MARSHALL, Ch. J.. delivered the opinion of the court:

This suit was instituted by Payson & Co., as indorsers of a bill of exchange, drawn by Cornthwaite & Cary, payable to the order of John Randall, against Coolidge & Co. as the

breach of the covenant. In the case at bar the breach is assigned in a very inartificial and lax manner; but it is expressly averred that the assignment and patent to John Hawkins Craig was a prior conveyance, which was still in full force and virtue, "by reason of which said assignment, patent, and incumbrance, the said Will-acceptors. iam (the plaintiff) hath been prevented from At the trial the holders of the bill, on which having and enjoying all or any part of the the name of John Randall was indorsed, ofpremises above mentioned." We are all offered, for the purpose of proving the indorseopinion that upon general demurrer this must be taken as an averment, that the possession of the premises was legally withheld from the plaintiff by the parties in possession, under the prior title thus set up. 1 Judgment reversed.

ment, an affidavit made by one of the defendants in the cause, in order to obtain a continuance, in which he referred to the bill in terms which, they supposed, implied a knowledge on his part that the plaintiffs were the rightful holders. The defendants objected to the bill's going to the jury without further proof of the indorsement; but the court determined that it should go with the affidavit to the jury, who might be at liberty to infer from thence that the indorsement was made by Randall. To this opinion the counsel for the defendants *in [*67 the Circuit Court excepted, and this court is divided on the question whether the exception ought to be sustained.

On the trial it appeared that Coolidge & Co. held the proceeds of part of the cargo of the Hiram, claimed by Cornthwaite & Cary, which had been captured and libeled as lawful prize. The cargo had been acquitted in the district and circuit courts, but from the sentence of acquittal, the captors had appealed to this court. Pending the appeal Cornthwaite & Co. transmitted to Coolidge & Co. a bond of indemnity, executed at Baltimore with scrolls in the place of seals, and drew on them for two thousand seven hundred dollars. This bill was

1.-The usual covenants in conveyances of real | v. Hobbs, 2 Mass. R. 433: Bender v. Fromberger, 4 property by the grantor are, that he is lawfully Dall. 436; Pollard v. Dwight, 4 Cranch, 421. The seized in fee of the premises; that he has good covenant for quiet enjoyment is not broken, unless right and title to convey the same; that they are some particular act is shown by which the plaintfree of all incumbrances; that the grantor, his iff is interrupted; and, therefore, it is necessary to heirs, &c., will warrant and defend the same to the set forth in the breach, assigned in the declaration, grantee, his heirs, &c., against the lawful claims of an actual eviction or disturbance of the possession all persons. The manner of assigning breaches up- of the grantee. Francis' case, 8 Rep. 91, à; 6 Anon. on these covenants deserves the attention of all Com. R. 228; 2 Saund. 181, note; Waldron v. persons who aspire to a reasonable knowledge of M'Carty, 3 Johns. R. 471; Kortz v. Carpenter. 5 the duties of special pleaders. In case of the cove- Johns. R. 120. *And where the eviction or dis- [*63 nants of seizin and of good right and title to con- turbance is by a stranger, it is further necessary to vey,it is sufficient to allege the breach by negativ-allege that the eviction was by a lawful title. Holing the words of the covenant. Bradshaw's case, den v. Taylor, Hob. 12; Foster v. Pierson, 4 T. R. 9 Co. 60 b. S. C. Cro. Jac. 304; Lancashire v. Glover, 617; Hodgson v. The E. I. Company, 8 T..R. 281; 2 Shower, 460; 2 Saund. 181, note (a,) by Mr. Sergeant Greenby v. Wilcocks, 2 Johns. R. 1; Folliard v. WalWilliams; Greenby v. Wilcocks, 2 Johns. R. I. lace, 2 Johns. R. 395; Kent v. Welsh, 7 Johns. R. Sedgwick v. Hollenback, 7 Johns. R. 376; Marston | 258; Vanderkaar v. Vanderkaar, 11 Johns. R. 122;

In order that the promise to accept a non-existing bill shall amount to an acceptance, it must be drawn within a reasonable time before the bill was drawn, and it must so describe the bill that there can be no doubt of its application to it. Cassel v. Dons, 1 Blatchf. C. C. 335; Boyce v. Edwards, 4 Pet. 111; Schimmelpennich v. Bayard, 1 Pet. 264; Carrolton Bk. v. Tayleur, 16 La. O. S. 490.

