KENNEDY V. GEDDES. [8 PORTER, 263.] PROMISE IN WRITING TO ACCEPT A BILL OF EXCHANGE not yet in esse will in law amount to an acceptance if the bill is taken on the faith of such prom. ise, when drawn. VERBAL PROMISE THAT A BILL OF EXCHANGE will be accepted when drawn, made to the drawee in the bill, will not amount to an acceptance. ASSUMPSIT. The opinion states the case. Thornton, for the plaintiff in error. Dunn, contra. ORMOND, J. The view we take of this case, renders it unnecessary to consider but two of the points raised in the cause. There was no error in the refusal of the court to enter judgment for the defendant in the court below, on the ground, that the plaintiff below had suffered two nonsuits. The nonsuit spoken of in the statute, is one which continues to the end of the term, as is manifest not only from the statute, but from the reason of the thing. "No more than two new trials shall be granted in the same cause; and two nonsuits shall be considered equal to a verdict against the party suffering the same." Thus, we see that a nonsuit is put in juxtaposition to a verdict, and the evil intended to be remedied was the vexation of numberless suits for the same cause of action. The remaining question is, whether in law there was an acceptance of the bill of exchange, which is here attempted to be enforced. The evidence is, that the plaintiff had previously accepted and paid two bills of exchange, drawn by one Carpenter, in favor of the defendants in error, for provisions furnished Carpenter. That before the bill in question was drawn, the defendants inquired of the plaintiff whether he would accept any further for goods to be sold to Carpenter; that defendant said he would accept. The goods were accordingly furnished to Carpenter, and the bill drawn. When it was presented for acceptance, the plaintiff in error retained the bill, said he would call on the defendants in a day or two, but declined accepting at that time. Whether a verbal promise to accept a bill not in esse, will, in law, amount to an acceptance, is now, for the first time, presented to this court; and, in a country so highly commercial as ours, is a question of the utmost importance. In the case of Pillans v. Mierop, 3 Burr. 1663, it was for the first time held, that a promise by the defendant, in writing, to accept such a bill as the AM. DEO. VOL. XXXIII-19 plaintiff should in about a month's time draw upon the credit of a third person, amounted to an acceptance of the bill. This decision was afterwards qualified by Lord Mansfield, in the cases of Pierson v. Dunlop, Cowp. 573; and Mason v. Hunt, Doug. 296, by making the right of recovery to depend on the fact, whether the bill was taken on the faith of the promise to accept. To the same effect are the cases of Clarke v. Cock, 4 East, 60; and Wynne v. Raikes, 5 Id. 514, but even with this exception, Lord Kenyon, in the case of Johnson v. Collings, 1 Id. 98, considered that it was carrying the doctrine of implied acceptances to the utmost verge of the law. In the United States, the doctrine on this interesting subject appears to stand on the same footing with the latter English decisions. In Coolidge v. Payson, 2 Wheat. 66, Chief Justice Marshall thus states the law: "Upon a view of the cases which are reported, this court is of the opinion, 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, binding the person who makes the promise." So, in the case of McEvers v. Mason, Hodgson & Co., 10 Johns. 207, it was held, that a promise in writing to accept a bill of exchange, will not, in law, amount to an acceptance, unless the bill was taken on the faith of such promise. See also Goodrich and De Forest v. Gordon, 15 Johns. 6; Schimmelpennich v. Bayard, 1 Pet. 283; Mayhew v. Prince, 11 Mass. 54; Banorgee v. Hovey, 15 Mass. 11;' Parker v. Greele, 2 Wend. 545. It appears very clearly from the cases cited, that it is now well settled, both in England and the United States, that a promise in writing to accept a bill of exchange not in esse, will be in law an acceptance, if the bill be taken on the faith of such promise. It seems equally certain, that a collateral, written, or a mere verbal promise to accept a bill, made after the bill is drawn, may amount to an acceptance. But will a mere verbal promise to accept a bill not yet drawn, be an acceptance of the bill after it is drawn, even if, as in this case, it is made to the person in whose favor the bill is to be drawn? Waiving for the present the consideration of the question, that, in this case, there was no promise to accept for any precise sum, and also waiving the influence which the statute of frauds might exert over it, as being a promise, not in writing, to "answer for the debt, default, or miscarriage of another person," we know of no case in which it 1. 5 Mass. 11; S. C., 4 Am. Dec. 417. has been determined that a promise to accept, under such circumstances as the present, has been held to be an acceptance of the bill when drawn. It is perhaps to be regretted, that any acceptance, other than one written on the bill, should ever have been received as valid; at all events, we do not feel authorized to go beyond the clear and precise rule laid down by Chief Justice Marshall, before cited from 2 Wheaton. In this case, not only was the promise not in writing, but it was uncertain for what amount the bill was to be drawn, when it was to be drawn, and when payable; the court, therefore, erred in not rejecting the evidence. As the cause must be remanded, no notice is necessary to be taken of the assignment that there is no declaration, as the defect can be supplied before another trial. Let the judgment be reversed, and the cause remanded. ROBERTS v. ADAMS. [8 PORTER, 297.] BLANK SIGNED TO BE FILLED UP AS A NOTE, by a third person to whom it is intrusted, will render the signor liable to a bona fide holder, though such third person has violated the confidence reposed in him, by either inserting a sum different from that intended, or by using it for a different purpose. Where