Sands & Co. v. Matthews, Finley & Co.

GOLDTHWAITE, J. By the Code (section 1532) it is provided, that “ no person, within the State, must be charged as the acceptor of a bill of exchange, unless his acceptance is in writing, signed by himself or agent.” The object of this provision was, to secure unmistakable evidence to charge the acceptor; and no right could, therefore, accrue to any one upon a verbal promise to pay or accept, unless the party to whom it was made had, on the faith of such promise, nego [402] tiated the bill. — Code, § 1535. But this section has no application to the facts as disclosed by this record. Neither, in the present case, can the retention of the bills by the drawee, for more than twenty-four hours, amount to an acceptance (Code, § 1536), for the reason, that the only legitimate inference to be drawn from the answer of the garnishee is, that he was permitted by the agent of the holder to retain them until the following Monday, and consequently no legal obligation could be created against him as acceptor during that day. The judgment rendered can, therefore, only be sustained ■on the ground, that the drawing of the bills, and their presentment to the -drawee, was an assignment to the payee of the amount in his hands belonging to the drawer; the aggregate of the sums drawn for exceeding that amount. In Connoley v. Cheesborough, 21 Ala. 166, the sum drawn for was greater than the amount in the hands of the drawee; and it was held, that upon notice to the latter, it operated as- an assignment of the whole fund. But the judge who delivered the opinion in that case concedes, that had the draft been for part of the funds only, it could not be an assignment until accepted ■ and this is unquestionably true, even in cases where the order is not a bill of exchange, and is drawn upon a special fund; and the reason assigned by Judge Story, in Mandeville v. Welch, 5 Wheat. 286, is, that it would be permitting a creditor 11 to split up a single cause of action into many actions, without the assent of his debtor.” Here, the record shows that two drafts were drawn, each being for less than the amount in the hands of the drawee ; and that being the case, if we were to rest on Connoley v. Cheesborough, supra, neither of the drafts could operate as an assignment of the amount of the fund they ’ were drawn for, nor could both of them have that effect as to the aggregate amount, for, in either case,kit would enable the creditor to split- up his demand. But we are not satisfied to rest our decision on this ground. The drafts here are not payable out of the special fund. They are bills of exchange, and we cannot, without varying their legal effect, say that they are drawn upon the particular, rather than the general fund. They can create no liability in favor of the payee against the drawee, until the latter has [403] accepted them; and, until then, they do not amount to an assignment of the funds in the hands of the drawee. The case in our own court to which we have referred, is wrong, and is not sustained by the authorities which are cited to support it. Mandeville v. Welch, supra; Harris v. Clark, 3 Coms. 93 ; Cowperthwaite v. Sheffield, 3 ib. 243; Winter v. Drury, 1 Seld. 525; Chapman v. White, 2 ib. 412; Tiernan v. Jackson, 5 Pet. 580. As the drawee was garnisheed before his liability to the defendant in attachment had been changed, the debt should have been condemned in his hands. Judgment reversed, and cause remanded. .