
    *Beall v. Cockburn.
    [July, 1790.]
    Contracts — Case at Bar. — On the 1st May, 1779. C. having- sterling- money In Jamaica, B. agreed, in writing, to give, on receipt of C.’s hills for the same, his bond, for payment of £700 current money, for each £100 sterling, payable with interest from the date of the bills, if honoured; and when notice of payment of the sterling money should be received, the current money due, on account of it, to be put into loan office treasury notes, on interest, by B., and delivered to C.: but if the bills were not hon-oured, the drawer was not to be liable to damages, and B. was to forward the bills, by the earliest conveyance, to Jamaica for payment. This was not a sale of the sterling money, unless the bills were honoured. And if B. sold the bills, before acceptance, he violated the contract, and could not insist upon performance, by C. afterwards. To whom, a subsequent delivery of the certificates, without informing him of the circumstances, was no payment.
    Martin Cockburn, of the county of Fair-fax, received a letter, dated the 4th of April, 1778, from his brothers Thomas and James Cockburn, of Jamaica, informing him of their readiness to pay him a considerable sum o f sterling money, which they owed him, and requesting him to draw on them for it.
    Having seen an advertisement of Samuel Beall, a merchant of Williamsburg, giving notice that he was a purchaser of bills on Europe or the West Indies, Mr. Cockburn, on the 11th of February, 1779, addressed a letter to Mr. George Mason, junior, which was the result of a conversation between them, and in which he offers to sell Beall his bills on his brothers for loan office certificates, to be procured and lodged with Mr. Mason, to be delivered to Cockburn, on information, that the money for which the bills were drawn was received, or returned to Beall, if the bills should be protested. In case of protest, Cockburn was not to be liable for damages. This was enclosed to Mr. Beall by Mr. Mason, in a letter of the 14th of the same month. Beall, in reply, dated 19th February, offers six pounds in the paper currency for one pound sterling, and says, “he may rest assured that I will use every means to have his bills presented as early as possible; and, from my connections *with Jamaica, I think I could know the event in three months:” and, on the 27th of February, 1779, Cockburn writes another letter, offering to take eight dollars in paper for one dollar in specie, which not being accepted, Cockburn wrote to Beall on the 14lh of March, 1779, stating that he had consulted two or three gentlemen on the occasion, who agreed with him, that Beall’s offer was too low, and that Cockburn’s proposition was reasonable. In this letter, he offers his bills at 800 per cent, on the sterling. On the 1st May, 1779, Beall, on his way through that part of the country, called on Cockburn ; and the following agreement was entered into:
    “Memorandum of an agreement made this 1st day of May, 1779, between Martin Cockburn, esquire, of Fairfax county, and Samuel Beall of Williamsburg, witnesseth, that whereas the said Cockburn has a claim in Jamaica of about thirteen or fourteen hundred pounds sterling money, for which said Beall promises and engages, on receipt of bills for the same, to give his bond for the payment of the same, at the rate of seven hundred pounds current money of Virginia, for each hundred pounds sterling money-, and for account of the said draught; the bond to be payable with interest, from the date of the said bills, if honoured; the bills to be delivered, by Mr. Cockburn, to colonel George Mason, to come, by him, to the ensuing assembly, when said Beall is to give his bond for payment, as above. And it is further agreed, when accounts are received of the payment of the above draughts, the money due on account thereof is to be put into continental treasury notes, on interest, by said Beall, and delivered to Mr. Cockburn.
    “Samuel Beall,
    “Martin Cockburn.”
    The bills were drawn and delivered to colonel Mason, who carried them to Wil-liamsburg, and having casually said that he had bills of exchange at seven pounds paper currency for one pound sterling, a gentleman declared that he would have given twelve pounds paper money for one pound sterling in good bills.
    *The bills were delivered, and a bond executed by Mr. Beall, after being revised and corrected by Mr. Mason. The bond is dated on the 25th of May, 1779, the condition of which, after stating the bills received, proceeds thus: “and it hath been agreed, between the said parties, that the said Samuel Beall shall, by the earliest conveyance, forward the said bills for payment, that, in case of protest, the said Martin Cockburn shall not be liable to or answerable for any damages, and that for such sum or sums of money, as shall be paid, on account of the said bills, or either of them, to the said Samuel Beall, or his order, he, the said Samuel Beall, shall be answerable for, and pay to the said Martin Cockburn, at the rate of seven hundred pounds current money of Virginia, for each and every hundred pounds sterling money, which shall be so paid, together with legal interest thereon from the before mentioned 6th day of May, in continental loan office certificates of the state of Virginia, or Maryland.”
    The correspondence between Samuel Beall and Thomas Webb & Co., his agents in Curacoa, was filed, from which it appeared that Beall had forwarded the bills in a letter, dated the 26th .of May, 1779; that their receipt was acknowledged in a letter dated the 2d of August, 1779; in which Webb says, “opportunities from hence to Jamaica are very rare, sometimes not one in six months. A gentleman here, who has a vessel that will go there in few weeks, has offered to take Cockburn’s drafts; and, if they are honoured, pay us the amount, provided we will take part in produce. We have not yet agreed with him; but insisted on his paying the whole in cash ; ■however, if we cannot get him to do this, we must accept of his proposal as we otherwise may lay out of the money, a considerable time.”
    Beall’s letters, the last of which is on the 6th of December, 1779, press the negotiation of the bills.
    On the 27th of November, 1779, Webb says, “We have at length sold Cockburn’s drafts to a merchant here, who has sent them to Jamaica; if they are hon-oured, he is to *pay us the money here.” In April, Webb had.no information concerning the drafts. On the 23d of May, 1780, he says, “The gentleman, who had Cockburn’s drafts on Jamaica, has received ^500 in part of the bill on Thomas Cockburn, esquire, and was promised, both by him and Doctor James Cock-burn, that the whole of the bills should be paid . in a few months. We have not yet received this ^500, but expect we shall in a short time; and, in a few days, we shall have an opportunity of sending the bills down again. The Mr. Cockburns in Jamaica did not accept the bills, but gave their word of honour that the money should be paid, which was the reason that the gentleman who held them did not have them protested.”
    The bills were presented, on the 11th of November, 1779, by Cornelius Murray, for Albinum de Lima the indorsee. They were not accepted, on account of the shortness of the sight. Thomas Cockburn proposed to pay ^500 immediately, and the balance in a few months. After consulting Albi-num de Dima, Murray closed with this proposition, and received £210 on the 26th of November, and the balance of the £500 on the 20th and 24th of December. On the 5th of July, 1780, the bill was again presented by Michael Cambioso, and was then fully paid.
    When presented by Murray, it was indorsed by Beall to Thomas Webb & Co., to John H. Meyer, and by Meyer to David Albinum de Lima, who was his captain. When the bill- was presented to Cambioso, the indorsements subsequent to that to Thomas Webb & Co. were struck out, and the money was received on their account.
