
    Luff vs. Pope.
    On certiorari from the final adjudication of an inferior tribunal, this court simply affirm or reverse, leaving the parties in the latter case to begin de novo.
    
    The superior court of the city of New-York, on certiorari to the marine court, have no power to remit the cause for a new trial; though otherwise, on certiorari to • an assistant justice’s court.
    
    A written order or request by one person to another for the payment of a specEed sum of money to a third person, absolutely and at all events, is a bE of exchange; and this, whether the drawee have funds of the drawer m his hands or not.
    A written instrument which is free from ambiguity cannot be varied by parol evidence. Per Bronson, J.
    The acceptance of a bE of exchange, in order to bmd the drawee, must be in writmg.
    Where a bE of exchange was presented for acceptance, and the drawee refused to accept, but promised to pay the person in whose favor it was drawn by a given day; held, that the latter could maintam no action against the drawee, though he had funds of the drawer in his hands at the time of the promise, and ought m justice to have accepted.
    Otherwise, had the mstrument been drawn on a particular fund, so as not to have amounted to a bE of exchange. Semble.
    
    Error to the superior court of the city of N. Y. Pope sued Luff in the marine court of the city of New-York, and declared in assumpsit; and, upon issue joined and trial had, there was judgment for the plaintiff for $66,97 besides costs. The defendant removed the proceedings by certiorari into the superior court, where, after the marine court had made two returns, the' defendant (plaintiff in error) assigned errors, and the. plaintiff (defendant in error) Joined in error. After deliberation, the superior court, in March, 1841, ordered that the cause be remitted to the marine court for a new trial, aiid directed that court to. ' proceed to a new trial of the issue between the parties, and to certify the proceedings upon the new trial to the. superior court with all convenient speed, to the end that the superior comt might cause further proceedings-to be had in the premises.-
    From the record accompanying the present writ of error, it seems the marine court afterwards made another return, stating. that the parties appeared in that .court in July; 1841, and agreed to join an issue without process; whereupon the plaintiff declared in assumpsit, the declaration containing several counts, and differing, from the original declaration, and the defendant pleaded. This new issue was tried, and.the jury found a verdict for the plaintiff for $78,75, upon which the marine court rendered judgment with costs. After this new return came in, the superior court affirmed the judgment, with $140,59 costs of defending against the certiorari.
    On the merits, it appeared that the action was brought upon • the following instrument :■
    “New-York, Dec. 9, 1838.
    Thirty days after sight pay Henry Pope or his. order sixty-' six dollars and-ninety-seven cents, and place the same to account of yours,. • Abm. Bell..
    To Mr. Martin-Luff, New- York,”
    The draft was presented to the defendant for acceptance two days after its date, arid was duly protested by a notary for nonacceptance. The plaintiff proved that he had a demand against Bell, and, on calling for payment-, Bell said he had funds in the ■hands .of the defendant, and thereupon made this' draft for the amount of the plaintiff’s demand; On presenting the draft, the defendant said he would pay it by the first of February or the first of March; but he refused to accept it, or to make any promise in writing. The plaintiff gave evidence tending to show that the defendant had funds of Bell in his hands sufficient to pay the bill, and the defendant gave rebutting evidence. The defendant moved for a nonsuit, on the ground that there was no acceptance in writing, arid because the defendant positively refused to accept. the bill, The motion was denied by the justice, on the ground that he did not think this'a bill of exchange within the meaning of the statute, He said it was known to all the parties that the instrument was drawn on a particular fund, and. he regarded it as a transfer of a chose in action. The jury were afterwards charged that if this was a bill of exchange within the common acceptation of busiriess men, the plaintiff could not recover for want of a written acceptance. But if it was only an order or instrument in writing to transfer so much of the specific fund of Bell in the hands of Luff as would pay Bell’s debt to Pope, then it was not within the statute, and the defendant was liable, provided he had funds. The jury found for the plaintiff as before mentioned. Judgment of affirmance having been perfected in the superior court, the defendant in the marine court brought error.
    
      C. T. Cromwell, for the plaintiff in error.
    
      C. Nagle, for the defendant in error.
   By the Court, Bronson, J.

There is a court held by an assistant justice in each of the wards of the city of New-York, and another court held by three justices, which was originally called the justices' court of the city of New-York. (2 R. L. 370, § 85, and page 381, § 105, 6.) The name of the last was afterwards changed to marine court. (Stat. 1819, p. 74.) The superior court of the city of New-York has the same jurisdiction by certiorari oyer the. marine court and the assistant justices, as was formerly exercised by this court. (Stat. 1828, p. 145, & 24.) There is a subsequent act, (Stat. 1837, p. 538,) entitled “ an act relating to assistant justices' courts in the city of New-York,” the third section of which provides that.the superior court, upon certiorari, may remit the cause to the court below for a new trial, or otherwise, with such directions as may be deemed right.” I am unable to see that this extends to cases brought up by certiorari from the marine court. It is true that the third and fourth sections do not, in terms, point to any particular subordinate court. But the title of the act, and every one of the seven other sections which it contains, make express mention of the assistant justices, and them only. Provision is made for various proceedings before the assistant justices, and the mode of reviewing their judgments; and as there is not one word in the act pointing to any other court, I think the third section should not be construed as extending to the marine court. The order for a new trial in the marine court was therefore unauthorized.