NOTE.-A letter or written promise to the draw- | the holder, is no acceptance. Johnson v. Collings er to accept a non-existing bill, which is communi- 1 East. 98; Bk. of Mich. v. Ely, 17 Wend. 508; Wilson cated to a third party, and induces him to take the v. Clements, 3 Mass. 10. bill, is the same as an actual acceptance. Schimmelpennich v. Bayard, 1 Pet. 264; Boyce v. Edwards, 4 Pet. 111; Mason v. Hunt. 1 Doug. 29; Wilder V. Savage, 1 Story, C. C. 22; Russell v. Wiggin, 2 Story, C. C. 214; Vancev. Ward, 2 Dana.95; Kennedy v. Geddes, 8 Porter, (Ala.)268; Kendick v. Campbell, 1 Bailey, 552; Goodrich v. Gordon, 15 John. 11; Greele v. Parker, 5 Wend. 514; Storer v. Logan, 9 Mass. 58; Wilson v. Clements, 3 Mass. 10; Gates v. Parker, 43 Me. 544: Steman v. Harrison, 42 Penn. St. 57; Ogden v. Gillingham, 1 Baldw. 45; Bayard v. Lathy, 2 McLean, 462; Miltinberger v. Cook, 18 Wall.

421.

A telegram has the same effect as a letter. Central Sav. Bk. v. Richards, 109 Mass. 414.

A verbal promise to accept a non-existing bill, which is communicated to the holder and induces him to take it, does not amount to an acceptance of it. Bank of Ireland v. Archer, 11 Mees. & W.383; Kennedy v. Geddes, 8 Porter. (Ala.) 268.

A verbal promise to accept,not communicated to

In New York the written promise to accept need not contain a particular description or identification of the bill to be drawn. It is enough that it be drawn in pursuance of the authority. Ulster County Bk.v.McFarland,5 Hill.434; 3 Denio,553; Parker v. Greele, 2 Wend. 545; Greele v. Parker, 5 Wend. 414; Bk. of Mich. v. Ely, 17 Wend. 508; Nelson v. First Nat. Bk., 48 Ill. 39.

The rule that the promise to accept amounts to an acceptance, is not applicable to bills payable at or after sight. Story on Bills, sec. 249; Edwards on Bills, 414; Wildes v. Savage, 1 Story, C. C. 28; Mich. St. Bk. v. Leavenworth, 28 Vt. 209.

also payable to the order of Randall, and in- | he will probably determine. If Mr. W. feels dorsed by him to Payson & Co. It was pre-satisfied on this point, he will inform you, and sented to Coolidge & Co. and protested for non- in that case your draft for two thousand dollars acceptance. After its protest Coolidge & Co. will be honored.' wrote to Cornthwaite & Cary a letter, in which, after acknowledging the receipt of a letter from them, with the bond of indemnity, they say: This bond, conformably to our laws, is not executed as it ought to be; but it may be otherwise in your state. It will therefore be necessary to satisfy us that the scroll is usual and legal with you instead of a seal. We notice no seal to any of the signatures.' We shall write our friend Williams by this mail, and will state to him our ideas respecting the bond, which

On the same day Coolidge & Co. addressed a letter to Mr. Williams, in which, after [*68 referring to him the question respecting the legal obligation of the scroll, they say: "You know the object of the bond, and, of course, see the propriety of our having one not only legal, but signed by sureties of unquestionable responsibility, respecting which, we shall wholly rely on your judgment. You mention the last surety as being responsible; what think you of the others?"

