to the party who makes himself liable for payment implies not only that the order and conditions of liability should be clear, but that the promising party should put his name to the instrument in such a way as to manifest his intention to assume the liability. Certainty as to amount is a requisite strictly enforced; and while a particular fund might sometimes be mentioned in the instrument, or the payment might be directed in gold coin instead of paper currency: or, in other words, in one kind of lawful money rather than another; while, too, payment with interest added or (in bills of exchange) with exchange is undoubtedly proper; yet, as a rule, the principal sum payable must be stated definitely, and must be in lawful money, and must not be connected with any indefinite or uncertain stipulations.2

§ 446. The Same Subject. Certainty as to time of payment is construed more liberally, but yet with precision; thus, a promise to pay when C. shall arrive at age vitiates an instrument as a note or bill with its peculiar incidental advantages, for C. may die a minor. But the date need not be written in a note, nor is a note vitiated by being dated forward or antedated, for the true date may be supplied. When no time of payment is mentioned, the presumption is

exchange accepted on good consideration, but with the drawer's name left blank, may be completed in chancery after the acceptor's death. 20 Ch. D. 225.

1 The signature may be by agent; and if the suitable intention clearly enough appear, the promisor's own name signed in any part of the paper, or even his initials, will make the note complete and binding; though he would be foolish not to put his signature at the foot of the promise, where it belongs, and write it out with reasonable fulness. 1 Pars. 3537. See Sanders v. Anderson, 21 Mo. 402; Merchants' Bank v. Spicer, 6 Wend. 443; Ferris v. Bond, 4 B. & Ald. 679. Whether equity may supply an omission to sign, through mistake, see 100 Mass. 18; 35 Mich. 50.

2 See Dewing v. Sears, 11 Wall. 379; 1 Pars. Notes and Bills, 37, 38, 45-47; Redf. & Big. 1-6; Kelley v. Brooklyn, 4 Hill, 263; Thompson v. Sloan, 23 Wend. 71; Shamokin Bank v. Street, 16 Ohio St. 1; Cook v. Satterlee, 6 Cowen, 108. An instrument may be payable in currency or funds which are shown to circulate as money. American Emigrant Co. v. Clark, 47 Iowa, 671. There are other American cases which treat a note as good, for some purposes at least, though not expressed as payable in what would be called

577

that the note or bill is payable on demand; and where a note is payable on demand, it is clear that (subject to statutes of limitation) the note is due when the demand is made, though the original parties may have no idea when that time will come.1 Certainty as to the fact of payment implies that there should be nothing contingent or conditional in the promise to pay. Where, instead of a mere reference to some fund, the writing directs payment out of that fund only; or where the payment depends upon the performance of some corresponding obligation; or where it is contingent upon expectations which may not be realized; in these and similar instances the instrument is not a negotiable note or bill, however valuable in the light of an assignment. But it is no objection to a note or bill that it states the transaction out of which it arose, the consideration for which it was given, or by way of memorandum that other property is deposited as collateral security; 2 nor even that it states a liability to

1 Kelley v. Hemmingway, 13 Ill. 604; Redf. & Big. 11-14; 1 Pars. 3842; Michigan Ins. Co. v. Leavenworth, 30 Vt. 11; Pasmore v. North, 13 East, 517. See Sayre v. Wheeler, 31 Iowa, 112.

As to bills, &c., payable at sight, there should be presentment within a reasonable time. Muilman v. D'Eguino, 2 H. Bl. 565; Big. Bills and Notes, 2d ed. 244.

21 Pars. Notes and Bills, 42-47, and numerous cases cited; ib. 60-65; Redf. & Big. Bills and Notes, 8-10; Cook v. Satterlee, 6 Cow. 108; Goshen v. Hurtin, 9 Johns. 217; Cota v. Buck, 7 Met. 588; 1 Burr. 323; Guyman v. Burlingame, 36 Ill. 201; Ehrics v. De Mill, 75 N. Y. 370; 25 Minn. 530; 53 Wis. 537; Worden v. Dodge, 4 Denio, 159; Collins v. Bradbury, 64 Me, 37. See Griffin v. Weatherby, L. R. 3 Q. B. 753. An order, draft, or check must be drawn upon a particular fund in order to constitute an equitable assignment thereof. Attorney-General v. Conti

nental Life Ins. Co., 71 N. Y. 325. See further Big. 2d ed. 20.

