Circuit Court of the United States

ORD

FOR THE MARYLAND DISTRICT.

NOVEMBER TERM 1808.

REGULA.

RDERED by the court, that in all trials hereafter to be had in this court, the proceedings thereon shall be as follows:

The plaintiff's counsel shall fully state his case and produce the evidence in support of it.

The defendant's counsel shall then fully state his defence and produce the evidence in support of it.

If the testimony on either side shall not be objected to by the adverse party at the time it is offered, the court will consider it as being admitted; but the court in their discretion will hear the objection to such evidence. If any evidence shall be objected to, the court will in their discretion hear and decide on the objection when made, or will direct the trial to go on until the residue of the case is before the court and jury, and then the court will consider the objection and decide thereon.

When the evidence shall thus have been closed on both sides, either party shall be at liberty to apply generally to the court for their direction to the jury in matters of law arising on all the facts, but shall at the same time state all the points and objections on which he intends to rely in support of such application; and the party opposing the direction, as prayed for, shall state all the points and objections on which he means to rely.

After the application and direction aforesaid, no new testimony shall be offered, unless the court shall think it necessary for the attainment of justice. But if such testimony is admitted, either party may make the same application and on the same terms as prescribed in the preceding rule.

The counsel, making application as aforesaid, shall be first heard. The adverse party shall then be heard; and the applicant shall reply and conclude, unless he shall have cited some new authority, in which case the adverse party shall be permitted to comment thereon.

When there are two counsel, one counsel shall open the case and the other conclude. When there are more than two, only two shall open and one conclude; and all the counsel on the side of the opposite party shall be heard as one, except in case of reply to new authority, when one only shall be heard.

[9th December 1808.]

Where a bill in equity shall have been or shall be filed in this court, and one or more of the defendants shall reside without this district, so that process of subpœna cannot be served; or where any person residing within or without the district and being served with process of subpoena shall fail to appear pursuant thereto, or having appeared, shall fail to answer the said bill within the time allowed, the court will direct a notice of such parts of the said bill, and of the object thereof and of the relief thereby prayed, to be published by advertisement in the newspapers or otherwise, as to them shall seem proper under the circumstances of the case, warning the defendant to appear in person or by solicitor, and to answer the said bill, or having appeared to answer thereto within such time as shall be appointed; and in case any such defendant shall fail to appear pursuant to such notice, or having appeared, to answer, the court will, on application of the complainant or complainants, order the general replication to be entered by the clerk of the court, and will thereupon issue a commission for taking depositions on the part of the complainant or complainants, on interrogatories filed with the clerk of this court one month before issuing such commission, in the same manner as if an answer and general replication had been filed by the defendant or defendants; and on the due return of such commission or commissions, the court will proceed to hear the cause and to decree as in other cases.

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Provided, That if the said defendant or defendants shall, before the final hearing and decree, come in and show sufficient cause, the court will permit such defendant or defendants to answer and to take out another commission or commissions for the examination of witnesses as in other cases.

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[9th December 1808.]

Baltimore County Court,

OCTOBER TERM, 1808.

John M'Kim, junr. v. Smith and Steene.

BILL OF EXCHANGE. ACCEPTANCE.

AMUEL Brown, of Chilicothe, in the state of Ohio, being indebted to several merchants in Baltimore, sent his clerk to Baltimore with a considerable sum of money, directing him to distribute it in certain proportions among his creditors. Some of the creditors received their proportions, but several others received nothing. The defendants, knowing the distribution which had been ordered by Brown, prevailed on the clerk to deposit with them the whole of the money remaining in his hands, to the amount of 1625 dollars, for which they gave him the following receipt.

"February 8, 1805. Received of Samuel Brown by the hands of Samuel Hayes the sum of 1625 dollars, which we promise to hold subject to the order of Samuel Brown, or till his arrival here, which is expected."

"SMITH & STEENE."