Marston v. Hobbs, 2 Mass. R. 433. But it is not necessary to allege the eviction to be by legal process. 2 Saund. 181, note; Foster v. Pierson, 4 T. R. 617, 620. And where the covenant is that the grantee shall enjoy, without the interruption of the grantor himself, his heirs, or executors, it is held to be a sufficient breach to allege that he or his heirs or executors entered, without showing it to be a lawful entry or setting forth his title to enter. Lloyd v. Tomkies, 1 T. R. 671, and cases cited 2 Saund. 181, note; Sedgwick v. Hollenback, 7 Johns. R. 376. The covenant of general warranty is governed by the same rules; for the grantee must assign as a breach an ouster or eviction by a paramount legal title. Greenby v. Wilcocks, 2 Johns. R. 1; Folliard v. Wallace, 2 Johns. R. 395; Kent v. Welsh, 7 Johns. R. 258; Sedgwick v. Hollenback, 7 Johns. R. 376; Vanderkaar v. Vanderkaar, 11 Johns. R. 122; Marston v. Hobbs, 2 Mass. R. 433; Emerson v. Proprietors of Minot, 2 Mass. R. 464; Bearce v. Jackson, 4 Mass. R. 408. In respect to the covenant against incumbrances, it seemed admitted by Chief Justice Parsons, in Marston v. Hobbs, 2 Mass. R. 433, that there was no authority directly in point; but he held, that in principle it was analagous to a cove-specific proportion of the tract, the damages [*65 nant for quiet enjoyment; and said, that in the entries, the incumbrance is specially alleged in the count. See also Bickford v. Page, 2 Mass. R. 455. It does not, however, seem necessary to allege an ouster or eviction, on the breach of a covenant against incumbrances; but only to allege the special incumbrance as a good and subsisting one. Prescott v. Trueman, 4 Mass. R. 629. And a paramount title subsisting in a third person, is an incumbrance within the meaning of the covenant. Prescott v. Trueman, 4 Mass. R. 627. So a public town way is, in legal contemplation, an incumbrance on the land over which it is laid. Kellogg v. Ingersoll, 2 Mass. R. 87; see Ellis v. Welsh, 6 Mass. R. 246. There is some diversity of opinion as to the damages recoverable upon a breach of these several covenants. Upon the covenants of seizin, and of good right and title to convey, it is held by the courts of New York and Pennsylvania that the grantee is entitled to the purchase money and in64* terest from *the time of the purchase. Staats v. Ten Eyck's executors, 3 Caines, 111; Pitcher v. Livingston, 4 Johns. R. 1; Bender v. Fromberger, 4 Dall. 441. The same rule has been adopted in Massachusetts. Bickford v. Page, 2 Mass. R. 455; Marston v. Hobbs, 2 Mass. R. 433; Caswell v. Wendell, 4 Mass. R. 108. But if the grantee has actually enjoyed the lands for a long time, the purchase money and interest for a term not exceeding six years prior to the time of eviction is given; for the grantee, upon a recovery against him, is liable to account for the mesne profits for that period only. Staats v. Ten Eyck's executors, 3 Caines, R. 111; Caulkins v. Hams, 9 Johns. R. 324; Bennet v. Jenkins, 13 Johns. R. 50. As to the covenant against incumbrances, it seems generally held that the grantee is entitled to nominal damages only, unless be extinguish the incumbrance; and if he extinguish it for a reasonable and fair price, he is entitled to recover that sum with interest from the time of payment. Delavergne v. Norris, 7 Johns. Rep. 358; Hull v. Dean, 13 Johns. Rep. 105; Prescott v. Freeman, 4 Mass. Rep. 627. And the costs, if any, to which he has been put by an action against him on account of the incumbrance. Waldo v. Long, 7 Johns. Rep. 173. In respect to the covenant for quiet enjoyment and of general warranty, the rule of damages adopted in New York and Pennsylvania is to give the purchase money with interest

and the costs of the prior suit; but no allowance is made for the value of any improvements. Staats v. Ten Eyck's executors, 3 Caines, 111; Pitcher v. Livingston, 4 Johns. Rep. 1. Spencer, J. dissenting. Bennet v. Jenkins, 13 Johns. Rep. 50; Bender v. Fromberger, 4 Dall. 441. The same rule has been adopted in Tennessee. 5 Hall's American Law Journ. 330. But, in relation to covenants of warranty, the courts of Massachusetts have adopted a different rule, and allow the damages, or, in other words, the value of the property at the time of eviction. Gore v. Brazier, 3 Mass. Rep. 523. And the same rule appears to be adopted in South Carolina. Liber et ux. v. Parsons, 1 Bay, 19; Guerard's executors v. Rivers, 1 Bay, 265. And in Virginia. Mills v. Bell, 3 Call, 326; Humphrey's administrators v. M'Clenachan's administrators, 1 Munf. 493. And in Connecticut. Horsford v. Wright, Kirby, 3. Where there is a failure of title, as to part only of the land granted, it has been held that the grantee cannot recover back the whole consideration money. If the title has failed as to an undivided part of an entire tract, the grantee is entitled to a like proportion of the consideration; but if it be of a are to be apportioned according to the measure of value between the land lost and the land preserved; that is, the portion of the consideration money to be recovered is to be in the same ratio to the entire consideration that the value of the part, as to which the title has failed, is to the value of the whole tract. Morris v. Phelps, 5 Johns. Rep. 49.

