he directed a nonfuit to be entered, with liberty to the plaintiffs to 1800. move to fet it afide and enter a verdict for the amount of their demand, if the Court thould be of opinion that they were entitled to JOHNSON recover on either of the counts. A rule nifi was accordingly ob- gift tained for this purpofe on a former day. Williams Serjt., who was now to have fhewn caufe, was ftopped by the Court. COLLINGS. Wigley and Clifford in fupport of the rule. ift. A promise to accept a bill when drawn amounts in law to an acceptance. In Pillans and Rofe v. Van Mierop and Hopkins (a) the plaintiffs having advanced money to one White upon the faith of a written affurance by letter from the defendants that they would accept fuch bills as "the plaintiffs fhould in a month's time draw upon them for 800l. "upon the credit of White," the Court after much deliberation held that whether it were an actual acceptance, or a loan to White upon the credit of the defendants, it would equally bind the latter. But Lord Mansfield there faid (b), "This amounts to the fame thing as an acceptance. I will give the bill due honour is in effect accepting it. If a man agree that he will do the formal part, the laws looks upon it, in the cafe of an acceptance of a bill, as if actually done." Wilmot J. faid (c), "An agreement to accept a bill to be drawn in future would, as it feems to me, by connexion and relation bind on account of the antecedent relation. And I fee no difference between its being before or after the bill was drawn." Yates J. faid (d), “ This agreement to honour the bill was a virtual acceptance of it." Again, "A promife to accept is the fame as an actual acceptance." Aflon J. faid, "The defendants have undertaken to [101] honour the plaintiffs draft, therefore they are bound to pay it." The fame doctrine was admitted in Mafon v. Hunt (e); but that was a conditional acceptance, and the condition was afterwards broken. In Powell v. Monnier (f) there was an affurance by letter that the bill thould be accepted, which was holden fufficient to bind the drawee; but that was after the bill was drawn. 2dly, Suppofing this not to amount in law to an acceptance, yet there is fufficient confideration to futain a verdict for the plaintiffs on the money counts. The defendant owed Ruff this money; and his promise to honour the bill when drawn was an agreement to take as his creditor any person to whom Ruff thould appoint the money to be paid. He then having by his indorfement appointed the money to be paid to the plaintiffs, it raifes an affumplit in law by the defendant to pay them fo much. And the authority having been given by Ruff before his bankruptcy that event cannot vary. the cafe. It was holden in Fenner v. Mears (g) that general indebitatus affumpfit would lie by the affignee of a refpondentia bond against the obligor, who had before engaged by an indorfement on the bond to pay the fame to any affignee: though it was agreed that no action could have been maintained on the bond itfelt by the affignee in his own name. It was there also admitted that if the obligor had paid the (a) 3 Burr. 1663. (b) Ib. 1669. (c) lb. 1673. (d) Ib. 1674. (e) Dougl. 297. (f) Atk. 611. (g) 2 Blac. Rep. 1269. Vide alto Innes v. Dunlop, 8 Term Rep. 505. where the affignment of a Scotch bond was deemed a good confideration to fupport an alumpfit here. E 3 affignee OHNSON the agreement amounted to a against whenever any fuch fhould be. COLLINGS. contract was devised to operate *[102] 1800. affignee, the former might have pleaded payment to an action on the bond brought by the obligee. And it was there confidered that particular promife to the affignee Lord C. J. De Grey said that the upon fubfequent affignments, and amounted to a declaration that upon fuch affignment the money borrowed should no longer be th money of A. but of B. his fubftitute. So here the agreement to accept amounts to a particular promife to the holder of the bill to whom it is negotiated to pay him the amount it is money had and received to his ufe. Thus in Tatlock v. Harris (a) a bill was accepted by the defendant payable to the order of a fictitious person whose supposed indorsement was put upon it; fo that being incapable of proof, no action could be maintained as upon the bill. But the Court held that a bonâ fide indorfee for a valuable confideration might recover against the acceptor upon an implied affumpfit for money paid and money had and received. Lord Kenyon in giving judgment faid, "it was an appropriation of fo much money to be paid to the perfon who fhould become the holder of the bill." Again, in Ifrael v. Douglas (b) A. being indebted to B. for brokerage, and B. to C. for money lent, B gave an order to A. to pay C. the money due from A. to B., which order A. having accepted, a majority of the Court held that C. might maintain an action against A. for money had and received. And Gould J. exprefsly likened it to the cafe of a man having money due to another in his hands, which that other orders. him to pay to a third perfon: and that there was no fubftantial difference, whether one in fact pays money to another for a third perfon, or whether he gives the other an order to pay over fo much money, to which he affents: that in reafon and found 103 ] law it was money had and received to the ufe of fuch third perfon. Wilson J. who differed on that point, yet agreed that the action was maintainable on the count for the infimul computaffent. There is this further reafon for holding the defendant liable, becaufe his conduct was calculated to deceive third perfons and put them off their guard: for if there had been no fuch promise to pay, the plaintiffs