a Partnership is Furnished with a Signed Blank, to be filled by the partners as a note, to be used in their business, and the blank is not used during the continuance of the firm, but after the dissolution one of the partners fills it up, all the partners will be liable to repay the signor the amount that he may have been obliged to pay thereby. ASSUMPSIT. Defendant in error, plaintiff below, furnished the firm of Roberts & Ross a signed blank, to be filled in by them as a note for either five hundred or one thousand dollars. The firm went out of existence without having used the note; but after its dissolution, Ross, while settling its affairs, filled in the blank with a note for eight hundred dollars, to which he also signed the name of the firm. This note he passed off in payment of one of the firm debts. Suit was afterwards instituted on this note, and judgment recovered thereon. This judgment Adams discharged. He now sought to recover from Roberts the amount so paid out by him. J. B. Clarke, for the plaintiff in error. GOLDTHWAITE, J. It is insisted by the counsel for the plaintiff in error, as the note signed by Ross & Roberts and the defendant in error, was put in circulation after the dissolution of the partnership, that it was not binding on Roberts, and consequently, that he is not liable to reimburse the defendant in error. We do not consider this as the question presented by the facts stated in the bill of exceptions. Adams became the security at the request of the partners, and if he was placed in a situation in which the amount of the note could be legally recovered from him, there can be no doubt but that each of the partners is liable to refund him the money he has paid. It would not have availed him as a defense to the note, when sued by White & Seymour, or their indorsee, to have proved every fact which is stated, unless he could have brought home to the plaintiff in that action, a knowledge of the circumstances under which his signature to the blank note was obtained, and no such knowledge is pretended. No rule can be better settled, than the one which determines that he who signs his name to a blank piece of paper, with intent to be filled up as a note or indorsement, will be liable, although the person intrusted therewith, shall violate the confidence reposed in him, by filling it up with another sum, or using it for another purpose than the one intended: Collis v. Emett, 1 H. Bl. 313; Russel v. Langstaffe, Doug. 496;' Snaith v. Mingay, 1 Mau. & Sel. 87; Crutchly v. Mann, 5 Taunt. 529; Pasmore v. North, 13 East, 517; Crutchley v. Clarance, 2 Mau. & Sel. 90; Brahan v. Ragland, 3 Stew. 247; Violett v. Patton, 5 Cranch, 142; Mitchell v. Culver, 7 Cow. 336; Putnam v. Sullivan, 4 Mass. 45 [3 Am. Dec. 206]. If it was admitted that Roberts was not liable on the note, to a bona fide holder of it, because of the want of authority in his partner to bind him at the time it was filled up, this would not change the aspect of the case, as the defendant in error would clearly be liable to such a holder; as the blank signed by him was a letter of credit to any amount which those to whom he confided it might choose to insert in it. The case does not differ in principle from one in which the name of the defendant in error should appear as the only signature to the note. In such a case, if borrowed or obtained by the firm when in existence, and filled up by one of the partners after its dissolution, each partner, it is conceived, would be liable to reimburse the money paid, because the credit and confidence was given to the partnership, and not to the individual. We do not advert to the fact, 1. Doug. 514. that the note was passed away in payment of a debt, for which Roberts was unquestionably bound in law, it having been contracted during the continuance of the partnership. This debt has, in effect, been paid by Adams; but however strong this equitable ground may appear, we prefer that our decision shall rest on the sole ground, that Adams lent his name to the partners, as their security, and that they by their acts (the negligence of the one, and the fraud of the other), have caused him to pay the amount recovered against him. He is clearly entitled to reimbursement from either partner. Let the judgment be affirmed. SIGNING AND DELIVERING A BLANK to be filled in as a note, gives unlimited authority to insert any sum, and it is not a good plea to an action brought on a note so filled in, that it was filled for a larger amount than was authorized: Hall v. Bank of Commonwealth, 30 Am. Dec. 685. But where a blank signed by one person was filled in so as to make it appear a joint and several note, and another signature to the note was obtained, the original maker was held discharged: Bank of Limestone v. Penick, 15 Id. 136. SIMS v. ADM'R OF SIMS. [8 PORTER, 449.] "DELIVERY OF POSSESSION" AND "CHANGE OF POSSESSION" are paraphrases, delivery of possession necessarily operating a change of possession. WHERE THE SUBJECT OF A GIFT REMAINS WITH THE DONOR, the jury should be allowed to determine whether any argument against the fact of delivery that might be adduced from that circumstance, is not explained by the further fact that the home of the donor and donee is the same. DETINUE. Defendant's intestate, prior to his death, at a public sale of slaves which he was holding, called the slave Rachel and the plaintiff to himself, and called upon the persons present to witness that he gave the slave to plaintiff. After the gift, plaintiff remained in the family of the intestate, she being his daughter, and the slave also remained in the intestate's possession. The defendant, upon the latter's death, took the slave into her possession, whereupon this action was brought. The charge of the court appears from the opinion. Verdict and judgment went for defendant. J. B. Clarke, for the plaintiff in error. Edwards, contra. ORMOND, J. It is desirable, that in all cases presented to this court for revision, the points intended to be raised, should be |