|

land, it has been held in New York and MassachuIn respect to these covenants running with the setts, that if the grantor be not seized, at the time of conveyance, the covenant of seizin is immediately broken, and no action can be brought by the assignee of the grantee against the grantor; for after the covenant is broken, it is a chose in action, and incapable of assignment. Greenby v. Wilcocks, 2 Johns. Rep. 1; Bickford v. Page, 2 Mass. Rep. 455. But in a recent case in England, a different doctrine was held; and it was adjudged that such a covenant runs with the land, and though broken in the time of a testator, is a continuing breach in the time of his devisce, and it is sufficient to allege for damage, that thereby the lands are of less value to the devisee, and that he is prevented from selling them so advantageously. Kingdon v. Noble, 4 Maule & Selw. 53; and see Kingdon v. Noble, 1 Maule & Selw. 355; Chamberlain v. Williamson, 2 Maule & Selw. 408; King v. Jones, 5 Taunt. 418; S. C. 1 Marshall's Rep. 107.

By the Roman law, and the codes which have been derived from it, in case the vendee is evicted he has a right to demand of the vendor. 1st. The restitution of the price. 2d. That of the fruits, or mesne profits, in case the vendee has been obliged to account for them to the owner. 3d. The costs and expenses incurred both in the suit on the warranty and the prior suit of the owner, by whom the vendee has been evicted, 4th. Damages and interest with the expenses legally incurred. Pothier, De Vente, Nos. 118. 123, 128, 130; Code Napoleon, Liv. 3, tit. 6, art. 1630, De La Vente. The vendee has likewise a right to recover from the vendor, not only the value of all improvements made by the former, but also the increased value, if any. which the property may have acquired independently of the acts of the purchaser. 1 Domat. 77, sec. 15, 16; Pothier, De la Vente, Nos. 132, 133; Code Napoleon, Liv. 3, tit. 6, art. 1633, 1634, De la Vente. Digest of the Civil Laws of Louisiana, 355.

of Pierson v. Dunlop, the answer did not con- | promise to accept was in a letter to the drawer, tain those circumstances. They were not and is not stated to have been shown to the infound in the letter, but were entirely extrinsic. dorser. Consequently, the bill does not appear Nor can the court perceive any reason for to have been taken on the credit of that distinguishing between circumstances which promise. It was a mere naked promise, unappear in the letter containing the promise and accompanied with circumstances which might those which are derived from other sources. give credit to the bill. The counsel contendThe great motive for construing a promise to ed that this naked promise amounted to an acaccept, as an acceptance, is, that it gives credit ceptance; but the court determined otherwise. to the bill, and may induce a third person to In giving his opinion, Le Blanc, J., lays down take it. If the letter be not shown, its con- the rule in the words used by Lord Mansfield, tents, whatever they may be, can give no credit in the case of Pierson v. Dunlop, and Lord to the bill; and if it be shown, an absolute Kenyon said, that "this was carrying the docpromise to accept will give all the credit to the trine of implied acceptances to the utmost bill which a full confidence that it will be ac- verge of the law; and he doubted whether it cepted can give it. A conditional promise be- did not even go beyond it.” In Clark and comes absolute when the condition is per- others v. Cock (4 East. 57), the judges again formed. express their dissatisfaction with the law as established, and their regret that any other act than a written acceptance on the bill had ever been deemed an acceptance. Yet they do not undertake to overrule the decisions which they disapprove. On the contrary, in that case, they unanimously declared a letter to the drawer promising to accept the bill, which was shown to the person who held it, and took it on the credit of that letter, to be a virtual acceptance. It is true, in the case of Clark v. Cock, the bill was made before the promise was given, and the judges, in their opinions, use some expressions which indicate a distinction between bills drawn before and after the date of the promise; but no case has been decided on this distinction; and in Pillans & Rose [*75 v. Van Mierop & Hopkins, the letter was written before the bill was drawn.

