accepted a bill, discounted it before maturity, and the argument was that, in thus cashing it, he had paid it. But the court said it was neither acceptance nor was it payment, unless such was the express intention of the parties. In United States Nat. Bank of Vale v. First Trust & Savings Bank of Brogan, the drawee authorized a prospective indorsee over the telephone to accept for him in writing on the bill, which was done. It was held that the rule of agency that one party to a contract cannot be the agent of the other to sign for him without the full knowledge of the principal prevented this from being an acceptance signed by the drawee, and the drawee was consequently not liable as acceptor. So that if a drawee receives and discounts a bill for the drawer, and then discounts it away, the drawer and not the acceptor, is the person who must ultimately pay the bill. But the drawee upon acceptance, in the order of liability, becomes the principal debtor. He is precisely like the maker of a promissory note. This means that all parties may look to him to pay the instrument, that no demand need be made of him, and that notice of dishonor to him is unnecessary-all matters of moment in business affairs.

tile Co. v. Adkinson, 167 Ala. 344, 52 South. 419 (N. I. L.); Izzo v. Ludington, 79 App. Div. 272, 79 N. Y. Supp. 744, affirmed 178 N. Y. 621, 70 N. E. 1100 (N. I. L.); Lawson v. Layton & Layton (Del.) 86 Atl. 105 (N. I. L.); Rambo v. First State Bank, 88 Kan. 257, 128 Pac. 182 (N. I. L.); Sheets v. Coast Coal Co., 74 Wash. 327, 133 Pac. 433 (N. I. L.) semble. Under similar statutes before the N. I. L. the same result was reached. Dickinson v. Marsh, 57 Mo. App. 566. The same rule applies to checks under N. I. L. § 185, providing that a check is a bill of exchange drawn on a bank payable on demand. Baltimore & O. Ry. Co. v. First Nat. Bank, 102 Va. 753, 47 S. E. 837 (N. I. L.).

4 60 Or. 266, 119 Pac. 343 (N. I. L.).

5 Chapman v. White, 6 N. Y. 412, 57 Am. Dec. 464; Winter v. Drury, 5 N. Y. 525; Duncan v. Berlin, 60 N. Y. 151.

6 Wallace v. McConnell, 13 Pet. 136, 10 L. Ed. 95, which contains cases on this point; Foden v. Sharp, 4 Johns. (N. Y.) 183; Wolcott v. Van Santvoord, 17 Johns. (N. Y.) 248, 8 Am. Dec. 396; Russell v. Phillips, 14 Q. B. 891; JARVIS v. WILSON, 46 Conn. 90, 33 Am. Rep. 18, Moore Cases Bills and Notes, 5; Cox v. National Bank of New York, 100 U. S. 712, 25 L. Ed. 739.

With these shifts of liability on the part of the drawee before and after acceptance, there is a corresponding change of liability on the part of the drawer. If the drawee refuses to accept, after having promised so to do, the drawer may either sue him directly upon the promise for all loss occasioned, or he may fall back upon their original relation for his remedy. If it was debt, as in the case we put, he must sue on the indebtedness. In such a case, too, as we have already shown, all prior parties must look to the drawer to be repaid the moneys they have expended on taking the bill. The drawer remains, at all times, the principal debtor on the bill. On the other hand, upon acceptance the drawer is relieved from primary liability upon the bill, and stands as to the other parties to the instrument in the position of first indorser. He is liable to pay the bill if the acceptor does not. A glance at the example will show the fairness of this. A. received from B. cash for a debt C. promised to pay; B. received cash from D.; and D. from E. If C. fails in his promise, the cash received should be refunded in the order it was paid. This would leave the controversy as it ought to be between C. and A.

So far as classification is concerned, acceptances may be classified according to their essential elements, and according to their technical form. In their essential elements, acceptances are analogous to the acceptances of offers in ordinary contract law. As with the acceptance of the offer in the ordinary contract, the acceptance of the bill of exchange must, in every respect, meet and correspond with the terms contained in the bill itself. It must neither fall within or go beyond these terms, but must exactly meet

7 Ilsley v. Jones, 12 Gray (Mass.) 260; Riggs v. Lindsay, 7 Cranch, 500, 3 L. Ed. 419; Van Wart v. Woolley, 5 Dowl. & R. 374; Allen v. Suydam, 20 Wend. (N. Y.) 321, 32 Am. Dec. 555; Barney v. Newcomb, 9 Cush. (Mass.) 46.

8 Potts v. Whitehead, 23 N. J. Eq. 512; Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556; Eads v. City of Carondelet, 42 Mo. 113; Corcoran v. White, 117 Ill. 118, 7 N. E. 525, 57 Am. Rep. 858; Siebold v. Davis, 67 Iowa, 560, 25 N. W. 778; Northwestern Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557; Clark, Cont. p. 36.

10

them at all points. In technical phrase, it must be according to the tenor of the bill. Again, as with the ordinary contract, an offer made to one person cannot be accepted by another. The drawee, or some person who, in view of law, is the same as the drawee, must be the acceptor.1 In their technical form, acceptances may be express or constructive, oral or written.12 Express acceptances are those expressed in the words of the drawee; constructive, those implied from his acts. Written acceptances are assents written either upon the bill itself, or upon a piece of paper separate from the bill. The common, general principles governing the detail of form of a written acceptance are that it need not be dated; it may be accepted by the drawee in any name he chooses to adopt; 13 it may be placed upon a bill before it has been signed by the drawer, or after it is overdue, or after dishonor.14 With these general observations as to the nature and form of acceptances, let us turn and examine more carefully their specific details.