    James Cockburn agreed, in like manner to pay his bill, but having, at length, received a letter, from Martin Cockburn, requesting him not to do so, he refused, and the bill was protested.
    Martin Cockburn wrote to his brothers on the 15th of April, 1780, requesting the bills to be protested. In March or April 1781, Beall sent a verbal message to Cock-burn, informing him that one of his bills was protested, and the *other paid. He said he should write by | the bearer of the message, but an invasion took place; and the gentleman came away, without a letter.
    On the 7th of May, 1781, Cockburn writes to Beall acknowledging the receipt of the information, and says that he has never heard from his brothers on the subject. He thinks, from the length of time and'depreciation of money, their agreement ought not to be in force. He proposes terms of accommodation; and adds that he is happy to be informed that he has a man of hon-our and integrity to deal with.
    On the 2d of June, 1781, Beall called on Cockburn, and paid him 21,300 dollars, in loan office certificates, in satisfaction of the bill drawn on Thomas Cockburn, which had been paid.
    In December 1781, an act passed containing a table of the depreciation of paper money by which the depreciation at the time of the above payment, amounted to two hundred and fifty for one. Loan office certificates had in fact depreciated with paper money, but, by the act of 1781, they were payable, by the government, according to their value, at their respective dates.
    The certificates paid by Beall to Cock-burn were many of them dated before this contract, and the residue soon after it, and appeared to have been immediately set apart for the purpose of being paid to Mr. Cockburn.
    Beall having discovered that the protest of the bill drawn on James Cockburn, was produced by the letter of Martin Cockburn, instituted a suit at law on the protested bill, and Martin Cockburn brought a suit in chancery to injoin Beall from proceeding at law, and to oblige him to return the money he had received, and to take back his certificates, alleging fraud in the original contract; and, in the subsequent delay, and in the indorsation of the bills, also alleging, that it was unknown to him when he received the certificates in June 1781, that Beall had assented to these delays.
    *In March 1789, the chancellor delivered fhe following decree:
    “The court is of opinion, that the agreement, between the plaintiff and defendant, was broken, by the latter, in selling the bills of exchange before they were accepted by the persons on whom thejr were drawn, and in failing to give notice so early as it ought to have been given, to the plaintiff of the acceptance of the bill drawn on Thomas Cockburn; and therefore that the said agreement was no longer binding on the plaintiff; and the delivery of the certificates to him, in June, one thousand seven hundred and eighty-one, was not a payment, barring him of any relief, to which, otherwise, he would have been entitled, and that the defendant ought not to recover the money for which the bills were drawn upon James Cockburn. Therefore the court doth order and decree, that upon the plaintiff’s redelivering or tendering, to the defendant, the said certificates received in June 1781, the defendant do pay to the plaintiff one thousand one hundred and forty-six pounds twelve shillings and three pence current money of Virginia, equal in value to ^1167. 10. 534- current money of Jamaica, with interest on ^491. 1. 4. part thereof, from the 30th of November, 1779, and upon ,£655. 10. 11. the residue, from the 5th of July, 1780, and the costs of the plaintiff: in this suit, and that the injunction to stay the proceedings in the action at common law tp recover the money, for which the bills were drawn on James Cockburn, be made perpetual; and that the defendant deliver up the last mentioned bills of exchange to the plaintiff, and pay to him the costs of that suit.”
    From which decree the defendant appealed to the court of appeals.
    Wickham for the appellant.
    The first point, insisted on for the appellant in this case, is,
    That the original contract was a fair one in itself.
    Beall, a merchant in want of specie, obliged to obtain it on any terms, was more in the power of Cockburn than *Cockburn in his. All the particular circumstances of the case establish the fairness of the contract. Examine them.
    The bill states, that the proposal came from Beall, and that the price was left to his honour; but the fact is, that no bargain was ever concluded with more caution. Examine the correspondence which proceeded the contract. The defendant writes to Mason, who opens the business to Beall. He then transmits his terms through Mason. These being rejected, and six hundred per cent, offered, he consults with those whom he could confide in, and offers to sell at eight hundred per cent. At length, the contract is concluded at seven hundred per cent, on the sterling.
    The only objection is, Beall’s letter to George Mason, informing him, that he thinks he can get information of the fate of the bills, in three or four months. This, however, proves nothing; for he might have had reason to think so at the time; indeed the depositions of Harper and others prove that it might possibly be done: and, if it was not, it was probably owing to the casualities of war. But the contract was not founded on this letter; nor is Beall restricted to any particular time; which could only have been inserted to guard against depreciation; and Cockburn had no idea of that, for he wanted certificates, on loan. Time then was indifferent to him; and, accordingly, he fixes none. Besides this, at most, could only go to a breach of the contract, which would be the subject of damages.
    The appellee has acknowledged the contract to be good, by every step he has taken. Thus his letter to his brothers, in April 1780, directing the bills to be protested, assigns as the reason, for that extraordinary measure, the depreciation of the money, and not the misconduct of Beall: nor does he, in any of his transactions with Mason and others, ever hint at imposition. On the contrary, in his letter to Beall, after he heard that one of the bills was paid, and the other protested, he says, that he doubts not, that he has a man of honour to deal with. Easily, his receiving the certificates without objection, admits the fairness of the contract, and establishes its validity.
    *This puts an end to the contest. For when a contract is made, both parties are bound. Had it proved disadvantageous to Beall, he could not have annulled it: neither ought the appellee to have it in his power to do so. For it is not on the footing of those contracts which are set aside in equity: that only happens when the agreement was originally void, or one of the parties is unable to perform, in which case the other is excused. But, as nothing of that kind exists in the present case, an action for damages is the only remedy of the appellee, in case Beall has broken his engagements.
    The question then is, has he committed a breach?
    The first charge is, that he sold the bills;. but it will hardly be contended that a mere' endorsement, which was necessary for negotiation, was a sale. Payment could not have been obtained from the " drawees without; for they were payable to the order of Beall. The appellee therefore must prove the sale; but this he cannot do; for the evidence is the other way. Beall’s letter of the 26th of May, desires Webb & Co. not to sell, but to remit the bills as early as possible for paj^ment, and to be careful in whose hands they are negotiated. Their answer, in August, states that a gentleman offers to take the bills; and if honoured, to pay the amount; which necessarily implied, that they were to be returned, if not honoured. The same idea prevails in their letter of the 22d of November; and the bills were, in fact, returned to Webb & Co. without any demand for repayment; which is a certain proof that they were not sold; particularly, as the endorsements were special.