Big.

Negotiability is not essential to constitute an instrument a bill of exchange or promissory note; though one hinders thus a very convenient quality of such instruments. Bills and Notes, 2d ed. 12; Arnold v. Sprague, 34 Vt. 402; 2 Ld. Raym. 1545; Corbett v. Clark, 45 Wis. 403. If the instrument be payable to order, indorsement makes the negotiability effective; if payable to bearer generally, the title will pass by delivery. Supra, § 84. And hence any such instrument may be restricted in its practical circulation. As to the effect of making an instrument payable "before" a certain date, cf. Stults v. Silva, 119 Mass. 137; Helmer v. Krolick, 36 Mich. 371. An important word, such as "dollars," may sometimes be supplied by parol, if accidentally omitted. Beardsley v. Hill, 61 Ill. 354.

The mere fact that the seal of a corporation is added does not make

become due before its date if others of the same series are defaulted.1

We may add, on the point of essentials, that, as a rule, whenever it is doubtful upon the face of an instrument whether it was intended as a bill of exchange or a promissory note, and it possesses the requisites of each, the holder may choose to treat it as one or the other.2

§ 447. Principal Parties, etc., compared in Bills and Notes. The maker of a note and the acceptor of a bill have nearly the same rights and duties; both of these being the principal parties, to be called on for payment before any other parties are liable. And so, too, the drawer of a bill corresponds mainly, in this relation, to the first indorser of a note. Let us, then, see what is acceptance; and, somewhat later, what is indorsement.

§ 448. Acceptance of a Bill of Exchange. Acceptance is the engagement to comply with the order contained in a bill of exchange. Acceptance may be constituted in a variety of ways. The usual method is for the drawee of a bill to write across the face, perhaps in red ink, the word "Accepted," and then sign his name. But the law merchant requires less formality, as by mere signature for instance, - regarding evidently actual intent, in such cases, as of far more importance than the method of expressing that intent; and so lax is it, indeed, that local statutes are sometimes brought in to stiffen

the note the contract of the corporation. Dutton v. Marsh, L. R. 6 Q. B. 361. As to the effect of describing as agents, trustees, etc., in a signature, and whether one is bound thus personally, see ib.; Story Agency, §§ 266, 267; Big. 2d ed. 46, 47; Shoe & Leather Bank v. Dix, 123 Mass. 148; Gray v. Raper, L. R. 1 C. P. 694; Haile v. Pierce, 32 Md. 327. And as to corporate officers see Falk v. Moebs, 127 U. S. 597. Paper given under seal is (independently of statute) a bond or specialty debt, and not a bill or note. This strict rule is sometimes affected by legislation.

Laidley v. Bright, 17 W. Va. 779; 85
N. C. 166. See next chapter.

A written statement on the note that it is given as "collateral" would, according to many authorities, restrict its negotiability; though there is a conflict on this point. Jury v. Barker, E. B. & E. 459; 1 M. & W. 232; Treat v. Cooper, 22 Me. 203; 5 Duer, 207; Costello v. Crowell, 127 Mass. 293.

1 Chicago R. v. Merchants' Bank, 136 U. S. 268.

2 See Edis v. Bury, 6 B. & C. 435; 1 Pars. 63; Guyman v. Burlingame, 36 Ill. 201; Willans v. Ayers, 3 App. Cas. 133.

the requirements. A written and signed acceptance is sometimes made essential, then, by legislation; but in the absence of legislation even a verbal acceptance is valid, if communicated to the party who takes the bill, and if he takes it on the credit of that acceptance.1 It behooves the drawee who would avoid liability as an acceptor to refuse acceptance when the bill is presented to him; though the cases do not make it absolutely sure that simple silence and delay on his part would render him liable; and if he once accepts in writing, and the bill is delivered back to the person presenting it for acceptance, the acceptor's liability to all holders is generally fixed as a principal party, without reference to the person who presented the bill.2 Where a corporation draws upon itself, or a partner upon his firm for partnership purposes, or an individual on himself, in these and like instances the instrument seems to be rather a promissory note than a bill of exchange, and at all events the act of drawing is deemed a sufficient acceptance. The legal effect of acceptance is

3

1 See Spear v. Pratt, 2 Hill, 582; In re Agra, &c. Bank, L. R. 2 Ch. 391; Spaulding v. Andrews, 48 Penn. St. 411; Ward v. Allen, 2 Met. 53; Rees v. Warwick, 2 B. & Ald. 113; Redf. & Big. 41-43; 1 Pars. 281-286; Byles, c. 6, § 1.

