
    A. Browne & Co. vs. Jonathan Coit.
    Where (he defendant accepted a hill of exchange, upon condition that lie sold certain goods of the drawer before the bill .became due, which goods', before the bill became due, were attached by a creditor of the drawer in t|ie hands of the’^cceptor, and before they were sold, the Court Jichi that tiie defendant was not bound by his acceptance.
    In this case, a bill of exchange was drawn on the defendant in favor of the plaintiffs by A. B. of New-Yorfc, who had consigned goods to the drawee for sale. Before the goods were sold, the bill war. presented for acceptance, and refused. . Coit however said, that if the'goods -were sold rvhen the bill became due, he would pay-it, and of this, due notice was given to the drawer. Before the bill was due, and before the goods were sold, they were attached in the hands of Coit by the creditors of A. B. Coit was applied to for payment on die day the bill became due, and refused. The goods have been since sold with the consent of all parties, and the proceeds left in the hands of the defendant to await the result of this action. If the plaintiffs fail, the attaching creditors are to take;
    A verdict was had for the plaintiff,
    
      A motion was now made to set aside the judgment, and to order a non suit.
   Mr. Justice Huger

delivered the opinion of the court.

If the defendant be liable on his conditional acceptance, \ he must he regarded as a creditor in possession, and the attachment must be dissolved. If he be not liable, the holder of the bill can have no lien on the goods, as it was taken on-the general credit of the drawee. (Chitty 199.) The only question then is, as to the liability of the defendant ? His acceptance being conditional, he could only become liable on the performance of the condition. He__ agreed to pay the bill on the day it was due, if he could cell the goods; but before that day the goods were attached ; and it was, by operation of law, out of his power to sell; they had in the words of the act “ been made liable in law to answer any judgment that shall hereafter he recovered and awarded upon that process.” The event then did not occur upon which he was to become liable, and its non-occurrence was not the effect of his contrivance, nor was it in his power to avoid it. If a merchant undertake to accept a bill, on condition that a cargo of equal value be consigned to him, and the cargo consigned be not of equal value, he is not bound to accept, (Douglas, 297.) Or if he promise to pay a bill, provided a certain vessel consigned to him shall arrive, and she is lost, he is not liable. If he accept on any condition, the performance of which is' prevented by the act of God, he is not liable ; neither can be be liable when the condition is prevented by an act of the law. CChitty, 199, 200.) The motion in this case must therefore prevail.

Justices Notl, Johnson, Gantt and Colcock, concurred*  