    But admitting them to have been sold, that will be no reason to avoid the contract. The most that could be contended for is, that Beall had covenanted, that Cockburn should not be answerable for damages in case the bills were protested. But one of them has been actually paid; and the other is now in Beall’s hands, who is therefore able to perform his stipulation, and consequently the appellee is not injured.
    ^Therefore as the bills were not sold, and the appellee has not sustained any damage from the conduct of Beall, there is no ground for setting aside the contract; and consequently, one of the main pillars of the decree falls to the ground.
    The third point is, that credit was given to the drawees. But if so, Beall had no hand in it: nor had Webb & Co. ; for it was all done before they had any knowledge of it. But then it is said that there was delay in protesting the bill: which, however, admits of the same answer; it was done without the knowledge of Beall, or Webb: and the appellee has sustained no injury from it; and could sustain none, because the credit discharged the drawer, Gee v. Brown, 2 Stra. 792; Hull v. Pitfield, 1 Wils. 46, at the same time that it rendered Beall, if acquainted with the transaction, liable to pay the paper money: which gave Cockburn a certain advantage.
    There was no delay in negotiating the bills. For they were sent to the West Indies two days after Beall received them; and in August following Beall writes to Webb & Co., that he presumes they have been paid; and begs them to hurry the information with respect to it; and, in December, he writes that he is impatient to hear the fate of the bills. The first intelligence, however, which he gets upon the subject is contained in a letter dated in Hay 1780; but when it was received is uncertain. In the mean time Cockburn rests quiet, and takes no steps, except his letter to his brothers in April of that year, directing a protest, although he could so easily have made enquiries of Beall as to the tidings, if any, which he had received concerning the bills.
    But the receipt of the certificates, by the . appellee, is conclusive. It was done with his eyes open; and his plea of' ignorance will not avail him; for he probably knew .all the circumstances; and if not, it is of no consequence, as his acceptance binds . him ; especially as he kept the certificates several years, without complaint.
    *The appellee has sustained no loss, except what resulted from the state of the times. He sold his sterling money for a depreciating currency, and he has suffered by it; but it was damnum absque injuria; it was the common lot of all who sold property at that period. A man in those days, sold land upon credit for paper currencjr; the money depreciated, but still the contract was good; and . there is no more reason for annulling the agreement in the present case, or of affording any other relief, than there would be for interposing in such a sale of lands, as that just mentioned.
    The contract then is valid; and if the appellee has sustained any injury, he must resort to a court of law; for a court of equity has nothing to do with it. He has his bond and agreement; and if he has suffered any injury from the misconduct of the appellant, a jury will afford him adequate redress.
    John Taylor, for the appellee. The whole case depends upon the contract which was inchoate on the 1st, and perfected on the 25th of May, 1779; and should be thoroughly understood before we proceed, Was it final, or contingent? And, if contingent, on what contingencies did it depend?
    It occurs, here, to enquire, whether any thing was understood, on the 1st of May, 1779, not expressed in the written memorandum?
    The bond is a written evidence, that there was: It is a solemn and .formal admission of the fact, while it was fresh in Beall’s memory. The transaction, on the 1st of May, was only to mark the outlines of the contract; that, on the 25th, more at large, explained the intention of the parties.
    It is not necessary, for me, to contend for an unwritten agreement, in opposition to the written contract, because the written agreement of the 25th of May, does, sufficiently, disclose the ideas of the parties.
    Mr. Beall stipulates, on his part,
    1. To forward the bills, by the earliest conveyance, for payment.
    *2. That, in case of protest, Mr. Cockburn was to be answerable for no damages.
    3. To pay for any monies received, as soon as the amount could be known, in certificates.
    Here, then, were three contingencies, upon which; the perfection of the contract depended; and, if it did, then they were conditions precedent; and this was a contract executory.
    Could a case have existed in which an exact and critical compliance, with the intention of the parties to a contract, was more important? And were not all these conditions founded in strict justice; and calculated to prevent an undue advantage from being obtained?
    These three conditions were linked together, and serve to shew what Mr. Cock-burn’s great object was. It was despatch. He wished to transfer his property to his own country. But he saw the peril of doing it, owing to the continual depreciation of paper of every denomination. Against 'this peril he had a right to stipulate for every precaution. On his part, despatch would be a great security against a considerable loss, as it would also on the part of Mr. Beall, in case of a sudden peace; for no other event could have interested him in favour of despatch.
    In pursuance of this object, Mr. Cockburn drew his bills at thirty days sight. If he only meant to put his money at interest, why does he stipulate for the earliest conveyance of the bills? Why draw them at this short sight? And why is it part of the contract, that the certificates should be paid, as soon as notice could be got of any monies received? His money was at interest if the contract should be eventually executed from the date of Mr. Beall’s bond in the penalty of .£19,363. 15. 10. ; and it was at interest in the shape of certificates too. If this, then, was the sole object of his wishes, it was accomplished on the execution of the bond; and delay in the negotiation would have been no concern of his. But the c.areful manner in which he attempts to guard against delay, shews that he had other objects; and proves *that he meant to keep a power over the further disposition of his property, after it was converted into the shape of certificates, for very obvious reasons.
    Whatever were Mr. Cockburn’s motives, he made these conditions of the contract: that the bills should be forwarded by the earliest conveyance, for payment; that, in case of protest, no damages should ensue; that, in case of payment, he should receive the certificates, as soon as possible; and that, in the mean time, while these events were contingent, he should not take any of Mr. Beall’s money, because, he might, in event, be entitled to none. How were these conditions complied with on the part of Mr. Beall?
    Were the bills forwarded by the earliest opportunity? Although one party seems to require, and the other to undertake, that extraordinary diligence should be used in presenting the bills for payment, let us suppose for argument sake, that Mr. Beall was only bound to use ordinary diligence. Did lie even come up to this idea? Mr. Beall is answerable for the delaj’s and conduct, of every kind, of every intermediate person, from himself to the drawee. It was his business to employ such agents as would comply with his stipulation. Here I must resort to his own disclosures. Thomas Webb & Co., instead of forwarding the bills immediately, entered into a negotiation for disposing of them. This negotiation, from the manner it is spoken of, evidently consumed some time, which ought to have been employed in searching for an opportunity to forward the bills. The letter conveying this information is dated the 11th of August, 1779; and the agents of Mr. Beall, in the West Indies, had then been, for some time, possessed of the bills. For, on the 27th of November, 1779, they write, “We have, at length, sold the bills to a merchant, who has sent them to Jamaica, &c.” So that they had been employed above four months, in attempting to sell the bills. Was this forwarding them, by the earliest opportunity, for payment? But, what is very remarkable, no sooner are the bills sold, than they are sent off by the purchaser to Jamaica, for pay-meat. The transfer at *once annihilates the difficulties attending the communication between Curacoa and Jamaica. Again, within 23 days, they say, maugre all these difficulties so seriously dwelt upon in the answer, “We are mo-mently expecting to hear the fate of Cock-burn’s drafts.”
