
    Smith v. Segar.
    Wednesday, March 22, 1809.
    Action of Debt — Acceptor of Bill of Exchange — An action of debt will not lie against the acceptor of a hill of exchange.
    The appellant brought an action of debt against the appellee, in the County Court of King and Queen, for 980 dollars and 67 cents; and declared that the defendant (now appellee) being indebted to a certain John P. Saunderson, in that sum, the said Saunderson," on the 6th of November, 1797, made his request in writing, directed to the defendant, requiring him to pay the amount to the plaintiff (now appellant) or order, at sixty days after date, which request being afterwards shewn and presented to the defendant, he, on the 11th of December, 1797, accepted, in writing, to pay the same. Plea, “payment,” and issue.
    ' At the trial the defendant tendered a bill of exceptions, stating that the plaintiff, to support his action, offered as evidence a writing, (which is referred to, and purports to be an inland bill of exchange,) without introducing any evidence to prove the hand-writing; and also offered as evi-deuce a letter, admitted by the de-feudant’s counsel to be in *the hand-writing- of the defendant? (which is in like manner referred to, purporting to be an acceptance of a bill;) whereupon the defendant, by his counsel, moved the court to prevent the said papers from going to the Jury as evidence; but the motion was overruled; and thereupon the bill of exceptions was sealed.
    The papers referred to in the bill of exceptions, are ¿he following:
    “Cobham, 6th Nov. 1797.
    “At sixty days after date, please to pay Mr. James Smith or order, nine hundred and eighty dollars, sixty-seven cents, for value received, and much oblige, sir,
    “ Your humble servant, '
    
    $980 67. “John P. Saunderson.
    “To Mr. John Segar, Merchant, Dunkirk. ’ ’
    The following letter is the other paper referred to.
    “Dunkirk, December 11th, 1797.
    “Mr. James Smith,
    1 ‘Sir — Yours of the 22d ult. advising your holding Mr. John P. Saunderson’s draft for nine hundred and sixty dollars, payable the sixth of next month, is to hand.
    I shall make a confidential and candid communication to you on the subject, in observing that I met with heavy losses last year, which has so deranged me, that I am fearful it will not be in my power to take it up; at same time I make you the following propositions, one of which I hope you will, after advising with Mr. Saunderson, think proper to accept. I will either give you good bonds in suit or the amount, or, some time next month, send what goods Í have on hand to vendue at Norfolk, and dispose of them for cash, and redeem the bill. I will thank you to write me by post, in course.
    “Iam, Sir, yours respectfully, “John Segar.
    “Mr. James Smith, Cross Roads, Surry County.”
    *The bill of exchange and letter, as above referred to, are all the evidence in the record; but it is not stated in the bill-of exceptions, that this was all the testimony given on the trial. There was a verdict for the plaintiff for the debt in the declaration mentioned, and 255 dollars damages ; for which the County Court gave judgment. The defendant (Segar) obtained a supersedeas from one of the Judges of the General Court, assigning for error.
    1st. That an action of debt will not lie against the acceptor of a bill of exchange, even where there is clear evidence of such acceptance.
    2dly. That the letter of the defendant, which was offered to the Jury to prove his acceptance, did not amount to an absolute acceptance to pay the bill, when due, but at a future day, and in a particular manner.
    3dly. That the bill referred to in the letter, is for 96u dollars only; whereas the bill declared upon as accepted, is for 980 dollars, 67 cents.
    4thly. That as there was no evidence that the bill was ever shewn to or seen by Segar, the hand-writing of Saunderson (the drawer) ought to have been proved.
    
      In the District Court the judgment of the County Court was reversed, and Smith appealed to this court.
    The Attorney-General, for the appellant, argued that the letter of Segar, having been properly introduced as evidence to prove the acceptance, a bill of exceptions ought not to have been tendered; but instead of it, a demurrer to evidence. The distinction is this; if a party offer improper evidence, a bill of exceptions should be allowed; but if the evidence be proper, and insufficient merely, then a demurrer to evidence is the correct course. In this case it is not stated that the bill of exceptions contains all the evidence: if then the evidence be proper in itself, and may be coupled with other evidence, the Court will presume that some other evidence was submitted to the Jury. A bill of exceptions *will never be taken for a demurrer to evidence. 
    
