[Thompson vs. Tolmie.

there is a fair sale, say the Court, and the decree executed by a conveyance from the administrator, the purchaser will not be bound to look beyond the decree, if the facts necessary to give the Court jurisdiction appear on the face of the proceedings. After a lapse of years, presumptions must be made in favour of what does not appear. If the purchaser was responsible for the mistakes of the Court, in point of fact, after they had adjudicated upon the facts, and acted upon them, these sales would be snares for honest men. The purchaser is not bound to look further back than the order of the Court. He is not to see, whether the Court was mistaken in the facts of debts and children. That the decree of an Orphans Court, in a case within its jurisdiction, is reversible only on appeal, and not collaterally in another suit.

In Perkins vs. Fairfield, 11 Mass. Rep. 227, in the Supreme judicial Court of Massachusetts, it was held; that a title under a sale by administration, by virtue of a license from the Court of Common Pleas, was good against the heirs of the intestate, although the license was granted upon a certificate of the judge of probates, not authorized by the circumstances of the case. The Court said the license was granted by a Court having jurisdiction of the subject. If that jurisdiction was improvidently exercised, or in a manner not warranted by the evidence from the probate Court, yet it is not to be corrected at the expense of the purchaser; who had a right to rely upon the order of the Court, as an authority emanating from a com petent jurisdiction. The case of Elliot vs. Peirsol, 1 Peters, 340, decided in this Court at the last term, has been referred to by the counsel for the defendant in error, as containing a doctrine that will let in every possible objection that can be made to these proceedings.

The observation relied upon is, "but we cannot yield an assent *to the proposition, that the jurisdiction of the county Court

could not be questioned, when its proceedings were brought [*169

collaterally before the Circuit Court." This remark was only in answer to the argument which had been urged at the bar, that the Circuit Court could not question the jurisdiction of the county Court. That it was so intended is obvious from what immediately follows. "We know nothing in the organization of the Circuit Courts of the Union, which can contradistinguish them from other Courts in this respect." And the limitation upon the extent of the inquiry, when the proceedings are brought collaterally before the Court, is explicitly laid down. "We agree, that if the county Court had jurisdiction, its decisions would be conclusive. When a Court has jurisdiction, it has a right to decide every question that occurs in the cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other Court. But if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought in opposition to them even prior to a reversal."

This is the clear and well settled doctrine of the law, and applies

[Thompson vs. Tolmie.]

to the case now before the Court. The jurisdiction of the Court, (under whose order the sale was made) over the subject matter, appears upon the face of the proceedings; and its errors or mistakes, if any were committed, cannot be corrected or examined when brought up collaterally, as they were in the Circuit Court.

The judgment of the Court below must, accordingly, be reversed; and the record sent back, with directions to the Court to enter judgment for the defendant.

132

THOMAS F. TOWNSLEY, PLAINTIFF IN ERROR, US. JOSEPH K. SUMrall, DefendANT IN ERROR.

Bills of exchange, payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded at their maturity. [178]

It is admitted, that in respect to foreign bills of exchange, the notarial certificate of protest is, of itself, sufficient proof of the dishonour of a bill, without any auxiliary evidence. [179] It is not disputed that, by the general custom of merchants in the United States, bills of exchange, drawn in one state on another state, are, if dishonoured, protested by a notary; and the production of such protest is the customary document of dishonour. [180] If a person undertake to accept a bill, in consideration that another will purchase one already drawn, or to be thereafter drawn, and as an inducement to the purchaser to take it; and the bill is purchased upon the credit of such promise for a sufficient consideration; such promise to accept is binding upon the party. It is an original promise to the purchaser, not merely a promise for the debt of another; and having a sufficient consideration to support it, in reason and justice as well as in law, it ought to bind him. [181] If A says to B, pay so much money to C and I will repay it to you, it is an original independent promise; and if the money is paid upon the faith of it, it has been always deemed an obligatory contract, even though it be by parol; because there is an original consideration moving between the immediate parties to the contract. [182]

Damage to the promissee constitutes as good a consideration as benefit to the promissor. [182] in cases not absolutely closed by authority, this Court has always expressed a strong inclination not to extend the operation of the statute of frauds so as to embrace original and distinct promises, made by different persons at the same time upon the same general consideration. [182]

It can make no difference in law, whether the debt for which a bill of exchange is taken is a pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party to the drawer upon the bill, and the party parts with his present rights at the instance of the promissee, whose promise is substantially a new and independent one, and not a mere guarantee of the existing promise of the drawer. Under such circumstances, there is no substantial distinction, whether the bill be then in existence, or be drawn afterwards. In each case, the object of the promise is to induce the party to take the bill upon the credit of the promise. [182]

If the holder of a bill of exchange, at the time of taking the bill, knew that the drawee had not funds in his hands belonging to the drawer, and took the bill on the promise of the drawce to accept it, expecting to receive funds from the drawer; the promise of the drawee to accept the bill, constitutes a valid contract between the parties, notwithstanding the failure of the drawer to place funds in his hands. The acceptance of the drawee of a bill, binds him, although it is known to the holder that he has no funds in his hands. It is sufficient that the holder trusts to such acceptance. [183]

*THIS suit was originally instituted by Joseph K. Sumrall, [*171 in a state Court of Kentucky, and afterwards, on the petition of Thomas F. Townsley, the defendant below, removed into the Circuit Court of the United States for the district of Kentucky, where the same was tried before a jury, and a verdict rendered for the plaintiff.