    But why need I argue to prove that neither extraordinary nor ordinary diligence, was used in presenting the bills for payment. It was near two years before Mr. Cock-burn received any account of them. Mr. Beall hesitates, doubts whether he could have promised that they should be returned in four months. Two years. How does this term comport with the evident intention of the contract; with despatch in presenting; with thirty days only; with the idea of quick payment in this depreciating commodity?
    It is, however, attempted to be accounted for in the answer, by ringing in our ears the changes upon Virginia, Jamaica and Curacoa. It was caused by the circuitous voyage from Virginia to Curacoa, from Curacoa to Jamaica, from Jamaica to Cura-coa, and from Curacoa to Virginia. Was it equal to a voyage round the world? If we knew nothing of the geography of the places, but judged by the time only, we must conclude that it was.
    Do we not account for the delay, by saying, that it was caused by the negotiations of Mr. Beall’s agents for the sale of the bills in Curacoa, and by the chafferings with, and indulgence given to the drawees in Jamaica, after the bills were presented for payment?
    But is it incumbent upon us to account for the delay at all? Surely not. It is Mr. Beall’s duty to do it. He endeavours to do so, by recurring to circumstances fixed, immutable, and known to the parties at the time of the contract. Virginia, Jamaica and Curacoa have not changed their positions since the contract. Mr. Beall, knowing their geography, thoroughly acquainted with the time necessary to expend in this circuitous voyage, stipulates for despatch; opens a negotiation to be completed in that space. Mr. Beall has failed on his part. Shall he excuse himself without '"'alleging any thing new? If he knew, at the time of the contract, that this circuitous vogage would expend two years, was it right to hold out an idea of despatch to a man, not engaged in mercantile pursuits, and who relied upon Mr. Beall’s known acquaintance with the subject? If Mr. Beall could do this, then he may be said to have had an excuse, ready cut and dry, for breaking, at the very time of making the contract. If he could not, then he has in no manner attempted to account for this gross delay.
    In arguing to prove the first condition broken, I have unavoidably established the breach of the third also. That the certificates were not paid as soon as the payment of the money received could be known, nor within a reasonable period after it was known. For Mr. Beall’s disclosures shew, that his agents in Curacoa wrote to him, on the 23d of May, 1780, that ^500 of the money was paid; and yet he offered no certificates until June 1781, above one year afterwards.
    Thus the first and third breaches are clearly established.
    But the second breach is the principal point:
    In case of protest, Mr. Cockburn was to be answerable for no damages. In this event, all was to stand for nothing. As in case of no payment, Mr. Beall paid nothing; for he only stipulates to pay for the money actually received; so, in the same event, Mr. Cockburn loses nothing. The contract sufficiently discloses this idea; and this idea is conformable to the spirit of those letters; of which Mr. Beall in his answer says, the contract was pursuant.
    It is conformable, too, to the caution of a plain honest man, fearful of involving himself, and too virtuous to be artful, or suspicious. Let the contract, his letters, and the whole complexion of the case, bear witness to the justice of this character, when applied to Mr. Cockburn.
    What was meant by this stipulation? Was it a substantial, virtual protest? Or a formal protest only?
    Could it have been the intention of the parties, that Mr. Beall should offer the bills for payment; that payment, ^'within thirty days, should be refused ; that he might then enter into a negotiation with the drawee; that he might solicit, and solicit: indulge and indulge; retaining always the power of having a formal protest; and producing great and unexpected delay? It could not.
    For if Mr. Beall could do this, where was the use of the 30 days precaution? What was the effect of the stipulation to forward the bills, by the earliest conveyance, for pavment? What became of the stipulation holding out an idea of a rapid payment in certificates? They were all nugatory. If he might do this, then he might, without the concurrence of Mr. Cockburn, alter the terms, the spirit, and the letter of the contract. He might give it an entire new complexion. Do the principles of law, or equity, warrant this?
    As I take it, Mr. Beall was bound to require a categorical answer, within the thirty days. Under the contract, he could say nothing, but pay, or protest.
    This will be manifest by considering the consequences, if he could prolong the indulgence to a term beyond thirty days.
    1. Expedition, the great object of the contract, was defeated.
    2. Mr. Beall might speculate safely at Mr. Cockburn’s risque.
    3. By holding up the bills, and having an eye to the progress of the certificate depreciation, he might diminish, to the lowest value, what he was to pay; and, if the certificates appreciated, by having the bills protested, he might, at any moment, dissolve the contract.
    4. He might, for an unlimited period, deprive Mr. Cockburn of the use of his property in any shape, and keep him in a state of suspense.
    Now was it intended by this contract, that Mr. Beall should be invested with these powers, which might be exercised in a manner so detrimental to Mr. Cockburn? If not, then the court will not regard the ceremonial, but the essential of a protest.
    * After the bills were presented, and payment refused within the thirty days, they were substantially, and to all intents and purposes, protested. The contract was effectually annulled: nor could Mr. Beall, or his agent, without the concurrence of Mr. Cockburn, continue it a moment longer. Mr. Beall took the bills upon the terms of an acceptance within thirty days. If this term was not complied with, he was absolved from his contract; nor could he ever, by his own act, place himself in so advantageous a position, as to be able to say, let this contract be void, or let it be binding. The event and not Mr. Beall was to decide this: And the event spoke, at the same moment, to both parties, “Your contract is annulled.”
    At this moment, Mr. Beall was released from the contract. Every thing after-wards was a voluntary and ex parte business — -a process without authority.
    To understand the prejudice which Mr. Cockburn would sustain if not redressed, we must look back to the epoch of the transaction ; nor will our attention be taken off from the uncertainty which then existed, to contemplate our present happier prospects.
    By the delay, the effect of this, ex parte, process, Mr. Beall would have enabled himself to watch for the lowest point of depreciation, and to have paid the certificates at that moment. He actually availed himself of this critical point. In June 1781, he paid the certificates: which were not then worth ^20. It is unimportant to en-quire whether Mr. Beall gained, or not. It is evident that Mr. Cockburn, by this process, sustained an immense loss. He was losing an estate, and getting a song.
    If subsequent events might have, in some small degree, repaired this loss, it is no defence for Mr. Beall. But even subsequent events, unexpected by many, and reckoned fortunate by all who reflected in June 1781, have not placed Mr. Cockburn where he might have been, if the contract had been strictly pursued. In 1779, he might have invested the certificates in property to great advantage, so as *to have wholly prevented, or greatly to have lessened-the loss; and the progress of depreciation would very probably have suggested the idea to him.
    I have urged the consequences to show the extreme injustice of swerving from the contract; or of substituting a formal, in the place of a substantial fulfilment of it.
    The bills, then, not being accepted, within thirty days after they were presented, was a complete protest under the contract, and an abrogation of it.
