March, enclosed in the following letter to Barff and Son for acceptance: "We enclose Richard Brankston's draft 2007., which we shall be obliged to you to accept and return to us." Barff and Son took no notice of Mowbray and Co.'s letter of 25th February, 1815, inclosing the bill dated February 23d, 1815, until the Sth March, on which day they sent the following letter to Mowbray and Co., which was received by the latter according to the course of the post, on the 11th of March: "Ever since the receipt of your letter enclosing Richard Brankston's draft on us, we have been in expectation of receiving an invoice from him, to enable us to give it our acceptance. He wrote to request that we would not return the draft to you, but hold it till we received his invoice of the wool, for which he had drawn, which he promised should come in a post or two after the bill: the present is therefore to acquaint you, that we are not yet enabled to give the draft our acceptance, and that if you wish to have it returned, if you will write to us to that effect, we will do so, but we look for his invoice every post." Nothing further was heard by Mowbray and Co. from the defendants upon the subject of the two bills, until they received the following letter, dated Wakefield March 25th, 1815, and enclosing the two bills in question: "This morning's post brought us a letter from Mr. Richard Brankston, Wooler, desiring us to send payment for a sheet of wool, and a small balance we owed him to you. We have therefore enclosed you a bill value 30%., which please place to the credit of his account with you, and advise receipt. As we have 1818. MASON against BARFF. not 1818. MASON against BARFF. not thought it of any use holding the two bills drawn pass Brankston failed on the 15th March, 1815. Neither Bolton nor Mowbray and Co. knew any thing of the insolvent situation of Brankston at the time he discounted the 2007. bills. The question for the opinion of the Court was, whether the detention of the two several 2007. bills by Barff and Son, under the circumstances, and for the length of time above stated, amounted to an acceptance of them. Reader, for the plaintiffs, after admitting that the plaintiff's claim as to the second bill was not to be sup ported, contended, that the detention of the first bill by the drawee, from the 27th of February until the 8th of March, in point of law, amounted to an acceptance; for an acceptance may be made by the party's writing his name on the bill, or by a promise to pay an existing bill, or by any act from which such a promise is clearly to be inferred. Where a bill is left with the drawee for acceptance, unless he return it within a reasonable time, he must be presumed to have done that for which the bill was originally left, viz. accepted it. The usual course of business is, to leave the bill on one day and to call for it on the next, when it is returned accepted, or refused; and where bills are transmitted by the post, they ought in due course to be returned by the following post. Now here the bill was not so returned, nor was there any refusal to accept, and, therefore, the drawee must be presumed to have done that for which the bill was sent, viz. to have accepted it. In Harvey v. Martin (a), Lord Ellenborough is reported to have said, that the retention of a bill by the drawee, with whom it was left for the purpose of being accepted, is as much an acceptance as if the drawee had written his name upon the bill; and Trimmer v. Oddy (b) is an authority in support of the same principle; but whether or not the mere retention be in every case an acceptance, still, under the special circumstances here stated, this was an acceptance. For it appears to have been the course of dealing between these parties to return the bills by the next post; and in this particular instance only, the defendants kept the bill, in concert with the 1818. MASON agains BARFF. (a) 1 Campb. 426. (b) Guildhall sittings, 1800, Chitty, Bills of Exch. 160. drawer, 1818. MASON against BARFF. drawer. If they had intended to decline acceptance, their refusal ought to have been immediately notified to Mowbray and Co.; and in consequence of their silence, Mowbray and Co. were induced to discount the second bill; inasmuch, therefore, as they retained the bill, contrary to the usual course of business, their retention must be considered as an acceptance. Littledale, contrà. This does not amount to a constructive acceptance of the bill, either upon any general principle of law, or under the special circumstances of this case. An acceptance is a contract to pay the bill when due: the mere detention of the bill is at most no more than a breach of duty, in neglecting to return it within a reasonable time; a duty resulting only from the usage between the parties; but such detention is no evidence of a promise to pay the bill when due. Indeed if this were an acceptance, how could subsequent holders know whether the bill were accepted or not, as the acceptance would not appear on the face of the bill. So that great inconvenience would arise: and in deciding a case of this kind, the Court will feel disposed to lay down a rule that will be most convenient for the purposes of commerce and the negotiability of bills. It has never been decided, that the mere detention of a bill by the drawee is an acceptance. upon special circumstances; an authority the other way. of this case come to be considered, it is clear, that the defendants only meant to accept this bill, upon a condition which has not been complied with; and that Mowbray and Co. themselves never considered the bill (a) 1 Barn. & Ald. 653. The cases cited all turn and Jeune v. Ward (a) is When the circumstances as as accepted. In the letter of the 30th of August, Mowbray and Co. are apprized by the defendants of their course of dealing with Brankston, and are desired to make the inquiry there pointed out, and they are in-. formed, that if Brankston sends the wool and the.. carrier's receipt, the bills will be accepted. But here the wool was not delivered, nor was the carrier's receipt sent, and Mowbray and Co., therefore, ought to have known that the bill would not be accepted, and.. they acted as if they thought so, for they made no complaint, nor did they affect to treat it as an accepted bill, until after Brankston's insolvency. This, therefore, is not an acceptance, inasmuch as the pro-, mise to accept was only upon a condition which has never been complied with, and as the parties them-. selves have never considered it as an accepted bill. BAYLEY J. It seems to me that the plaintiffs are not entitled to recover, and that this bill is not to be considered as accepted. Constructive acceptances ought to be watched with the utmost care, for when a party puts his name on a bill, he knows what he does, and that he thereby enters into a contract; but it is laying down a very loose and dangerous rule, when any. degree of latitude is given to these cases of constructive. acceptances. A constructive acceptance is where the. drawee, without actually putting his name on the bill (which is the usual mode of accepting), assents to be-. come liable as acceptor. In any such case, the con-, sent of the party sought to be charged as acceptor, should be clearly to be inferred from his conduct. Supposing that the detention of the bill would in some cases in point of law amount to an acceptance, does it clearly appear in this case that by such detention the VOL. II. defendant D 1818. MASON against BARFF. |