9 See post, § 42.

10 Price v. Easton, 4 Barn. & Adol. 433; Leake, Cont. 481; Tuttle v. Catlin, 1 D. Chip. (Vt.) 366, 12 Am. Dec. 691; Rossman v. Townsend, 17 Wis. 95, 84 Am. Dec. 733; Ross v. Milne, 12 Leigh (Va.) 204, 37 Am. Dec. 646; Ellison v. Jackson Water Co., 12 Cal. 542; Seaman v. Whitney, 24 Wend. (N. Y.) 260, 35 Am. Dec. 618; Fugure v. Mutual Soc. of St. Joseph of Burlington, 46 Vt. 362; Haskett v. Flint, 5 Blackf. (Ind.) 69, 33 Am. Dec. 452; Clark, Cont. p. 508.

11 See post, § 46.

12 Sturges v. Fourth Nat. Bank of Chicago, 75 Ill. 595, Johns. Cas. Bills & N. 69; Dull v. Bricker, 76 Pa. 255; Averill v. Wood, 78 Mich. 342, 44 N. W. 381; Peterson v. Hubbard, 28 Mich. 197; Grant v. Shaw, 16 Mass. 341, 8 Am. Dec. 142; Wells v. Brigham, 6 Cush. (Mass.) 6, 52 Am. Dec. 750.

13 Lindus v. Bradwell, 5 C. B. 591; Alabama Coal Min. Co. v. Brainard, 35 Ala. 476; Nicholls v. Diamond, 9 Exch. 154. See N. I. L. §§ 18, 43.

14 N. I. L. § 138. London & Southwestern Bank v. Wentworth, 5 Exch. Div. 96; Harvey v. Cane, 34 Law T. (N. S.) 64.

ACCEPTANCE ACCORDING TO TENOR

42. The acceptance must be absolute and according to the tenor of the bill to bind all the parties to it.

43. THE TENOR OF THE BILL-Is the request in the bill to pay the money at the time and place and in the manner mentioned in it. A change in the acceptance in any one of these respects renders the acceptance "qualified.”

44. The payment of the bill by the acceptor may be made dependent on a condition. It is then called "conditional" acceptance.

45. A qualified or a conditional acceptance is only valid(a) As to all parties subsequent to the acceptance.

(b) As to all prior parties who, upon due notice, assent.

The general principle is that, for an instrument or an act to be an acceptance, it must be according to the tenor of the bill.15 15 The promise must be to pay all the money called

15 N. I. L. § 132. Wegersloffe v. Keene, 1 Strange, 214; BOEHM v. GARCIAS, 1 Camp. 425, note, Moore Cases Bills and Notes, 92. This was on a bill, "payable in effective and not in vals reals." The drawee offered to accept payable in vals denaros, but this was refused. It was held that the plaintiff had a right to so refuse, and that the proposed acceptance was not a sufficient acceptance of a bill drawn as was this one. The acceptance should have been general. Gibson v. Smith, 75 Ga. 34; Shackelford v. Hooker, 54 Miss. 716. In PETIT v. BENSON, the acceptance was, "I do accept this bill to be paid half in money and half in bills." It was held that a partial acceptance would charge the acceptor, but also that it might be refused and protested by the one to whom the bill was due, so as to charge the first drawer. Comb. 452, Moore Cases Bills and Notes, 92. In an action upon a bill of exchange, it was held that, where the day of payment was past at the time of acceptance, an agreement to pay secundum tenorem et effectum bille was equivalent to a general acceptance, for the reason that it was then impossible to pay as is directed in the bill. Jackson v. Pigott, 1 Ld. Raym. 364; Ford v. Angelrodt, 37 Mo. 50, 88 Am. Dec. 174, Johns. Cas. Bills & N. 76; Swope v. Ross, 40 Pa. 186, 80 Am. Dec. 567. A telegram in response to an inquiry whether the defendant would pay a certain bill read:

for in the bill, for, if a bill be accepted for only part of that sum, it would result in splitting up the right of action on the bill, part being chargeable to the acceptor, and part to the drawer; it would necessitate a partial protest for non-acceptance and for non-payment; and lastly, on payment, the drawee would be entitled to demand the possession of the bill, and his possession of it would be presumptive evidence of the payment of the whole bill, though he has in fact paid only part of it. These, of course, are grave reasons against such an instrument acting as a circulating medium. So, also, equally grave business objections exist against modifying the assent to the bill, as to the time, place, or manner of its payment, or making its payment conditional. For if, in the illustration at page 116, the bill was a 6-months bill, and B., D., and E. were indorsers upon it, and the bill were payable in Jamaica, B., D., and E., as indorsers, might make all their calculations to pay the money at that time and place if C., the acceptor, did not. It would therefore be an injustice and hardship to B., D., and E. if C. were to accept the bill in three months, payable at London, England, because, if C. did not pay at that time and place, the holder might sue B., D., and E., who had every right to expect that they would not be called upon to pay until after the expiration of 6 months, and then at Jamaica. Thus such a rule is necessary to protect the other parties to the bill. And, taking all things into consideration, it is wiser to disallow than to allow them.

But the student must not understand that such an acceptance is not binding upon the drawee. It is enforceable between the acceptor and the holder, notwithstanding the

"Will pay M.'s draft on me two fifty for horses." It was contended that the word "for horses" made the acceptance conditional, but the court held that they were a mere statement of the consideration, and that the telegram was a general acceptance. State Bank of Beaver County v. Bradstreet, 89 Neb. 186, 130 N. W. 1038, 38 L. R. A. (N. S.) 747 (N. I. L.). A "general acceptance" of an order payable on a contingency evidences a promise to pay upon the happening of the contingency, but not otherwise. Hannay v. Guaranty Trust Co. of New York (C. C.) 187 Fed. 686; Ross v. W. D. Cleveland & Sons (Tex. Civ. App.) 133 S. W. 315.