would have reforted to Ruff at once, and not have deferred their application till after the bankruptcy when it was too late. Befides there was a fubfequent promife by the defendant to pay the bill to the plaintiffs if they would indemnify him against Ruff's affignees; and as the law will indemnify him that is the fame thing. Lord KENYON C. J. This is a queftion of great moment. It is much to be lamented that any thing has been deemed to be an acceptance of a bill of exchange befides an exprefs acceptance in writing: but I admit that the cafes have gone beyond that line, and have determined that there may be a parol acceptance: that perhaps was going too far; but at any rate the determinations have gone no further, and I am not dipoled to carry them to the length now contended for, and to fay that a promife to accept a bill before it is drawn is equally binding as it made afterwards. It is not generally (a) 3 Term Rep. 174. (b) x H. Blac. 239. true true that a promise to do a thing is the fame thing in law as the 1800. actually doing it; it certainly is not fo as applied to this case. This was a promise to accept a non-exifting bill, which varies this cafe from all those which have been decided upon the fame fubject; and I know not by what law I can fay that fuch a promise is binding as an acceptance. The confequence is that the plaintiffs cannot recover upon the count as upon an acceptance of a bill of JOHNSON COLLINGS. exchange. As to the other ground, if we were to fuffer the plain- [104] tiffs to recover on the general counts, we must say that a chofe in action is affignable (a), a doctrine to which I will never fubfcribe. I cannot as at prefent advised and upon the general view of it agree with the cafe of Fenner v. Mears in Blac. Rep. The refult of it however feems to be this, that the determination having been made according to equity and good confcience, the Court would not disturb the verdict; and I doubt whether the decifion can be fuftained on any other ground. The undertaking there indeed was in writing; but I am not prepared to say that that makes any difference: though a distinction of that kind was much dwelt upon. in another cafe as fupplying a want of confideration (b) but that has never been adopted fince, and was afterwards exprefsly overruled in the cafe of Rann v. Hughes in the Houfe of Lords (c). However no queftion of that fort can arife here; and I am clearly fatisfied that there is no evidence to fupport the promifes laid in of the counts. any GROSE J. It would be of most dangerous confequence to relax the rule of law to the extent here contended for. By the general rule a chofe in action is not affignable, except by the cuftom of merchants. The affignment of a chofe in action by a bill of exchange is founded on that law, and cannot be carried further than that will warrant it; and no authority has been cited to fhew that by the law merchant a mere promise to accept a bill to be drawn in future amounts to an actual acceptance of the bill when drawn. Then we have no authority to extend the rules which have been hitherto established. As to the general counts, if we were to permit the plaintiffs to recover on this evidence, it would be making all choses in action affignable, which canot be contended for, and would throw the whole fyftem into confusion. LE BLANC J. In the cafe of Pierfon v. Dunlop (d), Lord Mansfield limited and truly limited the doctrine which had been before laid down in Pillans v. Van Mierop. He there fays "It has been truly faid as a general rule that the mere answer of a merchant to the drawer of a bill, faving, He will duly honour it, is no acceptance. unless accompanied with circumftances which may induce a third perfon to take the bill by indorfement; but if there are any fuch circumstances, it may amount to an acceptance, though the answer be contained in a letter to the drawer." Therefore he explains and limits his own rule which he had before delivered concerning fuch an acceptance, confining it to the cafe where credit is given by a (a) Vide Forth v. Stanton, 1 Saund. Rep 210, 211 and 2 by Sert. Wiliams. (6) Vide the opinion of Wilmot J. delivered in Pillans v. Van Mierop, 3 Burr. 16:0, 1. (c)7 Term Rep. 350. n. (d) Corop. 573. E 4 third [105] 105 1800. JOHN ON COLLINGS. third perfon upon the faith of fuch an affurance, on which hea ets, and by which he is induced to take the billl. Lord KENYON C. J. added, that he thought that the admitting a again promife to accept before the existence of the bill to operate as an actual acceptance of it afterwards, even with the qualification laft mentioned, was carrying the doctrine of implied acceptances to the utmost verge of the law; and he doubted whether it did not even [156] go beyond the proper boundary: though this cafe was not helped even by that opinion. Wednesday, Nov. 26th. Rule difcharged (a). (a) In Beares' Lex Merc. 454. pl. 16. it is said, "If the poffeffor (i. e. of a bill of exchange) hath neglected to demand acceptance before the drawer's failu e, and the perfor to whom it is d rected has advice thereof, he cannot be compelled to accept the draught, though previous to the knowle ge of the drawer's misfortunes he bad acquainted him with kis intention to honour his bill, and even afterwards confeffes that he should have done it had it been prefented and the acceptance demanded before the advice of the drawer's failure had reached him." And again, p. 466. pl. 112. "He that verbally or by lette has promifed to accept any bills drawn on him for a third perfon's account, and be to whom the promise was made does in confequence thereof give the third perfon credit, lying on a punctual compliance; in