21 Pars. 286-291; Grant v. Hunt, 1 C. B. 44; Redf. & Big. 43. As to complete or incomplete acceptance, see Bank of Van Diemen's Land v. Bank of Victoria, L. R. 3 P. C. 526; Carson v. Russell, 26 Tex. 452.

3 Marion, &c. R. Co. v. Hodge, 9 Ind. 163; Dougal v. Cowles, 5 Day, 511; Hasey v. White Pigeon Sugar Co., 1 Doug. (Mich.) 193. It is immaterial where one places his name, if his purpose be the execution of the contract. Rodocanachi v. Buttrick, 125 Mass. 134. But as to extending this doctrine so as to treat one who writes on the back as though he had written on the face, see Indorsement, post; Big. 2d ed. 44, and conflicting cases cited.

Under what circumstances, it may be asked, is a promise to accept equivalent to acceptance? since it so frequently happens that prudent men in business arrange, before drawing on one another, to what an amount and in what sums their bills shall be honored. In this country it appears to be well settled that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance. Coolidge v. Payson, 2 Wheat. 66. And see Townsley v. Sumrall, 2 Pet. 170; 64 Ala. 1. But an offer to accept a draft may be withdrawn by letter, provided the letter reach the drawer before presentation of the draft for acceptance. Ilsley v. Jones, 12 Gray, 260. Regret has been expressed in many quarters that this doctrine of a virtual acceptance of non-existing

to confirm and establish the bill as originally drawn upon the acceptor; it signifies that the bill was drawn rightly upon him and that he will answer for its due payment.

§ 449. The Same Subject. — There is such a thing as a conditional or qualified acceptance; the cases, however, running pretty closely here, and the law being in rather an unsatisfactory state; though the principle is that any acceptance which varies the original tenor of a bill ought to receive the sanction of the drawer and all other prior parties, to make the bill hold good. And a sort of conditional or qualified acceptance is that of an acceptance supra protest or for honor, which may be given where the drawee, who declines to accept the bill generally, not being bound to do so, accepts it supra protest for some one or more of the parties, and stands rather as indorser than acceptor; or, as more generally happens, where some stranger steps in, after the drawee's refusal to accept and a protest, to save the bill from the disastrous consequences of being publicly dishonored. The law on the subject of acceptance supra protest, which is derived from the law merchant, constitutes an exception to the old rule

bills was ever advanced; and, as the English courts do not perhaps go so far, it is well to consider this doctrine as restrained in this country within the above limitations, not to speak of legislation to the contrary. In fact virtual acceptance is a doctrine of common law contract rather than of the law merchant. And hence, in the matter of non-existing bills, a distinction may be proper between the rights of one who afterwards takes on the faith of a promise to accept, and the rights of one who does not; between bills drawn and payable within a reasonable time after the promise, and bills which are not, and so on. See Redf. & Big. 49-51, and cases cited; Wildes v. Savage, 1 Story, 22; Plummer v. Lyman, 49 Maine, 229; Chitty Bills, 284-286; Bank of Ireland v. Archer, 11 M. & W. 383; 1 Pars. 292-300. And see Exchange Bank v. Rice, 98

Mass. 288; 107 Mass. 37; Carr v. National Security Bank, 107 Mass. 45; McCutchen v. Rice, 56 Miss. 455. And in order to bind as acceptor one who has promised to accept a nonexisting bill, the bill must be pointed out and described in terms not to be mistaken. Boyce v. Edwards, 4 Pet. 111. Authority to draw at sight for a specified amount is not acceptance of a particular draft, but it implies a promise upon which any bonâ fide holder may rely. Franklin Bank v. Lynch, 52 Md. 270. But authority to draw for a larger amount is utterly inconsistent with such promise. 73 Mo. 172. See further, Carter v. White, 20 Ch. D. 225.

1 See Redf. & Big. 107, 108; United States v. Bank of Metropolis, 15 Pet. 377; Newhall v. Clark, 3 Cush. 376; Wintermute v. Post, 4 Zabr. 420; 1 Pars. 300-312, and cases cited.