    The objection that the bill was offered in evidence without proof of the hand-writing of the drawer, is not only waived by the plea of payment, which admits the bill, but has no foundation in law. In an action against the acceptor, it is not necessary to prove the hand-writing of the drawer, 
    
    A small matter amounts to an acceptance of a bill,  It may be by parol or in writing ; absolute, or conditional, 
    
    As to the variance between the sum expressed in the bill, and that mentioned in the letter, it might have been explained by evidence offered to the Jury it might have been proved that there was no other bill; or, it was competent to them to find that that circumstance was a mistake in the letter.
    The most formidable objection is to the form of the action. Debt will lie where the certainty of the duty appears,  or where-the amount may be ascertained by reference to something else,  It is admitted on all hands that debt will lie against the drawer of a bill of exchange, though his liability is only conditional, that he will pay, in case the drawee fails; and there seems to be much stronger reason for supporting the action against the acceptor, whose undertaking- is direct. Modern opinions too seem to favour this action, 
    
    
      
       Action of Debt — Acceptor of BiU of Exchange, — It was held in another case, too, that an action of debt would not lie against the acceptor of a bill of exchange. Wilson v. Crowdhill, 2 Munf. 302. See the principal case cited in Catlett v. Russell, 6 Leigh 374; Farmers’ Bank v. Clarke, 4 Leigh 609.
      Same — Same—Principal Case Disapproved. — But the principal case and Wilson v. Crowdhill, were disapproved in Regnault v. Hunter, 4 W- Va. 269, and it was held that an action of debt will lie in the name of the payee of a bill of exchange against the acceptor, under sec. 10, chap. 144, Va. Code 1860, provided it be averred in the declaration that the acceptance is signed by the party who is to be charged thereby or his agent.
      And under sec. 4, ch. 125, 1 Rev. Code, which is the equivalent of § 10, ch. 144, Va. Code 1860, it was held that an action of debt will lie for the payee against the acceptor of an order. Hollingsworth v. Milton, 8 Leigh 50.
      In Hollingsworth v. Milton, it was said: “In the cases of Smith v. Seam', 3 Hen. & M. 394, and Wilson v. Crowdhill, 2 Munf. 302, (which however were acceptances of bills of exchange,) the influence of this statute does not seem to have been considered.”
      In Regnault v. Hunter, 4 W. Va. 271, it was said: “Thissection (meaning sec. 10, ch. 144. Va. Code 1860), and the construction of it, given in the case of Hol-lingsworth v. Milton (8 Leigh 50), overrules the cases of Smith v. Segar, Wilson v. Crowdhill (2 Munf. 302), Cloves v. Williams, and Powell v. Ancell, and sustains the case of Robarg v. Peyton, that an action of debt will lie in the name of the payee of a bill of exchange against the acceptor, provided it be averred in the declaration that the acceptance is signed by the party who is to be charged thereby, or his agent.” See monographic note on "Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
       1 Wash. SOS, Keel & Roberts v. Herbert; Ibid. 362, Per curiam, in Wroe v. Washington & others.
    
    
      
       1 Stra. 618, Wilkinson v. Lutwidge.
    
    
      
       Bull. N. P. 270.
    
    
      
      a) Chi tty on Bills, 76, 76; Bull. N. P. and Stra. ubi supra.
    
    
      
       Bull. N. P. 167.
    
    
      
       2Bac. Abr. tit. “debt,” let. (E).
    
    
      
       Chilly on Bills, 231.
    
   [JUDGE! ROAKE-

Was not that doctrine touched on in Machie’s executor v. Davis, in which it was said that case would lie by the payee against the acceptor of a bill of exchange, on the custom of merchants only? In Hooe v. Wilson, and Dunlap v. Triplett, the authority of Chitty was relied on, but overruled.]

Randolph, for the appellee, cited Espi-nasse’s N. P. 173, to shew that an action of debt would not lie against the acceptor of a bill of exchange, and was proceeding in his argument, when he was stopped by the Court, who intimated that it was unnecessary to discuss the point any further.

Friday, March 28. By the whole Court, the judgment of the District Court was affirmed. 
      
       2 Wash. 219.
     
      
       MS.
     