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1818.

REES against WARWICK.

prove that fact. But it appeared that in those letters different expressions had been used, and the jury were of opinion that the words " shall have attention" had not, as between these parties, clearly and unequivocally signified the acceptance of a bill. The learned Judge thereupon directed a nonsuit, with leave to move to enter a verdict for the plaintiff, in case the Court should be of a different opinion. And now

Richardson moved accordingly. It is clear that a bill of exchange may be accepted by a letter written to the drawer, and that too, after he has parted with the bill. That appears from the cases of Powell v. Monnier (a), and Wynne v. Raikes (b). Then if so, the only remaining question in this case will be, whether the letter of the defendant amounted to an acceptance of the bill. There is no particular form of words necessary for this purpose. It appeared on the trial, that other letters, respecting other bills, had been written by the defendant, in some of which he had said that the bills "should have attention," in others that they "should meet protection;" and all these bills had been paid. Now, with respect to the present bill, the case stands thus. The drawers wrote word to the defendant that they had drawn a bill upon him, and added, "which please to honour." And his answer to it was, that the bill "should have attention." The fair import, therefore, of that is, that it amounts to a promise on his part, that the bill when presented to him should be honoured. And that would be an acceptance of the bill by him.

(a) 1 Atk. 611.

(b) 5 East, 514.

Аввотт

ABBOTT C. J. I have no desire to break in on the authority of the two cases which have been cited; but I think, that if a letter written to the drawer of a bill of exchange, after he has parted with it, is to be holden to amount to an acceptance of the bill, that letter ought to be in terms which do not admit of any doubt. In both the cases referred to, there was no doubt; for in Powell v. Monnier, the letter stated, "that the bill should be duly honoured." And in Wynne v. Raikes, "that the defendants would accept or certainly pay the bill." But here the defendant, in his letter, says "your bill for 100l., in favour of W. Johnson and Co., shall have attention." The phrase "shall have attention," is at least ambiguous; it may mean, that the defendant would examine and enquire into the state of the accounts between them, for the purpose of ascertaining whether he would accept the bill or not. If, indeed, it could have been shewn, that these words, either generally in the mercantile world, or as between these individual parties, meant an acceptance of the bill to which they related, the case would have been different. But that has not been done. It is true, indeed, that several letters were produced at the trial for that purpose, but in those letters, the forms of expression used by the defendant varied. At all events, the utmost that could be done, would be to leave those letters (as they were left) to the jury, for them to draw the conclusion as to the meaning of the words used; and it appears that the jury thought that the meaning of the words "shall have attention," was by no means clearly and unequivocally an acceptance of the bill. Unless that is the clear and unequivocal meaning of those words, the plaintiff, in my opinion, is not entitled to recover.

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1818.

REES

against WARWICK.

1818.

REES against WARWICK.

HOLROYD J. I am of the same opinion. The very circumstance, that it has been so often lamented that any thing short of a written acceptance on the face of the bill should be held to make a party liable as acceptor, shews the inconvenience that arises from the great uncertainty which is thereby introduced. In this case the words contended to be an acceptance are, that the bill "shall meet attention." The defendant does not say, as in Wynne v. Raikes, that the bill "shall be paid or accepted;" but in fact only that he will attend to it. Consistently then with these words it might depend on the state of the account between them, whether he would accept the bill or not. And it does not appear from the other letters which were produced, that the defendant used these particular words as denoting the acceptance of a bill; for he uses different phrases in the different letters. I think, therefore, that this rule ought to be refused.

BAYLEY J. (who tried the cause,) concurred.

Rule refused.

Saturday,
Nov. 7th.

Payment of money into court generally on the whole

declaration ad

mits the contract as stated in each count,

and a breach of

it, and that

STOVELD against BREWIN and Another.

THE declaration stated the contract between the

parties to be," that the plaintiff had sold to the defendants, a large quantity of oak-bark, to be delivered in his yard at Bermondsey, at the average price at which the plaintiff had sold or might sell to the

something is due on each count thereon; but it does not admit the amount of the breach

there stated.

tanners

tanners in London that season, and which price was to be ascertained by the 10th October, the payment to be as last year." It then contained the following averment, "that afterwards and before the 10th day of October then next, the average price at which the said plaintiff then sold the said oak-bark to the said other tanners in London, was theretofore, to wit, on the 10th day of October then next, ascertained, and that such average price amounted to a certain large sum of money, to wit, the sum of 317. 10s. for each load." The defendants paid money into court generally upon the whole declaration. At the trial at the last Sussex assizes, before Abbott C. J. the only question between the parties was as to the amount of the average price per load of the oak-bark. Courthope for the plaintiffs, contended, that the payment of money into court generally was an admission of every averment in the declaration necessary to support the plaintiff's case; amongst which was the averment that the average price was 31. 10s., but the learned Judge thought, that notwithstanding the payment of money into Court, it was still open to the defendants to contend, that the amount of the average was not so much as that stated in the declaration. The jury found for the defendants, and now

Courthope moved for a new trial upon this ground, and recapitulated his former arguments, and he cited Cox v. Brain (a), Yate v. Willan (b), and Mellish v. Allnutt (c); but

1818.

STOVELD

against

BREWIN.

(a) 3 Taunt. 97.

(b) 2 East, 128.

(c) 2 M. & S. 111.

1 3

The

1818.

STOVELD against BREWIN

The

The Court held, that the payment of money into court generally on the whole declaration, admitted only a cause of action on each count and a breach, and something due thereon, but not the amount of the breach there stated; for the defendant, when he pays the money into Court, expressly contends, that the breach does not extend beyond the sum so paid in. Here the defendants have admitted, that an average was struck, but not the amount of that average. case of Cox v. Brain is very different from this, for in that case there was a specific bargain to pay a particular sum, and the payment of part of the money into Court, which admitted the bargain, admitted the sum also, which was originally due; and the only question that could be raised after that admission would be, whether the remainder of the money had been previously paid or not. And Holroyd J. added, that in the case of a contract for the payment of a certain quantity of foreign money, where the declaration contains an averment of its value in English money, there even after judgment by default, it is still necessary to prove the value. So also after judgment by default in an action for the treble value of tythes, the value is not thereby admitted, although it is stated in the declaration. And the payment of money into Court, must be governed by the same principles.

Rule refused.

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