The action was upon an alleged verbal promise made by the defendant, as one of the partners of Townsley & Co., that they would accept a certain draft or drafts, to be drawn on them at New Orleans by one Richard S. Walters, in favour of Joseph K. Sumrall; and the cause of action alleged was a failure to comply with the promise. The bill was drawn and remitted to New Orleans, and

[Townsley vs. Sumrall.]

not being paid, was returned under protest to Kentucky, and this suit was brought.

On the trial in the Circuit Court, various bills of exceptions were taken by the defendant, all of which are stated in the opinion of this Court; and in which opinion is also stated the points on which the plaintiff in error sought to obtain a reversal of the judgment of the Circuit Court.

Mr. Coxe, for the plaintiff in error, contended.

1. That a parol promise to accept a non-existing bill does not constitute a contract, for the breach of which an action may be maintained.

He admitted that the acceptance of an existing bill might be by parol; but the allowance of such a principle of law had been regretted by judges. A written agreement to accept a bill not yet drawn, is valid; but there has been no decision which affirmed that a parol acceptance of such a bill is binding; and the leaning of Courts has been against it. Cited, 2 Wheat. 66. 1 East, 98. 4 East, 57. 5 East, 514. 1 Atk. 611. 3 Mass. 10.

The general principle of our law is, that a verbal promise of this kind will not sustain an action. The provisions of the statute of frauds are infringed, by making it otherwise.

The admission of such a parol contract will lead to difficulties and uncertainties; and the danger of such a course is shown in this case, as no one of the witnesses, of three who were examined, *172] represent the agreement to accept to the same extent. 2. The Court were requested to instruct the jury, that if they believed the bill was drawn by Waters to pay a partnership debt, as stated by Waters, they should find for the defendant.

This was accommodation paper, the benefit of which was to enure to the drawer and the payee, to enable them to pay a joint debt. No consideration, in fact, passed for it from the plaintiff to either the drawer or the drawee. He stands in the same situation he would have been in if it had never been drawn.

This prayer, and this view of the case, are put hypothetically to the jury. The facts upon which they are based are detailed in the testimony of Waters, and the jury was to judge of his credit. There was therefore enough to warrant the prayer, and it should have been allowed. So also, he contended, the next instruction should not have been refused, as it leaves to the jury the decision upon the testimony of Waters.

Upon the question, whether, if a bill be drawn in Kentucky, on a person in New Orleans, the protest is, in itself, evidence of demand and refusal: in Nicholas vs. Webb, 8 Wheaton, 326, it was held, that the protest of a foreign bill is sufficient; but a distinction is taken between foreign bills, and those instruments in which a protest is not necessary, and therefore not the official act of the officers. In cases of inland bills the protest cannot be read. Chesmer vs. Noyes, 4 Camp. 129. 2 Barn. & Ald. 696.

[Townsley vs. Sumrall.]

The Supreme Court of New York have held such bills as this to be inland bills. Miller vs. Hackley, 5 Johns. 175. Also cited 2 Tucker's Blackst. 467. 5 Cowen, 363.

Under the English statutes, provision is made to protect inland bills; but the same statutes prescribe that the acceptance shall be in writing.

At common law no protest of an inland bill of exchange was ever made. It was introduced by statute. By the law of Louisiana, an inland bill cannot be protested for non-payment, unless it has been accepted in writing; and the "holder of an inland bill need [*173 not protest it. Livingston's Crim. Code, p. 55, art. 318; p. 73, art. 487; p. 99, art. 717. The form of protest is to be conformable to the custom of the place where it is made; p. 100, art. 727.

Although the contract was made in Kentucky, yet it was to be executed in Louisiana, and the law of that place must be the law of the contract. 1 Gallis. Rep. 371, 372. Robinson vs. Bland, 2 Burr, 1077, 1079. 1 Bl. Rep. 256.

Under the French law, which prevails in Louisiana, no acceptance is valid unless it is in writing.

Mr. Nicholas, for the defendant in error, stated that the principal question is whether an agreement to accept a bill to be drawn was binding.

Originally, at common law, a verbal acceptance of a bill was as good as if it had been written; and Courts have since gone further, and have made circumstances equivalent to an acceptance.

In Coolidge vs. Payson, 2 Wheaton, 66, this Court decided, that a verbal acceptance was as good as one which is written; and whatever may be the law of England, this is now settled law in the United States. All the cases go upon the question whether the promise to accept was the inducement to take the bill.

If a verbal acceptance is as valid as one which is in writing, where is the authority to show that a parol agreement to accept a bill to be drawn is not binding. The objection to such an acceptance, on the ground of inconvenience, would prevail equally against all parol acceptances.

A verbal promise for a good consideration is binding, and the policy of extending the rule to bills to be drawn, to the same extent as it operates to bind the verbal acceptor of a bill drawn, is equal. In Kentucky, if A says to B "let C have four thousand dollars in goods, and I will pay the amount;" the promise is good. Notwithstanding the statute of frauds, this is law in that state.

Before the statute of frauds any parol promise was good, even for the conveyance of a freehold; and until it shall be shown, that in the statute of frauds there is a provision *against the contract upon which this suit is brought, it will operate.

[*174

The lex loci will sustain this contract. It was made in Kentucky, and was to be performed at New Orleans; and the remedy for the