This receipt was immediately transmitted to Brown; and M'Kim, the plaintiff, had sent his clerk, Owings, to the western country for the purpose of collecting money, who called on Brown for payment of the money due from him, and which had been due for several years. Owings, as agent to the plaintiff, pressed Brown urgently for money; and Brown said he was unable to pay in money, but offered an assignment of notes

and bonds, and also landed security to satisfy M'Kim. He also told Owings he had deposited 1625 dollars in the hands of Smith and Steene to pay his creditors in Baltimore, and showed their receipt; adding, at the same time that he owed the defendants nothing. Owings then proposed to take Brown's draft on the defendants for the whole amount. This, however, he refused to do, but gave the draft on the 12th April 1805, for 1000 dollars, and delivered the receipt to Owings. On the 16th April, Owings having left Chilicothe, and arrived at New Lancaster, forwarded the draft and receipt to the plaintiff at Baltimore. On the same day, the 16th, Brown wrote to the defendants from Chilicothe, expressing a wish that they would pay the draft, but without appearing to be certain they would do so; because he knew he was indebted to them, and seemed to suppose it probable they would hold the money to satisfy their own claim. Owings knew nothing of the contents of this letter, for he had been told by Brown that he was not indebted to the defendants. On the 30th April, the plaintiff presented the draft for payment, which was refused; but it does not appear whether Brown's letter to the defendants was received before or after the draft was presented; nor is it deemed to be material in deciding the case.

Upon this statement of facts the plaintiff's counsel moved the court to direct the jury, that the receipt given by the de fendants under date of the 8th February 1805, amounts in law to an acceptance of the draft subsequently given by Brown on them in favour of the plaintiff.

Nicholson, C. J. [absent Hollingsworth and Jones, Justices.] The usual method of accepting a draft or bill of exchange is, by the drawee's writing and signing the acceptance on some part of the bill; but it is unquestionable, that a bill of exchange may be accepted either by parol or by a collateral writing. It is denied, however, that there can be an acceptance of a bill of exchange before the bill is drawn. But the case of Pillans v. Van Mieross, 3 Burr. 1663, is directly contrary; and I do not think its authority is shaken by any of the subsequent decisions, particularly when the general principle there laid down is re

stricted, as in the case of Pierson v. Dunlap, Cowp. 573. For if an engagement to accept or to honour a bill is shown to a third person who is thereby induced to give a credit to the drawer, is not he who is the means of procuring the credit bound by every principle of moral honesty to support it? and can there be any substantial difference, whether this credit is procured before or after the bill is drawn? Is not the distinction attempted to be supported on the authority of Clarke v. Cock, 4 East 57. in reality a distinction without a difference? Woodward drew two bills upon Cock payable to his own order, and retained them in his own possession until after he had received Cock's letter, informing him they should be duly honoured. Before the receipt of that letter he had never made an effort to dispose of them; nor did he write Cock that they were in the possession of any other person. He expressly declared they were drawn to his own order; and after the receipt of Cock's letter he indorsed them to Clarke showing or stating the substance of Cock's promise to honour them. His indorsement was, in fact, a new drawing; and as the bills remained in his possession until after the promise to honour them, is there any material difference between a promise to honour them after they were drawn, but before they were indorsed away, and a promise to honour them before they were drawn? The essential part of the case is, that the promise to honour them was shown at the time the bills were negotiated; and they were negotiated upon the credit of the drawee. And this constitutes the difference between the case in 4 East and of Johnson v. Collins in 1 East. In Johnson and Collins there was no communication, no understanding between the drawee and the payee of the bill; but it was received upon the credit of the drawer, and not upon the faith of any engagement made by the drawee. It must have been in this view of the subject, that lord Kenyon made his very strong declaration, that a promise to accept a nonexisting bill was not binding as an acceptance. There are few transactions of a mercantile nature more common, even among ourselves, than for a person having a sum of money in Baltimore, and wishing to go to Philadelphia to deposit his money