this cate he that has engaged his word is obliged to fulfil it or be answerable for all damages that shall proceed from a breach thereof &c." A mafter is TH not liable in trespass for the wilful M'MANUS against CKICKETT. HIS cafe was very much difcuffed at the bar, upon a motion to fet afide a verdict for the plaintiff and enter a nonfuit, by Gibbs and Wood, against the rule, and Garrow and Giles in fupport of it. The Court took time to confider of their judgment; and fervant, as afterwards entered fo fully into the cafes cited and the arguments by driving his mafter's urged at the bar, that it is unneceflary to detail them in the ufual carriage form. act of his against ano ther, done without the direction or master. But arifing to ikiltulness of Lord KENYON C. J. now delivered the unanimous opinion of the Court (a). This is an action of trefpafs, in which the declaration charges affent of the that the defendant with force and arms drove a certain chariot he is liable against a chaife in which the plaintiff was riding in the king's highto anfwer for way, by which the plaintiff was thrown from his chaife and greatly any damage hurt. At the trial it appeared in evidence that one Brown, a feranother from vant of the defendant, wilfully drove the chariot against the plainthe negli- tiff's chaife, but that the defendant was not himfelt prefent (b), nor gence or un did he in any manner direct or affent to the act of the fervant, and bis fervant the question is, if for this wilful and defigned act of the fervant an acting in his action of trefpafs lies against the defendant his matter? As this is a queftion of very general extent, and as cafes were cited at the bar, where verdicts had been obtained against mafters for the mifconduct of their fervants under fimilar circumftances, we were defirous of looking into the authorities on the fubject before we gave our opinion; and after an examination of all that we could find as to this point, we think that this action cannot be maintained. It (a) Lawrence J. was prefent in court when the cafe was argued on a former day in the employ. *[107] term. (6) No perfon was in the carriage: the act was done by the fervant either in go`ng for or after he had fet down his master. is ; 1800. CRICKSTT. is a question of very general concern and has been often canvaffed but I hope at laft it will be at reft. It is faid in Br. Abr. tit. Tref pafs, pl. 435. "If my fervant contrary to my will chafe my beafts MCMANUS into the foil of another I fhall not be punished." And in 2 Roll against Abr. 553. "If my fervant without my notice put my beafts into another's land, my fervant is the trefpaffer and not I; because by the voluntary putting of the beafts there without my affent, he gains a fpecial property for the time, and fo to this pu pofe they are his beafts." I have looked into the correfpondent part in Vin. Abr. and as he has not produced any cafe contrary to this, I am fatisfied with the authority of it. And in Noy's Maxims, ch. 44. "If I command my fervant to diftrain, and he ride on the diftress, he fhall be punished not I." And it is laid down by Holt, C. J. in [108] Middleton v. Fowler, Salk. 282. as a general pofition," that no mafter is chargeable with the acts of his fervant but when he acts in the execution of the authority given him." Now when a fervant quits fight of the object for which he is employed, and without having in view his master's orders purfues that which his own malice fuggefts, he no longer acts in purfuance of the authority given him, and according to the doctrine of Lord Holt his master will not be answerable for fuch act. Such upon the evidence was the prefent cafe and the technical reafon in 2 Roll Abr. with refpect to the fheep applics here; and it may be faid that the fervant by wilfully driving the chariot against the plaintiff's chaise without his master's affent gained a special property for the time, and so to that purpose the chariot was the fervant's. This doctrine does not at all militate with the cafes in which a master has been holden liable for the mischief arifing from the negligence or unfkilfulness of his fervant who had no purpose but the execution of his master's orders; but the form of thofe actions proves that this action of trefpafs cannot be maintained: for if it can be fupported, it must be upon the ground that in trefpafs all are principals; but the form of thofe actions fhews, that where the fervant is in point of law a trefpaffer, the master is not chargeable as fuch; though liable to make a compenfation for the damage confequential from his employing of an unfkilful or negligent fervant. The act of the mafter is the employment of the fervant; but from that no immediate prejudice arifes to those who may fuffer from some subsequent act of the fervant. If this were otherwife the plaintiffs in the cafes mentioned in 1 Lord Raym. 739. (one where the fervants of a carman through negligence ran over a boy in the streets and maimed him; and the [109] other, where the fervants of A. with his cart ran against the cart of B. and overturned it, by which a pipe of wine was fpilt;) must have been non-fuited from their mistaking the proper form of action, in bringing an action upon the cafe, inftead of an action of trefpafs; for there is no doubt of the fervants in those cases being liable as trefpaffers, even though they intended no mifchief; for which, if it were neceffary, Weaver v. Ward in Hobart 134. and D ckinfon v. Watfon in Sir Thomas Jones 205. are authorities. But it must not be inferred from this that in all cates where an action is brought against the fervant for improperly conducting his master's carriage, |