a bill is drawn on a person who lives in the country, and he is not to be met with, upon which his friend accepts it for his honour; this acceptance shall bind the person, so accepting, to the payment of the money ; but the bill should be protested for want of acceptance by the original drawee.
If a bill be left with a merchant to accept, he to whom it is payable, in case it be lost, is to request the merchant to give him a note for payment of the money, according to the time limited by the bill ; otherwise there must be two protests, one for non-acceptance, the other for non-payment.
The protest is made before a notary public, in case of non-acceptance, or non-payment; to his protest all foreign courts give credit, and the protest is evidence that the bill is not paid.
XIV. Of cases in which the holder of the bill or note shall be charged with the loss by reason of his neglect; or be exempted from it, for having used a due degree of diligence.
Bull. N. P. 270.
Where a bill of exchange is drawn on any person, it
is presumed that the drawee has effects in the drawer's 1 Esp. Dig. 51.
hands, to the amount of the bill; if he therefore refuses to accept it, notice must be given to the drawer, in order that he may take steps for his own security; and if such notice is not given, and drawee fails, the payee must stand at the loss. And the same notice is required in been accepted, and on being tendered for acceptance by the plaintiff, drawee refused to accept it; plaintiff gave no notice of this, for three weeks, to defendants ; and at the end of the three weeks drawer failed : The loss was adjudged to fall on the plaintiff; for as the drawer was liable to defendants, who were payees, and he continued solvent for three weeks ; if plaintiff had given notice, defendants might have obtained the money from the drawer; and therefore the plaintiff must suffer for his own neglect and laches.
case of an indorsed bill. Blesard v.Hirstandal. For where defendants, who were original payees of a
bill of exchange, indorsed it over to plaintiff before it had
6 Burr. 2670.
But where it appears that there were no effects of the Bickerlike v. Bolldrawer's in drawee's hands, so that no possible loss could him.'R. 405. accrue to the drawer from want of notice, (as if drawn fraudulently for a blind or delay, where the parties have no dealings, there the payee or indorsee shall not stand at the loss of the amount of the bill from not having given notice ; for there the foundation of the rule fails. And 1 Esp. Dig. 52. · this decision has since been often recognized.
But it is to be observed, that as the acceptor of a bill Ibid. 53. of exchange is first liable, nothing but an express agreement, on the part of the holder of the bill, shall discharge him; mere implication shall never be sufficient..
Therefore in this case, where the plaintiff who was in- di dorsee, applied to the drawer of the bill for payment, (it Doug being an accommodation bill, and no value given to acceptor,) and received interest from him, and did not apply to defendant who was the acceptor, for several years ; yet he afterwards recovered from him (the acceptor) the amount of the bill, this amounting not to an express discharge.
But where there is an express discharge, the acceptor Black v. Peele, quot. cannot be resorted to..
As the acceptor therefore is at all times liable, no, ton question can ever arise on the circumstance of loss, except in the case of his insolvency. Every payee or ibid. indorsee should, for this reason, apply for payment of
Dingwall v. Dunster,
in Doug. 248.
1 Esp. Dig. 54.