rule in the words used by Lord Mansfield in the case of Pierson v. Dunlop; and Lord Kenyon said that "this was carrying the doctrine of implied acceptances to the utmost verge of the law; and he doubted whether it did not even go beyond it." In Clarke and others v. Cock, 4 East, 57, the judges again 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 a 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 and Rose v. Van Mierop and Hopkins, the letter was written before the bill was drawn.

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.

WILLIAM KONIG, an Alien, Plaintiff below, v. WILLIAM BAYARD, WILLIAM BAYARD, Jr., ROBERT BAYARD, and JACOB LE ROY.

(1 Peters, 250. Supreme Court of the United States, January, 1828.)

Acceptance supra protest by stranger. It is no objection that a stranger has intervened as acceptor for the honor of an indorser, or that his acceptance has been made at the request and under the guaranty of the drawee. But in such case the indorser may avail himself of all defences which he could have made had the drawee accepted for his honor and then sued upon such acceptance.

THE case is stated in the opinion of the court.

MARSHALL, C. J. This suit was brought in the Court of the United States for the Second Circuit and District of New York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. and J. and R. Van Staphorst, of Amsterdam, in favor of Le Roy, Bayard, & Co., of New York, and indorsed by them. The bill was regularly presented, and protested, after which it was accepted and paid by the plaintiff, for the honor of the defendants. The jury found a verdict for the plaintiff, subject to the opinion of the court, on a case stated by the parties. The judges of the Circuit Court were divided in opinion on the following points:

1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.

2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honor of the defendants, and is entitled to recover the amount with charges and interest.

The first question is understood to be waived. It is a question which was decided by the court at the trial, and could not arise after verdict, unless a motion had been made for a new trial.

The second requires an examination of the case stated by counsel. The bill was transmitted by Le Roy, Bayard, & Co. to Messrs. Rougemont and Behrends, of London, to have it presented for acceptance, who enclosed it to the plaintiff in a letter, from which the following is an extract: "We beg you to have the enclosed accepted: 1st of fl. 21,500, 60 days, on N. and J. and R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and, in case of refusal, you will have the bill protested."

The plaintiff gave immediate notice of the dishonor of the bill, and of their intervention for the honor of the defendants.

Messrs. N. and J. and R. Van Staphorst addressed a letter to the defendants, dated the 26th November, 1822, giving notice that the bill was dishonored, the drawer having no right to draw, and that they were advised by counsel not to interpose in their own names for the honor of the defendants. The letter adds: "In this predicament, we applied to our friends, William Konig & Co., who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of the above bill; which favor these gentlemen have not refused to us; so that, without our prejudice, and completely without yours, we have duly protected your interest."

The defendants also gave in evidence a letter from the plaintiff, stating that he had intervened, at the request of N. and J. and R. Van Staphorst, and under their guarantee; but that they required him to proceed against the defendants, as preliminary to the performance of that guarantee.

It was admitted that the bill was drawn by J. C. Delprat, on his own account, and not on any shipment for a debt due from him to the defendants for advances previously made to him; and that he had given to the defendants an order on

N. and J. and R. Van Staphorst for all balances due from them to him.

It is not alleged that the drawees had any funds of the drawer in their hands.

The plaintiff in this case must be considered as the agent of N. and J. and R. Van Staphorst, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorsts adopted this circuitous course, instead of interposing directly in their own names, under the advice of counsel. They, however, immediately stated the transaction in its genuine colors to the defendants. It is impossible to doubt that a person may thus intervene, through an agent, if it be his will to do so. The suspicion which might be excited by proceeding, unnecessarily, in this circuitous manner, cannot affect a transaction which was immediately communicated, with all its circumstances, to the persons in whose behalf the intervention had been made; unless those persons were exposed to some inconvenience to which they would not have been exposed had the interposition been direct. This is not the case in the present instance, since it cannot be doubted that the defendants might have availed themselves of every defence in this action of which they could have availed themselves had N. and J. and R. Van Staphorst been plaintiffs. The case shows plainly that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and indorsers.

This cause came on to be heard, on a certificate of division of opinion of the judges of the Circuit Court of the United States, for the Southern District of New York, and on the points on which the said judges were divided in opinion, and was argued by counsel, on consideration whereof, this court is of opinion that the plaintiff had a right, under the circum

stances, to accept and pay the bill in question, under protest, for the honor of the defendants, and is entitled to recover the amount, with charges and interest; which is ordered to be certified to the said Circuit Court.