In the case of Mason v. Hunt (Doug., 296), Lord Mansfield said: There is no doubt but an agreement to accept may amount to an acceptance; and it may be couched in such words as to put a third person in a better condition than the drawee. If one man, to give credit to another, makes an absolute promise to accept his bill, the drawee, or any other person, may 73*] *show such promise upon the exchange, to get credit, and a third person, who should advance his money upon it, would have nothing to do with the equitable circumstances which might subsist between the drawer and acceptor.

What is it that "the drawer, or any other person, may show upon the exchange?" It is the promise to accept the naked promise. The motive to this promise need not, and cannot be examined. The promise itself, when shown, gives the credit; and the merchant who makes it is bound by it.

The cases cited from Cowper and Douglass are, it is admitted, cases in which the bill is not taken for a pre-existing debt, but is purchased on the credit of the promise to accept. But in the case of Pillans v. Van Mierop, the credit was given before the promise was received or the bill drawn; and in all cases the person who receives such a bill in payment of a debt will be prevented thereby from taking other means to obtain the money due to him. Any ingredient of fraud would, unquestionably, affect the whole transaction; but the mere circumstance that the bill was taken for a pre-existing debt has not been thought sufficient to do away the effect of a promise to accept.

In the case of Johnson and another v. Collins (1 East. 98), Lord Kenyon shows much dissatisfaction with the previous decisions on this subject; but it is not believed that the judg ment given in that case would, even in Eng land, change the law as previously established. 74*] In the case of Johnson v. *Collins the

1. By the French law, the acceptance of a bill of exchange must be in writing, and signed by the party accepting it. Ordonnance de 1673, tit. 5, art. 2, Code de Commerce, liv. 1, tit. 8, art. 122. It appears by the discussions in the council of state in drawing up the new Commercial Code, that no provision requiring the acceptance to be written on the bill itself was inserted, in order to avoid a mistaken inference which might be drawn from it that the law meant to prohibit the acceptance of a bill by a letter promising to accept (par lettre missive.) "L'acceptation est ordinairement donné

The court can perceive no substantial reason for this distinction. The prevailing inducement for considering a promise to accept, as an acceptance, is that credit is thereby given to the bill. Now, this credit is given as entirely by a letter written before the date of the bill as by one written afterwards.

It is of much importance to merchants that this question should be at rest. Upon a review of the cases which are reported, this court is of 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. This is such a case. There is, therefore, no error in the judgment of the Circuit Court, and it is affirmed with costs.

Judgment affirmed.'

Cited-1 Pet. 264; 4 Pet. 121, 122; 16 Pet. 20;

Story, 27, 414: 2 Story, 237, 240; 1 Woods, 534; I Bald. 44, 45; 2 McLean, 593; 1 Blatchf. 340;2 Wood. & M. 288.

sur la lettre de change même; mais beaucoup d'auteurs etrangers, et surtout les docteurs Holland ais, Allemands, et Espagnols, pensent qu'elle peutqussi être donneé par lettre missive. Cette opinion aété adoptée par le conseil d'état, et se trouve consacrée par l'article qui nous occupe. En [*76 effet, d'un côté, il a evité de dire dans cet article que l'acceptation serait donneé sur la lettre de change, de peur de paroître établir une règle absolute de laquelle on se serait fait une fin non-recevoir contre l'accentation par lettres missives. D'un autre côté, le conseil a pensé que, puisque la loi

[PRIZE.]

THE DOS HERMANOS-GREEN, Claimant.

In prize causes, the evidence to acquit or condern must come, in the first instance, from the papers and crew of the captured ship. It is the duty of the captors to bring the ship's papers into the registry of the District Court, and to have the examinations of the principal officers and seamen of the captured ship taken on the standing interrogatories. 77*] *It is exclusively upon these papers and examinations that the cause is to be heard in the first instance: If, from this evidence, the property clearly appears to be hostile or neutral, condemnation or restitution immediately follows. If the property appears to be doubtful, or the case suspicious, further proof may be granted according to the rules which govern the legal discretion of the court. if the parties have been guilty of gross fraud, or misconduct, or illegality, further proof is not

allowed, and condemnation follows.

Mr.

thagena, who, by his agents, Mr. John F. Miller
and Messrs. Lewis & Lee, asserted an owner-
ship to nearly the whole of the cargo.
Miller, in his affidavit annexed to the claim,
states, "that he purchased the goods so claim-
ed, with moneys in his hands belonging to the
claimant; that at the time of the purchase, he
expected to have had an interest therein, but
that on his arrival at New Orleans, the attorney
in fact of the said claimant (meaning Mr.
Lewis) refused to allow any such interest, and
the deponent is therefore obliged to give up the
same; and this deponent further saith, that the
facts contained in the said claim are true to the
best of his knowledge, information, and be-
lief." At the hearing in the District Court, the
claim was rejected, and the goods were con-
demned as the property of enemies, or of citi
zens trading with the enemies of the United
States.