    Perhaps I may be accused of assuming this fact.
    It is proved as far as a negative can be proved by the length of time, by the letters of Webb & Co. and by the depositions. But, be that as it may, it is incumbent on Mr.' Beall to prove the contrary; and, if he does not,' it will be presumed against him, under that rule of evidence which declares, that if a man has the testimony in his own hands, and will not produce it, the presumption is, that it is against him. And this part of the transactions was conducted by Mr. Beall and his agents; for they presented the bills.
    Thus it is clear to me, that Mr. Beall has broken the spirit, and even the letter, of this contract, in every article; that the contingencies, on which it depended, never happened; and, that it was, therefore, annulled.
    The argument, so far, goes to the whole case. Did the transaction of the 2d of June, 1781, create a distinction in favour of Mr. Beall? It did not. Eor Mr. Beall did not then disclose the steps which had been taken with the bills: and therefore, the transaction will operate in two ways only.
    1. It will remain a monument of Mr. Cockburn’s upright intention, which is obvious throughout the transaction.
    2. It would have been a ground of jurisdiction, in this court, if no other ground had existed.
    Mr. Beall ought to have apprized Mr. Cockburn of the causes which had occasioned the delay of presenting the bills to the drawees, and the receipt of the ¿£500; why he had not paid the certificates as soon as it was paid, together with all the other circumstances necessary to the enabling *him to form a correct judgment of the whole transaction. And if he neglected to do so, he will not be permitted to avail himself of his own suppression of all the material facts, and to urge the acceptance of the certificates by Mr. Cockburn, at a time when he was entirely ignorant of all the transactions.
    Mr. Cockburn’s directing the bills to be protested, was not objectionable:' It was justified by the delay; which was a solid ground for suspicion, that the contract was broken: and the letter, which contained the instruction, is written in a spirit of honour, justice, and solicitude to act properly.
    One word more on the subject of Mr. Beall’s delays. When the j£500 was received from Thomas Cockburn, and time given for the residue, it amounted to the taking of the whole of that bill upon himself by Beall; and he ought immediately to have paid certificates for the full contents of it; but this he neglected to do; and therefore, in that respect, too, broke his contract, which he ought also to have imparted to Mr. Cockburn in June 1781, when the certificates were accepted by the latter; but without the smallest hint at this omission, on the part of Mr. Beall.
    To sum up all in a few words: Mr. Beall broke his contract in these particulars, namely: in not forwarding the bills to the drawees for payment, by the earliest conveyance; in selling the bills before acceptance, although no property had then vested in him; and thus subjecting the drawer to the hazard of damages if they should be protested; in concealing the payment of the bill on Thomas Cockburn for upwards of 18 months after the money was received; in not paying the certificates “so soon as payment of the bill was known;” and, finally, in concealing all the material circumstances and transactions, relative to the bills, from Mr. Cockburn : And, after so many infractions of the contract upon his part, he cannot insist upon performance of it by Mr. Cockburn, especially when it has been put an end to by the refusal of the drawees to pay the bills, which, *ipso facto, as before observed, annulled the bargain; for by the terms of the contract, there was to be no sale of the sterling money, unless the bills were honoured.
    The jurisdiction of the court of chancery was clear, 1, upon the ground of fraud in suppressing the facts; 2, upon the want of a discovery of those facts; 3, upon the ground of compelling Mr. Beall to surrender the protested bill, and desist from further prosecution of the suit commenced in the general court.
    Marshall, in reply.
    The questions, on which, as it would seem to me, this case must depend, are
    1st. Is the contract a fair one?
    2ndly. Is there any thing in it, which will authorize a court of equity to set it aside?
    3dly. Is there any thing in the subsequent conduct of Mr. Beall, which will avoid the contract, or which will justify this court in avoiding it?
    1st. The contract is a fair one.
    The counsel for the appellee seems to have relinquished this point; but I deem it too important in the cause, to pass it over in silence.
    The circumstances of unfairness stated in the bill, are
    1st. That the contract was proposed by Mr. Beall.
    2d. That he afterwards came to the house of Mr. Cockburn for the purpose of completing it.
    3d. That Cockburn, unacquainted with the subject, left the price to Beall’s hon-our, who wrote the agreement, and deceived him in the price.
    4th. That Beall deceived him, also, in the time which would be employed in negotiating the business.
    In answer to these statements, it is to be observed,
    1st. That the contract was not proposed by Mr. Beall. The letter of February 14th from Mason, inclosing that of February 11th, from Cockburn, shews the proposition to have been made by Cockburn himself.
    *2d. That Beall called on him, while on a journey, is a circumstance to which no importance can be given.
    3d. There is no proof or reason to believe that Cockburn was unacquainted with the current value of money in Jamaica; or that its price was fixed by Beall. There is no testimony in support of either proposition. The answer denies them. They are controverted by Cockburn’s own letter of the 11th, and more especially by that of the 27th. That the agreement is in the handwriting of Mr. Beall, can avail nothing; because, no other person having been present, it must have been written by one of them, and it is not even alleged that any thing was inserted in the agreement, not understood.
    Deception in the price then is disproved.
    But could the bills, according to their then current price, have been sold, at a higher exchange?
    Cockburn has taken no testimony to show the then current price of bills. Had that fact been in his favour, he might and ought to have taken testimony to establish it.
    Beall’s other purchases, his answer, the letter of the 19th of February, 1779, Cock-burn’s information on the subject, the length of the negotiation from the 11th of February to the 1st of May, (independent of the probability, that after he was informed of his power to draw by letter, dated 4th of April, ’78, he had made enquiries, before his application to Beall,) all contribute to prove that the bills sold at their then current price.
    In opposition to these circumstances are the difference between the amount of the bills and of the price received for them and the deposition of Mr. Mason.
    In answer to these objections, I contend, that the war, which then existed, must have produced immense difficulty in drawing money from our enemy: that the hazard to which that money was liable, must have lessened its value; and that the real value of our paper money as since established by the scale, was not, at the time of this contract, known to any person whatever. To lay hold of this fact, *as a circumstance of fraud, would be to shake every contract from the first of 1777 to 1782.
    As to the offer of twelve for one, which colonel Mason says one gentleman would have made him in Williamsburg, had he been at liberty to sell the bills, I have to remark, that colonel Mason does not say who made the offer. He might be a man not to be trusted — a mere boaster. He might be one, who, if he knew of the credit to be given, speculated on the increasing depreciation of paper; or he might not have known the circumstances under which the bills were sold. It is nothing more than the loose expression of an unknown individual. ,,
    4th. The charge of deception with respect to the time which would be consumed in negotiating the bills, has no other support than an expression in Beall’s letter of the 19th February, 1779, saying that he should probably know the fate of the bills in three months.
