sound from the unsound. If this effort should result in his losing what was justly due him, we can but repeat what was said in a similar case: "It is but a reasonable punishment for including with his just due that which he had no right to take."

We are not unaware of a seeming conflict between the conclusion at which we have arrived, and the third point in the syllabus of the case of Doty v. The Knox County Bank (16 O. St., 133). We are by no means satisfied that the judgment in that case was erroneous. The question there arose upon a petition to vacate a judgment which had been rendered at a previous term against Doty and in favor of the bank for upwards of $4,000, by confession on a warrant of attorney. The suit had been brought on a bill of exchange for $4,000, and it appeared upon the hearing of the petition for vacation, that a portion of a prior bill for $1,800 entered into and formed part of the consideration of the bill upon which judgment had been entered. And that, in the previous discounting of the $1,800 bill, some foreign bank bills of a less denomination than ten dollars had been paid out by the bank, contrary to the provisions of the statute upon that subject. The court below held that the bill of $1,800, by reason of the premises, was wholly void, and the bank thereupon remitted upon its judgment so much of the $1,800 as had entered into the consideration of the bill on which judgment had been entered. The residue of this bill was found to have a good and valid consideration, to wit, other and previous bills of exchange on which Doty was justly indebted. The statute forbade the vacating of the judgment until it should be adjudged that there was a valid defence to the action; and the question was whether, after this remittitur, the judgment thus reduced should be wholly vacated, and the bank be required to bring its action on the valid bills which had entered into the consideration of the bill in suit, and as to which there was no defence. The court refused to vacate the judgment in toto, and drive the parties into further litigation, which was required neither by considerations of justice, nor the provision of the statute, and would have left the parties where they then stood.

It is not every defence which might be available when set up by answer, at the proper time, that will require a judgment

to be vacated in order that it may be interposed. In the case referred to, the judgment of the court below was affirmed by this court. Whilst we think that judgment may well be upheld, yet as to the third point of the syllabus which holds that, in so far as the prior illegal bill entered into the consideration of the renewed bill, the latter was merely rendered void pro tanto for want of consideration, a majority of the court, upon full consideration, think it cannot be reconciled with the current of the authorities, and that, in so far as it conflicts with the present decision, it is untenable.

The judgment of the district court is affirmed.

Day, J., concurred in the judgment of affirmance, but not in the modification of the case of Doty v. The Knox County Bank.

CHAPTER V.

ACCEPTANCE AND TRANSFER CONSIDERED.*

The Purpose of Acceptance to Bind the Drawee.t

LUFF v. POPE.

5 Hill, 413. 1843.

On the merits it appeared that the action was brought upon the following instrument:

"New York, Dec. 9, 1838.

"Thirty days after sight pay Henry Pope or his order sixtysix dollars and ninety-seven cents, and place the same to account of yours, "ABM. BELL.

"To MR. MARTIN LUFF, New York."

The draft was presented to the defendant for acceptance two days after its date, and was duly protested by a notary for nonacceptance. The plaintiff proved that he had a demand against Bell, and on calling for payment Bell said he had funds in the hands of the defendant, and thereupon made this draft for the amount of the plaintiff's demand. On presenting the draft the defendant said he would pay it by the 1st of February or the 1st of March; but he refused to accept it, or to make any promise in writing. The plaintiff gave evidence tending to show that the defendant had funds of Bell in his hands sufficient to pay the bill, and the defendant gave rebutting evidence. The defendant moved for a non-suit, on the ground that there was no acceptance in writing, and because the defendant positively refused to accept the bill. The motion was denied by the Justice, on the ground that he did not think this a bill of exchange within the meaning of the statute. He said it was known to all the parties that the instrument was drawn on a particular fund, and he regarded it as a transfer of a chose

* See Secs. 794-813, Vol. 6, Cyclopedia of Law. † See Sec. 794-5, Vol. 6, Cyclopedia of Law.

in action. The jury were afterward charged that if this was a bill of exchange within the common acceptation of business men the plaintiff could not recover for want of a written acceptance. But if it was only an order or instrument in writing to transfer so much of the specific fund of Bell in the hands of Luff as would pay Bell's debt to Pope, then it was not within the statute, and the defendant was liable, provided he had funds. The jury found for the plaintiff as before mentioned. Judgment of affirmance having been perfected in the Superior Court, the defendant in the Marine Court brought error.

BRONSON, J. On the merits, the judgment of the Marine Court was clearly erroneous, and should have been reversed. There is no color for the argument that the instrument on which the plaintiff sued was not a bill of exchange. A bill of exchange is a written order or request by one person to another for the payment, absolutely and at all events of a specified sum of money to a third person. Now what have we here? Bell requests Luff, thirty days after sight, to pay a specified sum of money to Pope. It is payable absolutely, and without reference to any particular fund; and if it be not a bill of exchange the writ of man cannot devise one. The Justice thought it was not a bill, but only "an order or instrument in writing," because it was said at the time, and the proof tended to establish the fact, that Luff had funds in his hands belonging to Bell. It would be enough to say that a written instrument which is perfectly plain and explicit on its face cannot be changed into something else by anything which the parties said at the time of making it, nor by any inquiry into extrinsic facts. It must speak for itself. But the notion that there cannot be a bill of exchange where the drawee has funds, if it be not entirely new, cannot date back further than 1836. It contradicts the very theory, and all the right use of a bill of exchange, which is always supposed to be drawn on funds. Incalculable mischief has resulted from the modern practice of drawing without funds, which is little better than a fraudulent use of the instrument. And although such bills have been tolerated, we have not yet gone so far as to make it unlawful to pursue the old-fashioned honest course of drawing where the means for payment have already been provided.

Whether the payee takes the bill in satisfaction of a debt due from the drawer, or advances the money for it, cannot be a matter of any importance as between him and the drawee. It does not affect the nature of the instrument.

The statute requires that the acceptance should be in writing: 2 R. S. 768, § 6. Here there is not only the want of any writing, but the defendant positively refused to accept, and the bill was protested for non-acceptance. And yet the defendant has been held liable. An examination of this case in all its facts would go very far to confirm the policy of the statute. But it is enough that we cannot repeal it, and until that is done the plaintiff cannot recover. He must take his remedy against the drawer; and if Bell has any money in the hands of the defendant, which is very questionable, he must sue for it. It is a chose in action which cannot be transferred so as to give the assignee a right to sue in his own name, except in the form of an accepted bill of exchange. To give a parol promise to pay the effect of a written acceptance of the bill would be no better than a device to get around the statute and defeat all the valuable ends which it was designed to accomplish. If Quin v. Hanford, 1 Hill, 82, does not support, it certainly does not conflict with this doctrine. In Harrison v. Williamson, 2 Edw. Rep. 430, 438, the Vice-Chancellor said: "A bill of exchange has not the effect of an assignment of the money for which it is drawn in the hands of a drawee; unless, perhaps, where it is drawn upon a particular fund, and then, indeed, by the law merchant, it loses its character as a bill of exchange." He undoubtedly alluded to a class of cases, some of which are cited in Quin v. Hanford, where an order, either not payable in money or else drawn on a particular fund, has, after acceptance or promise of payment, been allowed to operate as an equitable assignment of the fund. And see Morton v. Naylor, 1 Hill, 583. This has been done upon a very liberal construction of the acts of the parties for the advancement of justice. But those cases have nothing to do with a bill of exchange proper, which is an instrument of a peculiar nature, and governed by its own laws. Although it is used for the purpose of transferring funds, and has that effect in the result, it never operates as an assignment to the payee of any particular money in the hands of