On a writ of error returnable in this court, which in judgment of law removes the record, we may, on a reversal, award a venire de novo returnable either in the court below, or at the circuit. But there is no such practice upon certiorari. There, the only judgment is affirmance or reversal, leaving the parties in the latter case to begin de novo.

In this case there was neither reversal nor affirmance before the order for a new trial, and thus we have two judgments for the same thing, though for different amounts. This, and some other strange things appearing in the case, have probably resulted from blunders in making up the record. But without looking at matters of form, I think the order for a new trial was unauthorized.

On the merits, the judgment of the marine court was clearly erroneous, and should have been reversed. There is no color for the argument that the instrument on which the plaintiff sued was not a bill of exchange. A bill of exchange is a written order or request by one person to another, for the payment, absolutely and at all events, of a specified sum of money to a third person. Now what have we here ? Bell requests Luff, thirty days after sight, to pay a specified sum of money to Pope. It is payable absolutely, and without reference to any particular fund; and if it be not a bill of exchange, the wit of man cannot devise óne. The justice thought it was not a bill, but only an order or instrument in writing,” because it was said at the time, and the proof tended to establish the fact, that Luff had funds in his hands belonging to Bell. It would be enough to say, that a written instrument which is perfectly plain and explicit on its face, cannot be changed into something else by any thing which the parties said at the time of making it, nor by any inquiry into extrinsic facts. It must speak for itself. But the notion that there cannot be a bill of exchange where the drawee has funds, if it be not entirely new, cannot date back further than 1836. It contradicts the very theory, and all the right use of a bill of exchange, which is always supposed to be drawn on funds. Incalculable mischief has resulted from the modern practice of drawing without funds, which is little better than a fraudulent use of the instrument. And although such bills have been tolerated, we have not. yet gone so far as to make it unlawful to pursue the old fashioned honest course of drawing, where the means for payment have already been provided.

Whether the payee takes the bill in satisfaction of a debt due from the drawer, or advances the money for it, cannot be a matter of any importance as between him and the drawee. It does not affect the nature of the instrument.

The statute requires that the acceptance should be in writing. (2 R. S. 768, § 6.) Here there is not only the want of any writing, but the defendant positively refused to accept, and the bill was protested for non-acceptance. And yet the defendant has been held liable. An examination of this case in all its facts would go very far to confirm the policy of the statute. But it is enough that we cannot repeal it, and until that is done the plaintiff cannot recover. He must take his remedy against the drawer; and if Bell has any money in the hands of the defendant, which is very questionable, he must sue for it. It is a chose in action which cannot be transferred so as to give the assignee a right to sue in his own name, except in the form of an accepted bill of exchange. To give a parol promise to pay the effect of a written acceptance of the bill, would be no better than a device to get round the statute and defeat all the valuable ends which it was designed to accomplish. If Quin v. Hanford, (1 Hill, 82,) does not support, it certainly does not conflict with this .doctrine. In Harrison v. Williamson, (2 Edw. Rep. 430, 438,) the vice chancellor said, “a bill of exchange has not the effect of an assignment of the money for which it is drawn in the hands of the drawee; unless, perhaps, where it is drawn upon a particular fund, and then, indeed, by the law merchant, it loses its character as a bill of exchange.” He undoubtedly alluded to a class of cases, some of which are cited in Quin v. Hanford, where an order, either not payable in money, or else drawn on a particular fund, has, after acceptance or promise of payment, been allowed to operate as an equitable assignment of the fund. [And see Morton v. Naylor, 1 Hill, 583.) This has been done upon a very liberal construction of the acts of the parties, for the advancement of justice. But those cases have nothing to do with a bill of exchange proper, which is an instrument of a peculiar nature, and governed by its own laws. Although it is used for the purpose of transferring funds, and has that effect in the result, it never operates as an assignment to the payee of any particular money in the hands of the drawee. If the latter accepts the bill, the payee or other holder may sue upon the contract of acceptance. But if the drawee refuse to accept, there is no contract between him and the holder, and no action will lie. And this is so, although the drawee had funds, and ought, in justice to the drawer, to have paid the 'bill.

We think all these judgments are erroneous, and they must therefore be reversed.

Judgments reversed. 
      
       See Lord v. The Mayor &c. of New-York, (3 Hill, 426, 430.)
     