    It is proved, that after this letter, the contract was entirely broken off.
    The letter was addressed to Mr. Mason, who was, notoriously, a competent judge of the subject.
    Beall does not assert the fact that he should receive notice in that time, or undertake that he should receive, and he might have been mistaken. This might have been the impression, then on his mind, which experience afterwards corrected.
    It does not appear, that Cockburn was informed of this letter, or. that it had any influence on his conduct. He does not mention it in his bill, which is drawn with much attention to circumstances; nor is it, in any manner, alluded to in the agreement, in the bond, or in his subsequent letters to Beall, relative to this transaction.
    The contract then was fair in its origin —was made, with equal information, by persons equally capable of contracting.
    2dly. There is no ingredient in it which will authorize a court of equity to set it
    *If there be, ’tis
    1st; The disparity of value; or
    2dly. The letter of the 19th of February, 1779; or
    3dly. That the contract was contingent.
    The first objection has been too often overruled ever to be seriously made again.
    The second has been fully considered, while investigating the fairness of the contract.
    But suppose (which I can only admit for a- moment, in order the more certainly to remove the objection) it was even in proof that Mr. Cockburn had seen that letter, and relied'on its information, and that it could only be explained as he now explains it, it amounts to no more than a declaration that, in the opinion of Beall, the money for the bills would, under the contract, have become payable in three months.
    If in this he was mistaken, does it avoid the contract, or give Cockburn a right to compensation in damages? Suppose this to have been the common case of a contract for lands instead of bills of exchange, and that Beall had stated that his funds would enable him to pay in three months. Nay more, that he had given his bond for the purchase money, payable in three months, and thereupon a sale had been made. On failure to pay, what would have been the decision of this court? Could the contract on that account have’ been annulled? The experience of every man will enable him to answer this question in the negative. If it had been designed, that the obligation of the contract should depend on the time employed in negotiating the bills, a condition of that sort would have been inserted.
    There is then no ingredient in the contract which will authorize this court, under the pretext of a specific performance, or any other, to annul it.
    3dljr. Is there any thing in the subsequent conduct of Mr. Beall, which will avoid the contract, or which will justify this court in avoiding it?
    Let that conduct be dissected, and let its parts be critically examined.
    *It consists of
    1st. The time and mode of expediting the bills for negotiation.
    2dly. The manner of negotiating them p and
    3dly. The delay of information to Cock-burn, subsequent to their negotiation.
    1st. The whole testimony which concerns the time of expediting the bills, is com-prized in the answer of Mr. Beall, and in his correspondence established by that answer, and by the deposition of Mr. Holmes.
    The bond given by Beall is dated the 25th of May. Beall’s letter to Thomas Webb & Co. is dated the 26th of May. This letter was, probably, received some little time before an opportunity presented itself to answer it, and the answer of Thomas Webb & Co. is dated the 2d o£ August. The bills were forwarded to the agent of Mr. Beall in Curacoa, and no better medium, of negotiating them could have been adopted, as a direct communication, with Jamaica, was impossible. The time and mode of expediting the bills then are unexceptionable.
    2dly. The mode of negotiating them is to-be considered.
    The charges made, on this part of Mr. Beall’s conduct, are
    1st. The delay in transmitting them to-Jamaica.
    2dl3r. The endorsement of the bills.
    3dly. The time of payment given to the drawee.
    1st. The delay in transmitting them to Jamaica.
    This is not chargeable to Mr. Beall. There is no particle of evidence to countenance such an opinion. All his letters to Thomas Webb & Co. show great anxiety for despatch. It was his interest to be as expeditious as possible in obtaining an acceptance of them, that the benefit of his contract might be secured.
    Nor is it to his agent.
    It was not to be expected that a vessel should be freighted for the purpose of carrying these bills from Curacoa to Jamaica. The words of Beall’s bond require that the earliest conveyance shall be taken — not that a conveyance shall be created for that particular purpose.
    *An opportunity then was to be waited for, and such an opportunity as might prudently be used. These, as is stated by Webb, in this letter of the 2d of August, were unfrequent.
    There is no reason to suppose negligence or delay in We'bb, and there is no proof of either, since it is not shewn, or alleged, that a single opportunity presented itself, and was neglected.
    The delay then arose from the nature of the transaction.
    But, if there had been in fact an unnecessary delay practised by Beall’s agent, this would not go to the original contract, and consequently would only entitle Cockburn to compensation in damages.
    2dly. It is also objected that Beall has broken his contract, by endorsing the bills.
    The contract contains no stipulation against their endorsation.
    Cockburn was only solicitous to avoid damages in case of protest, and against these he was probably secured by the nature of the endorsement, or by the stipulations made with the endorsee. That this was adverted to, is proved by Webb’s letters of the 2d and 21st of August, 1779, and by that of the 27th of November, 1779. Cockburn’s deposition proves that the final payment was made on account of Thomas Webb & Co. In any event, Cockburn has not been subjected to damages.
    This might be, and probably was, the most safe and practicable mode of negotiating the bills. It differs from a negotiation, merely on account of Beall, but little in form, and nothing in substance.
    The endorsement then was not even a breach of contract; but if it was, it could only entitle Cockburn to damages, ana he has sustained none.
    3dly. But it is alleged, that the holder of the bill, bjr extending the time of payment, has fraudulently broken the contract, to the injury of Cockburn.
    This indulgence is, obviously, not attributable to Mr. Beall personally, since it never received his approbation. *See the correspondence with Murray’s and Cockburn’s depositions. There was no communication with Beall, nor was there time to have communicated with him after the indulgence was requested before it was granted.
    But I will admit Beall to be completely accountable for the act of the holder of the bills, since every holder was his agent.
    The holder of a bill has a right to give time, and the only effect of his doing so is, that the drawer is discharged. It is at his option to protest for non-acceptance, or to permit an acceptance, on any terms he may please, considering the bill as paid, so far as concerns the drawer.
    If the holder makes a negotiation of this sort with the drawee, the bill, as to the drawer, is paid. What is it to the drawer what is received in payment, or when payment is made?
    This is, indubitably, the general principle. What differs this case from that principle? There is no other circumstance than this, that the money for the bills was not advanced.
    How does that circumstance differ it.
    This was not a 'wager whether the bills would be accepted, or not; but a contract, the object of which was to draw money from Jamaica into Virginia. In promotion of this object, the condition of the bond shews that partial payments might be received, and were contemplated.
    The object of Mr. Cockburn then was, that the bills should be paid. Changing the mode, or time, to secure this object consequently promoted his intention, provided the bills be considered as paid, according to their tenor, when the change was entered into.
