Page:The American Cyclopædia (1879) Volume I.djvu/77

 ACCEPTANCE 57 draft. The usual forms are, "Accepted" or "Honored," or the mere signature of the ac- ceptor written across the face of the bill. In New York, by special statute, the holder may require that the acceptance be written on the bill, and a refusal to comply with such request may be regarded as a refusal to accept, and the bill may be protested for non-acceptance. By the same statute, if the drawee receives the bill and then destroys it, or refuses to re- turn it within 24 hours, accepted or not ac- cepted, he is deemed to have accepted it. This is only a positive enactment of a rule, the principle at least of which is pretty firmly es- tablished in the general commercial law. For, though the detention of a bill is not essentially an acceptance of it, yet when it takes place under such circumstances as fairly justify the holder in supposing that an acceptance is in- tended, or if any other construction of the drawee's act would prejudice the holder with- out any fault on his part, it is fair enough to fix upon the former the same liability which he would have incurred by an actual accept- ance. The acceptance may be qualified or con- ditional ; as for a part of the amount which the draft calls for ; or to pay at a different time or place, or in a different manner from that re- quired; or when the drawee is in funds, or when certain goods in his hands are sold. If the holder accepts any of these variations from the tenor of the- bill, he is bound by them. But, as already said, he cannot safely assent to them if they are at all substantial variations, unless he has the consent of the other parties ; for their liability is founded on the very terms of the instrument, and they are not bound by any new conditions which the acceptor may propose, unless they expressly agree to them. The acceptance need not be in writing unless positive statutes require it. But for the pur- pose of preventing the inconveniences which result from an opposite rule, there are in many of the states positive statutes to that effect, and the best illustration of them is furnished by the statute of New York. It is provided there that no person shall be charged as an ac- ceptor on a bill unless his acceptance is in writ- ing and signed by himself or his lawful agent. But it is also provided for the benefit of a draw- er, that this and the other provisions of the act shall not impair any of his rights against a drawee, on the faith of whose promise to accept the bill the drawer drew and negotiated it. By the same statute it is declared, as indeed it is well established by the general commer- cial law, that any unconditional promise in writing to accept a bill, though made before it is drawn, amounts to an actual acceptance of the bill in favor of any person who took the bill for valuable consideration on the faith of such promise in-writing. Neither of these last rules of the statute, it will be seen, takes away or affects at all a drawer's undoubted right to damages against a drawee for breach of an agreement, made on good consideration with the drawer, to accept his bills. Under the. last cited provision of the statute it has been held in New York that an unqualified authority in writing or by telegraph to draw on one is equivalent to his unconditional promise to ac- cept the bill drawn ; and that a letter of credit which confers an absolute authority on the holder to draw bills upon the author of the letter is also an unconditional promise in writing to accept the bills drawn, within the same section of the statute; and in both cases the liability is enforced in favor of the persons who took the bills on the faith of the written authority. With the qualification, per- haps necessary, that the written promise to accept, or authority to draw be given within a reasonable time before or after the date of the bill, or contemplate or in some way fairly include the bills actually drawn, the rule or principle just stated is the general rule of the law. If the original drawee refuses to accept or cannot be found, and the bill has been duly protested, any other person may accept for honor, or, as it is sometimes said, supra pro- test. It may be for the honor of the drawer or an indorser, or for the honor of the bill generally ; and if it is intended to be for the benefit of any one especially, the acceptance ought to point him out. It is a conditional agreement by a volunteer to pay the bill at maturity if the original drawee does not. "When one has paid a bill for the honor of the drawer, for example, he may recover against him after proving presentation to the original drawee, non-acceptance or non-payment by him, and notice to the drawer; in short, by doing just what the payee must have done to sustain an action. This rule of the commercial law is well established, though it is utterly anomalous^ and forms perhaps the only excep- tion to the principle that no one can make another his debtor without his consent. The holder of a bill is of course not bound to re- ceive such an acceptance ; but if he does, he is bound to conform to the new condition of things, so that in order to hold the acceptor for honor he must call on the original drawee before applying to him ; and if he wishes to hold the drawee or other party, to whose ben- efit the acceptance for honor accrues in case of non-payment by the acceptor for honor, he must not only call on the original drawee, but also on the acceptor for honor, protest in both cases, and notify the prior parties. Every ac- ceptance admits the signature of the drawer;, so that an acceptor is liable to an innocent holder for value even though the drawer's sig- nature is forged. So also the acceptor admits the authority of one who has drawn as the agent of another. In case of non-acceptance of a bill, the holder is bound to give notice of the fact to the drawer or indorsers if he wishes to hold them. Mere failure to notify them will not be fatal to the holder's action against them, if he can show that they have sustained no in- jury from his omission; but the presumption