A conditional acceptance is an absolute acceptance of a conditional order or a conditional acceptance of an absolute order. Of the first sort are acceptances of orders payable out of a particular fund or if certain funds should be realized.1 Such acceptances are impossible to arise upon bills of exchange, because such documents are not bills of exchange.2 A conditional written acceptance of a bill of exchange must be one that is made so upon its face, because an absolute written acceptance cannot be shown to be conditional.3 But conditional written acceptances may be acceptances of a bill to be drawn where the acceptance might be considered conditional, as we have heretofore seen.4 Oral acceptances may be conditional in the same ways as written acceptances are.5 If the acceptance is conditional, the holder's assent to it makes the acceptor liable upon the happening of the contingency named in the order.6 If that condition has already happened, the order and acceptance are absolute;7 but, if possible, a condition will be applied to things to happen in the future, not to matters which have already happened.8 Again, the acceptor cannot, by his own act, defeat the condition and thus destroy the effect of the order.9 The same rules are applied to acceptances of orders which are made conditional.10 They will be given a prospective operation,11 and cannot be defeated by the act of the acceptor;12 but otherwise the acceptor does not become liable until the contingency has happened,13 but when it has happened his liability is absolute.14 An offer of a conditional acceptance is a continuing one and may be acted upon until revoked.15 But a general acceptance of an order drawn on condition that the paper is presented at a certain time renders the ac-

14 Lambert v. Jones, 2 Pat. & H. 144 Lien by agreement, see Coats v. Donnell, 94 N. Y. 108; and for the lien of holders upon securities to secure acceptances, see Kramer's Appeal, 37 Pa. 71.

15 Pratalongo v. Larco, 47 CaL 378; Gibson v. Bailey, 24 Miss. 237. See Millaudon v. Arnaud, 4 La. 542.

16Henrick v. Farmers' Bank, 8 Port 539; Gibson v. Bailey, 24 Miss. 237; Van Arsdale v. Boardman, 3 How. Pr. 60.

17Bowen v. Stoddard, 10 Met. 375; Manning v. Kohn, 56 Ala. 235.

18 Russell v. Wiggin, 2 Story, 213. 19 City Bank v. Gerard Bank, 10 La. 562.

1 See Seymour v. Lumber Co., 58 Fed. R. 957, 16 U. S. App. 245.

2 See Sec. 242, post, and Sec. Sec. 207 and 208, ante.

3 Haines v. Nance, 52 I11 App. 406; Cowan v. Hallock, 9 Cola 572; Heavener v. Donnel, 7 Smedes & M. 244. A conditional acceptance must be clearly expressed. Coff-man v. CampbeU, 87 I11. 98.

4 See Sec. 220, ante. The acceptance is conditional upon the bill conforming to the authority; but this use of language is not accurate. No acceptance ever existed.

5 See, for instance, Phelps v. North-rup, 56 I11. 156, and Hall v. Steel, 68 I11 231, where the acceptance implied was conditional ceptor liable even if the paper be not presented at that time,16 and the same rule ought to apply to a conditional acceptance of a general order. Acceptances payable out of certain funds are conditional,17 but absolute when the fund is realized-,18 and the acceptor cannot put it out of his own power to collect the fund.19 Acceptances according to the terms of a certain contract are conditional,20 as are acceptances out of the proceeds of work to be done, or out of the proceeds of a certain contract, or out of the proceeds of certain goods to besold.21 Conditional acceptances result where the acceptance is made conditional when in funds,22 and where an order is so accepted the holder cannot resort to the drawer until the drawee refuses to pay when in funds,23 and the construction of funds is that the word means cash.24 The drawee cannot defeat by his own act the realization of funds,25 nor can the drawer countermand the order after acceptance.-'6 The burden is upon the holder of the order to show the drawee's possession of funds when suing upon such an acceptance.27 It must be noted that a conditional or variant acceptance, if not notified to prior parties on the bill, discharges those prior parties.28 The acceptance must be made by the drawee or by his agent.29 If accepted by

6 Read v. Wilkinson, 2 Wash. C. C. 514; Ford v. Angebrodt, 37 Mo. 50; Rice v. Porter, 16 N. J. Law, 440; Tyler v. Stalk, 103 Mich. 268; Cum-mings v. Hummer, 61 111. App. 393; Henry v. Hazen, 5 Ark. 401; Walker v. Lide, 1 Rich. Law, 249; Riley v. Smith, 64 N. Y. 576; Keyes v. Fol-lett, 41 Ohio St. 535; Gill v. Weller, 52 Md. 8. See Newhall v. Clark, 3 Cush. 376.

7 Brabazon v. Seymour, 42 Conn. 551; Phillips v. Frost, 29 Me. 77.

8United States v. Metropolis Bank, 15 Pet. 377.

9 Herter v. Goss Co., 57 N. J. Law, 42; Phelps v. Northrup, 56 I11. 156. The drawer cannot countermand after acceptance. Northern Bank v. Leverich, 8 Rob. (La.) 207.

10 Consult the cases in note 6, supra, and Granmer v. Carrol, 4 Cranch, C. C. 400.

11 Consult the case in note 8, supra.

12 See cases in note 9, supra,

13 See cases in note 6, supra, and Marshall v. Clary, 44 Ga. 511.

14 Granmer v. Carrol, 4 Cranch, C. C. 400.

15 Wylie v. Brice, 70 N. C. 422.

16 Gay v. Haseltine, 18 N. H 530. 17Flanagan v. Mitchell, 16 Daly, 223

18 See last note.

19 Phelps v. Northrup, 56 111. 156.

20 Haseltine v. Dunbar, 62 Wis. 162; but see Cowan v. Hallock. 9 Colo. 572; Keyes v. Follett, 41 Ohio St 535.

21 See cases in last note and in note 6, supra.

22 See Campbell v. Pettingill, 7 Me. 126.

23 See last case cited.

24 Carlisle v. Hooks, 58 Tex. 420.

25 See cases cited in note 19 and note 9, supra, and Keyes v. Follett, 41 Ohio St. 535.

26 Northern Bank v. Leverich, 8 Rob. (La.) 207.

27Marshall v. Clary, 44 Ga. 511.

28 See Rowe v. Young, 2 Bligh, 391; Walker v. State Bank, 13 Barb. 636. The rule would be the same as to paper not requiring acceptance, but acceptance refused on it. Thatcher v. Mills. 14 Tex. 13. A change of the city where payable is a variation that drawer and indorser must concur in. Niagara Bank v. Manufacturing Co., 31 Barb. 403.

29Heenan v. Nash, 8 Minn. 407. Unless it be supra protest or for honor. The acceptance by an agent is good when he accepts as agent and is authorized. Gillig v. Lake any one else it is a variant acceptance, but that person will be liable according to his contract.30 If one of several joint drawers accepts he binds himself,31 although the effect of such an acceptance upon the rights of drawer and indorsers would be to release them unless they assented. Like any other variant acceptance it is binding between the acceptor and the holder. The acceptance need not be dated.32 The presumption will be in favor of its having been made before maturity at a proper time.33