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silence, to have assented. Subject to the exception above mentioned, prior parties who have neither authorized nor in any way assented to such an acceptance will be discharged on the holder taking it.
5. "A bill may be accepted before it has been signed by the drawer or while otherwise incomplete," (B. of Exch. Act, s. 19,) and a signature intended as an acceptance, and written across a blank stamped paper, is an authority to fill up the bill to the amonnt covered by the stamp. A bill may be accepted after it has been dishonored by a previous refusal to accept or by nonpayment. When a bill is accepted when overdue, the acceptor becomes liable immediately.
When a bill is drawn payable so many days "after sight," the date of the acceptance should be appended, and the time will count from the day of acceptance. For this reason, if the drawee dishonors the bill by refusal to accept it and afterwards accepts it, the holder is prima facie entitled to have it accepted as of the date of the first presentment. (See B. of Exch. Act, s. 18.)
6. The holder may likewise treat the bill as dishonored by non-acceptance, if it turns out that the drawee was incompetent to contract, as by being an infant or a corporation unable to bind itself by an acceptance.
7. None of these acceptances will be complete unless accompanied by a delivery of the bill to the person entitled to it, or according to his direction or by a notice, given by the acceptor after actual acceptance, of the fact of acceptance. So that a man who has accepted a bill may erase the acceptance while it is in his possession, unless, after writing it, he has given this notice.
But when the bill has once got into the hands of an innocent holder for value, now called a "holder in due course," "the delivery of the bill by all parties prior to him, so as to make them liable to him, is conclusively presumed." (See B. of Exch. Act, s. 21.)
8. An acceptance is not binding when given by any other person than the drawee; thus, if a bill be drawn on John Brown, and be accepted by John Jones, the latter will not be liable on the bill.
But to this there are one or two exceptions. If the bill be drawn on A. B. and C. D., or on a firm of which they are members, such as "B. D. and Co.," if either
accepts, he will be liable on the bill, though the holder is entitled to a different acceptance.
Another exception is in the case of an acceptance supra protest. This may be either by an "acceptor for honor," who is a stranger, or by a referee in case of need, commonly called, for shortness, a "case of need," who is a person referred to on the bill by some party to it. To explain this, I quote sec. 15 of the B. of Exch. Act:
"The drawer of a bill and any indorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonored by non-acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit."
The acceptor for honor and the case of need, when he accepts, give their acceptance S. P., or suprà protest; that is after protest of non-acceptance made before a notary. The acceptor suprà protest writes across the bill Accepted S. P., sometimes adding " for the honor of A. B.," (the drawer or one of the indorsers,) and, if no name is mentioned, it is considered to be for the honor of the drawer. I may mention that it is enough if the bill be noted before this acceptance, for the protest may be extended afterwards.
I quote from the B. of Exch. Act s. 65: as follows: "Where a bill of exchange has been protested for dishonor by non-acceptance, or protested for better security, and is not overdue, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill suprà protest, for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn.”
[Let me here explain the meaning of "protested for better security." It is a step which may be taken where the acceptor becomes bankrupt before maturity. Its only advantage is that it allows of an acceptance supra protest, for the bankruptcy of the acceptor does not, in England, enable the holder to require security from the other parties.]
A bill may be accepted for honor for part only of the amount for which it is drawn.-B. of Exch. Act, s. 63. Where a bill payable at sight is so accepted, its maturity is counted from the date of noting for nonacceptance, not from the date of the acceptance for honor.
9. The object of the acceptance for honor is to save the holder all those rights which he would have enjoyed if the bill had been accepted in a regular manner. acceptor for honor becomes liable to the holder and to all parties subsequent to the party for whose honor he has accepted. But the bill must be presented for payment to the drawee and protested for non-payment before it is presented for payment to the acceptor for honor, or referee in case of need. This latter presentment must be not later than the day following the maturity where the acceptor S. P. lives in the same place where the bill was protested for non-payment, and it must be forwarded for presentment not later than the day following when the acceptor S. P. lives in a different place.
But delay in presentment will be excused by such circumstances as would excuse delay in presentment for payment or non-presentment for payment.
10. The acceptor is bound to know the handwriting of the drawer; therefore in favor of a holder in due course, the acceptance admits the signature and capacity of the drawer, and the acceptor cannot afterwards show that the drawer's signature was forged, or that he was incapable of contracting. Where the bill is payable to drawer's order, acceptor also admits drawer's right to indorse. Whether the drawer's signature was on the bill at the time of acceptance makes no difference.
The acceptor also admits the capacity of the payee to receive, and consequently to indorse, and cannot afterwards show his inability to do so.
But if the bill when accepted is already indorsed in the name of an existing person, and the name turns out to have been forged, the acceptor may show this fact when sued on the acceptance by the indorsee, and it will then be a question whether the acceptor meant to give currency to the bill in spite of the forgery, in which case he will be liable upon it.
Where the drawing is by procuration, the acceptor only admits the authority to draw, but not that to indorse.
When the bill is drawn in a fictitious name, the acceptor undertakes to pay to an indorsement by the same hand.
If the acceptor's name be written by some other per
son, and the acceptor afterwards gives currency to the bill by admitting it to be his own, or treating it as such, or ratifying the act, he is liable.
11. An acceptor may be discharged by a holder expressly renouncing his claim, and for the whole amount, and this may be before or after the bill is due. The renunciation must be in writing, unless the bill be given up to the acceptor. But if it be by writing separate from the bill, and before due, it will not affect the right of any person to whom the holder may transfer for value and without notice. (See chap. xii.)
If a third person cancel the acceptance, the acceptor will only be discharged if it was done by the consent of the holder.
The holder may of course lose his claim on the acceptor by taking a new security in the place of the old one;-so easy is this that, if there are two joint acceptors, the separate note of one of them may be a renunciation of the holder's rights against the other.
No one can discharge the acceptor but the holder, or some one authorized by him.
12. The question, who may accept? depends upon the question upon whom is the bill drawn? If upon a single individual, who refuses to accept, no one else can accept, unless, as before mentioned, for the honor of the drawer; if upon two or more persons in mercantile partnership, any one partner can (see chap. ii) bind the firm by signing in the name of the firm; but if upon several persons not partners, they must every one accept, or the bill may be treated as dishonored; but those who accept will be bound.
LIABILITIES OF PARTIES.
(Sections 53-58 of B. of Ex. Act.)
1. Funds in hands of drawee.
2. Liability of acceptor.
3. Liability of drawer or indorser.
4. Stranger signing bill liable as indorser.
5. Measure of damages against parties to dishonored bill.
6. Transferor by delivery and transferee.
1. S. 53. (1.) A bill, of itself, does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not liable on the instrument. This sub-section shall not extend to Scotland.
(2.) In Scotland, where the drawee of a bill has in his hands funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder, from the time when the bill is presented to the drawee.
2. S. 54. The acceptor of a bill by accepting it(1.) Engages that he will pay it according to the tenor of his acceptance.
(2.) Is precluded from denying to a holder in due
(a.) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill.
(b.) In the case of a bill payable to drawer's order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement.
(c.) In the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to indorse, but not the genuineness or validity of his indorsement. 3. S. 55. (1.) The drawer of a bill by drawing it(a.) Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonored he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonor be duly taken.
(b.) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.
(2.) The indorser of a bill by indorsing it
(a.) Engages that on due presentment it shall be
accepted and paid according to its tenor, and