    Suppose the contract had been advantageous to Martin Cockburn, and Thomas Cockburn had failed after the 30th of November, 1780, Martin Cockburn could, unquestionably, have recovered the certificates from Beall; because the holder of the bills, by giving time of payment, had taken on himself the whole risk of payment. Cun. Haw of Bills, *40, sec. 6, 8, and p. 47, sec. 6. It is a new contract which discharges the bill. 2 Strange, 792; 1 Wils. 46. In that event, the specific performance claimed and decreed would have been a payment of the certificates.
    That the money for the bills was not advanced, cannot affect the case on other grounds. A bond is given in lieu of money. If the conduct of the holder is such as to deprive him of the right of resorting to the drawer for the money, had money been advanced for the bills, the same conduct subjects him to the payment of the bond, and deprives him of any right to relief against it.
    The negotiations then giving further time of payment, which are complained of, do not affect the case, and the bills are to be considered, as having been paid, according to their tenor, thirty days after they were presented.
    3dly. Is there any thing, in the subsequent conduct of Mr. Beall, which has avoided this contract, or which can justify this court in setting it aside?
    On this point, nothing can be urged against Mr. Beall but the delay which was practised.
    It appears that Webb was not informed of the fate of the bills on the 1st of April, 1780. He gives the intelligence on the 23d of May, 1780. The unfrequency of communication between Jamaica and Curacoa, is the only rational - solution of this delay in giving intelligence to Webb. Beall probably received the information early in July 1780.
    It was communicated to Cockburn early in May 1781, as appears by his letter of the 7th of that month.
    In this delay there was obviously no fraud or speculation, because Beall is proved to have had the certificates in possession, and of consequence could gain nothing by a further depreciation.
    If there was negligence, Cockburn himself participates in it, as he does not, during the whole time, address a single enquiry to Beall on the subject.
    From the fall of 1780, until after the certificates were paid to Cockburn, the lower country being invaded, was in *a state of confusion, which might in some degree account for Beall’s omitting to communicate a circumstance, he did not deem material.
    But waiving every argument of this sort, is the omission of Beall earlier to notify Martin Cockburn of the payment of the bill drawn on Thomas Cockburn, sufficient to avoid the contract?
    The essence of the contract, of the 1st of May, 1779, is a purchase of sterling money, to be paid for in the current money of this country, after the sterling money shall have been received. A bond is given for the bills, and thus there is mutual securitj' for the good faith of the parties. Upon the receipt of the thing purchased, the right to it was absolute in the purchaser, and the right to the consideration absolute in the seller. The money, on payment, or on any act which amounted to payment, was the property of Beall, and the resort of Cock-burn under the agreement was to Beall’s bond, for that to which the bond entitled him.
    The undertakings of the bond are,
    1. That Beall should, by the earliest conveyance, forward the bills.
    2. That in case of protest, Cockburn shall not be liable for damages.
    3. That Beall shall be answerable for the money received on the bills, at seven for one, with six per cent, interest thereon, from their date.
    4. That he will pay the consideration, in loan office certificates, so soon as it shall be ascertained, that the sterling money is received.
    I only mention that there is no stipulation for immediate information to Cock-burn, to show that it is the common case of a failure to pay, according to contract.
    It is impossible to view this contract, without perceiving that the right to the thing purchased is not dependent on the payment of the purchase money, but is complete on receipt of the thing, which receipt also gives the seller an unconditional right to the consideration.
    ^'Suppose the bills had been negotiated, and that Cockburn had received notice thereof in three months, but Beall had failed to pay the certificates, according to the condition of his bond; could Cock-burn have maintained an action on the case for the money received by Beall on the bills, as for money had and received for his use, or must he have brought suit on the bond?
    Suppose a deed conveying land, and in the same deed there are stipulations for the future payment of part of the consideration money, as is the case in a lease reserving rent without a clause of reentry; on failure of payment, is the original contract void, so that an ejectment may be maintained for the land, or can the injured party only resort to his contract for the relief there given him?
    If these cases be absolutely clear, then Cockburn, on Beall’s failure to pay, could only resort to his bond, and the original contract would have been unaffected, by the failure.
    If the contract became absolute on the receipt of the money, or on such a procedure as amounted to a receipt of it; if it retains its legal obligation notwithstanding any subsequent failure of Beall; on what principle will equity interpose?
    The principle of that court is.to decree a specific performance of contracts, not to avoid them. On this principle, when a court of equity decrees a sale of lands for the payment of the purchase money, the lands are never specifically restored, and thereby the contract annulled, but payment of the price is decreed, and thereby the contract is affirmed. In this case, equity, on the application of Mr. Cockburn for a specific performance, would decree a payment of the certificates themselves. 2 Ver. 394.
    It is also a principle that time is not material, so as to avoid a contract, even where there is an express stipulation concerning it. 2 Eq. Ca. Ab. p. 19, sec. 13; 2 Wil. 66. Where a man sells an estate, and there are incumbrances, if he can remove them afterwards, the contract must be ^complied with. So, too, if a bill be brought for a conveyance, though the purchase money be unpaid, a conveyance will be decreed on the payment of the purchase money with interest. Even in cases of forfeiture on account of a condition subsequent, the forfeiture will be relieved against for the sake of preserving, according to its real intent, the contract of the parties. 1 Eq. Ca. Ab. 107.
    The court, then, in this case, must establish the sale of sterling money, and secure the payment of the stipulated fine or compensation for any damages sustained by a failure to pay it in proper time. Had any injury been sustained by any unreasonable delays of Beall, Cockburn could have had this only remedy.
    But no injury has been sustained.
    The certificates actually paid, amount by the scale, according to Cockburn’s calculations, to ¿486 16 0
    If paid and dated on the day of the agreement or bond, they would only amount to 319 10 0
    Leaving an excess gained by Cockburn of ¿167 6 0
    If paid three months subsequent to the contract, and of that date, only worth 290 8 0
    Leaving an excess gained by Cockburn of ¿196 8 0
    If paid and dated four months after the bond, they would only amount to 266 5 0
    Leaving an excess gained by Cockburn of ¿220 11 0
    The only objection which can possibly be made to any part of the conduct of Beall is an expression in his letter to Mr. Mason, in which he says “he thinks he can get information of the fate of the bills in three or four months.”
    He might have had reason to think so. The depositions of Harper and others, captains of vessels, prove the voyage might possibly be made in that time; but the casualties of war prevented it. The contract was not founded on this ^letter. It is never mentioned, nor is Beall, in the contract restricted to any particular time. A limitation, with respect to time, from the nature of the transaction, could only have been inserted to guard against depreciation, and of this, it is obvious, Cockburn had no idea, as he wished to keep the certificates for the interest. The time, then, was indifferent to him; and, accordingly, he fixes none. Besides, this could not invalidate the original contract; it could only go to a breach of it.
    
      Mr. Cockburn has himself acknowledged the contract to be good, by every subsequent step he has taken.