Although some apology may be found in the state of peace which had so long existed previous to the late war, for the irregularities which had Harper, for the appellant and claimant, arcrept into the prize practice, that apology no long-gued, upon the facts, that the proprietary er exists; and if such irregularities should here- interest in the cargo was in the claimant, and after occur, it may be proper to withhold condemnation even in the clearest cases, unless the irregu- that he (though a native citizen) had a right to larities are avoided or explained. change his domicile, and did change it bona fide to Carthagena, in South America, where he *was a resident merchant, and in his [*79 neutral character had a right to trade with the He further sugenemy of his native country.1 gested that the captor was not duly authorized to capture, there being no evidence that the armed barge, which made the capture, was duly incorporated into the navy.

If a party attempts to impose upon the court, by knowingly or fraudulently claiming as his own property belonging in part to others, he will not be entitled to restitution of that portion which he may ultimately establish as his own. It seems that where a native citizen of the United States emigrated before a declaration of war to a neutral country, there acquired a domicile, and afterwards returned to the United States during the war and re-acquired his native domicile, he became a redintegrated American citizen; and could

not afterwards, flagrante bello, acquire a neutral domicile by again emigrating to his adopted coun

try.

The claimants have no right to litigate the question whether the captors were duly commissioned; the claimants have no persona standi in judicio to assert the rights of the United States. But if the capture be made by a non-commissioned captor, the prize will be condemned to the United States.

Key, contra, argued that the residence of the claimant at Carthagena was temporary only, and that the whole transaction was infected with fraud and falsehood.

STORY, J., delivered the opinion of the court: Before we consider the merits of this claim it may not be unfit to advert to some of the

APPEAL from the District Court for the principles applicable to proceedings in prize

Louisiana District.

causes, which seem to have been wholly neglected in the progress of this cause.

It is the established rule in courts of prize that the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured ship. On this account it is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the District Court, and to have the examinations of the principal officers and *sea- [*80 men of the captured ship taken before the district judge, or commissioners appointed by him, upon the standing interrogatories. It is exclusively upon these papers and the examin

This was the case of a Spanish schooner captured on the 18th of October, 1814, by Mr. Shields, a purser in the navy, commanding an armed barge, in the service of the United States, ostensibly bound with a cargo of crates and dry goods, on a voyage from Jamaica to 78*] Pensacola, but in fact in pursuance *of an asserted change of destination then in prosecution of a voyage to New Orleans. The schooner was delivered up, and prize proceedings were instituted against the cargo in the District Court for Louisiana District. Upon the return of the monition various claims were interposed for small adventures or parts of the cargo; but the only questions before the court arose upon the claim of Mr. Basil Green, call2.-5 Rob. 41, The Mellomasne; b. 252, The Charing himself a citizen of the Republic of Car-lotte; Ib. note (a), The Island of Curracoa, &c.

n'exclut pas l'acceptation par lettre missive, on en conclueroit naturellement qu'elle la permet." Esprit du Code de Commerce, par J. G. Locré, tom. 2, p. 89.

Such is the law of France on this subject. That, of England is fully analyzed in the above opinion. In the tribunals of our own country, the first case which occurs on the subject, is that of M'Kim v. Smith et al. 1 Hall's Law Journal, 486, in which the doctrine of the above opinion is fully recognized. The next is that of M'Evers v. Mason, 10 Johns, Rep. 207, in which a more limited application of the principle may seem to be indicated. But upon an inspection of that case, it will be found that the

1.-1 Wheat. 65, note (9).

| Supreme Court of New York declined expressing any opinion upon the question whether a promise to accept a bill not in esse would amount to an acceptance, and whether an indorsee could avail himself of such promise and maintain an action on the bill against the drawee. The Supreme Court of Massachusetts also, in the case of Wilson v. Clements, 3 Mass. Rep., 1, avoided a determination of the question whether a promise to accept before the bill was drawn amounted to an acceptance, because the bill was not drawn in due season after the promise was made. But the above decision in the text may be considered as settling the law of the country on this subject.