    His letter to his brothers, desiring the bills to be protested, assigns the depreciation, and not any imposition on the part of Beall, as his motive for these instructions.
    His conversations with George Mason, and his subsequent letters to his brothers, do not hint at any imposition.
    His letter to Beall himself, after hearing every thing, states that he doubts not he ha.s a man of honour to deal with.
    His receiving the certificates, which could only have been prevented, according to his own showing, by his having known the delay of six months, supposed to have been permitted by Beall, is an acknowledgment of the fairness of the original contract.
    Indeed, the decree admits it. The chancellor does not arraign it.
    Having established the validity of the original contract, the argument ought to be at an end.
    When a contract is made, both parties are bound by it. Had it been disadvantageous to Beall, he could not have annulled it. This is not one of those contracts which are set aside in equity. There a contract is never set aside, unless void originallj', and one party can only be excused from the performance of his part, when the other is unable to perform his. If Beall has committed a breach, the remedy is in damages.
    2d. Has he committed a breach?
    *It is alleged that he has.
    1st. By selling the bills.
    I suppose it will hardly be contended, that an endorsement is a sale; but the endorsement must have been contemplated, as the bills are made payable to Beall or order. The bond speaks of a payment to Beall or order. Indeed, the bills must have been endorsed, as a payment to the bearer would not have been good.
    He did not sell the bills.
    His letter to Webb & Co. of the 26th of May, desires them not to sell the bills, but to remit them, as early as possible, for payment — to be careful in whose hands they are negotiated, &c.
    It could not be expected that such bills should be sold absolutely. Webb’s answer informs, that a gentleman oilers to take Cockburn’s drafts, and if they were hon-oured, to pay the amount. What, if not honoured? They were, of course, to be returned. Webb’s letter of the 22d November, says, they have sold the bills. If honoured, they are to be paid for. Still the sale is conditional.
    The special endorsements afford a strong presumption in favour of this opinion.
    The bills, when not paid, were returned to Webb & Co. ; and it is not alleged, that they returned any money, which is proof that they were not sold.
    But suppose they were sold.
    There is only a covenant on the part of Beall that Cockburn should pay no damages, in case of protest.
    Has he paid any, or been liable to any? Not on Thomas Cockburn’s bill, for the money has been paid. Not on James Cock-burn’s bill, for that is in Beall’s hands, and he cannot recover damages on the contract, unless the appellee, by having ordered the bills to be protested, has set the contract aside.
    Shall then a contract be set aside, by a court of chancery, because damages might possibly have been sustained? But it has been proved, not only that damages were not sustained, *but that the bills were not even sold. Here then one pillar of the decree falls to the ground.
    3dly. The third point relied on for the appellee is, that Beall, instead - of having the bills protested, allowed Cockburn six months credit on them.
    This fact is supported by Thomson’s and Ross’s depositions. This, if true, contradicts the former argument. If Beall was written to about allowing a credit of six months on the bills, they could not have been sold. But let us enquire into the fact. Thompson states what he heard Beall say, and Ross, what he thinks he heard him say. They are contradicted by Webb’s letters, by the whole tenor of the correspondence between Beall and his agent, and by the depositions of Thomas Cockburn and of Murray, both of whom prove, not only that Beall, but that even Webb, was not consulted on the delay.
    But it is objected, that a credit was given to Thomas Cockburn, and delay without protesting the bill was used with respect to that drawn on James.
    This having been done without the knowledge of Beall, no fraud can be imputable to him; but it is immaterial whether the delay was with or without his knowledge.
    But it is urged by Cockburn, that the bills not having been accepted in the terms on which they were drawn, are protested as to him.
    The reverse is true. As to him, they were accepted. Thomas Cockburn never refused to accept. He objects to the sight, and a conditional acceptance is agreed on. It is certain that an acceptance may be by parol, and that a drawee may take a conditional acceptance; but, by enlarging the credit, he discharges the drawer. The acceptance then of Thomas Cockburn was good as to the drawer. It was even better than a direct acceptance, for it discharged the drawer. 2 Strange, 792; 1 Wilson, 48. Here then a risk has been run by Mr. Beall, and the defendant might have recovered the certificates from him, if the bill had not been paid
    *James Cockburn’s is a still stronger case. The delay in negotiating the bill discharged the drawer, without even an acceptance.
    4th. The fourth point is the delay in the negotiation of the bills. They were sent off within two days after they were drawn. (See the letter from Beall to Webb of the 26th of May, 1779.) On the ISth of August, 1779, he writes, that he presumes payment has been received. On the 31st of the same month, he says he does not doubt but they have received payment, and begs them to hurry the information. On the 26th of December, he says, that he has grown very impatient to hear the fate of the bills.
    The first intelligence he receives is by a letter dated May 1780. When it was received, is uncertain — say July.
    During all this time, while Beall is making- every possible exertion, Cockburn rests quiet, except as to his letter to his brothers of the 15th of April, 1780.
    Paper money had now depreciated to sixty-five for one. Beall would not, for such a pittance, have endangered his contract. His bargain was gained. His reason for not immediately delivering the certificates might be, that he knew Cock-burn wanted them on interest. Besides, the property was then no object. The state was invaded — Beall obliged to pack up his papers, and this might cause some delay.
    So far on the merits of this case — -but they are terminated by Cockburn’s acceptance of the certificates.
    By his acceptance, he admits the fairness of the contract — admits that no specific time was fixed for its performance. He knew the time which had elapsed, and, voluntarily, with his eyes open, completes and closes the transaction by his acceptance. His only apology is a pretended ignorance of the credit which had been given.
    This admits of two answers:
    1st. It is not true.
    2dly. If true, it is immaterial.
    This acceptance binds him, and is an affirmance of the contract.
    *But he made declarations that he would not have received the money, had he known of the indulgence allowed with respect to the payment of the bills.
    He is again concluded by keeping the certificates several years. In this time Beall has run risks. The certificates might have fallen without his being able to save himself by disposing of them. He might have accumulated the sum greatly by vesting the interest, which was paid, in other certificates, which were greatly depreciated.
    But suppose a breach of the contract on the part of Beall. The plain remedy of the appellee is to obtain damages for that breach. What damages have been sustained? None. The certificates are as valuable as if they had been paid immediately after the contract.
    But if damages had been sustained, it is no more than the common case of a payment for land in paper money. The damages grew out of a general, but depreciated medium of circulation.
    On the whole case, the original contract was fair; and, therefore, is not to be set aside.
    The subsequent conduct of Beall is fair likewise; but, if not, the remedy of Cock-burn is in damages, and there can be no damages- given where none have been sustained.
    For damages, there can be no ground for the interference of a court of equity, as there is a plain written agreement, and a bond on which suits are maintainable, and complete redress afforded at law.
   Per Cur.

Affirm the decree.  