that the orator ought to be permitted to redeem. Cases of this kind will always depend very much upon the determination of the facts. In that particular, one case is not a rule for the determination of any other case (unless the two cases are alike in all particulars-which never occurs), and therefore need not be reported, so far as the facts are concerned.

The points of law here decided are, that when the orator contracted to sell out his equity of redemption to his mortgagee, he is, in this court, entitled to very favorable consideration, on account of the unequal relations in which the parties stood at the time. The one was the superior and the other the dependent. The one had power and resources; the other had neither, but was sore pressed by necessity. In addition to this, the defendant was clearly the mortgagee of the premises for such a sum, as it was not in the power of the orator readily to raise. The price was little more than two thirds the value of the premises. It was agreed, that the defendant should sell the premises, and, if they brought more than the price paid by the defendant, the plaintiff should have the surplus. Under these circumstances we think the contract must, in equity, still be considered a mortgage, with a power of sale in the mortgagee. It is well settled, that, in all transactions between the mortgagor and mortgagee, the conduct of the mortgagee will be watched very narrowly: 4 Kent's Com. 143, and note, and cases there cited. This is the language of all the cases, and of all the books, in regard to all purchases, made by trustees, of the interest of the cestui que trust. Such contracts are not positively disregarded in a court of equity; but they are viewed suspiciously and criticised with some degree of severity.

The only other ground, upon which the defendant claims to hold the estate free from the plaintiff's equity of redemption, is, that in pursuance of the power of sale, he caused the estate to be sold at auction and became himself the purchaser. Such sales have always, in the English chancery, and in this country, unless when the matter is controlled by statute, been held voidable, at the election of the mortgagor, or cestui que trust, unless he delay for an unreasonable time to make his election-in which case he will be held to have confirmed the sale by his acquiesThe cases are too numerous upon this point, and there is too little conflict in the decisions, to require an elaborate review of the subject. The state of New York, by statute, allows the mortgagee, in such cases, to become the purchaser, if he conduct the matter with perfect fairness. In that state, there

cence.

fore, the decisions upon this subject rest upon a somewhat different basis from the English cases. In the former the sale is prima facie good, and it is therefore incumbent upon the cestui que trust to impeach its fairness; but in the latter the sale is, always, either good, or bad, at the election of the cestui que trust -as in the case of a contract of sale between an infant and an adult. The authorities will be found sufficiently referred to and digested in Davoue v. Fanning, 2 Johns. Ch. 252, and in Mr. Sumner's note to Whichcote v. Lawrence, 3 Ves. 740. Bergen v. Bennett, 1 Cai. Cas. 1 [2 Am. Dec. 281], is somewhat of an elaborate case upon this point.

The decree of the chancellor is therefore reversed, and the cause remanded to the court of chancery to be there proceeded with.

DEED ABSOLUTE ON ITS FACE, ACCOMPANIED BY A Defeasance, constitutes a mortgage: See note to M. & M. Bank v. Bank of Penn., 42 Am. Dec. 246, and note to Perkins v. Dibble, 36 Id. 102, where the prior cases on this subject in this series are collected. But a conveyance with a verbal or parol defeasance only will be considered an absolute sale: King v. Kincey, Id. 40.

EQUITY OF REDEMPTION CAN NOT BE FORECLOSED by any form of words used in an instrument, where the real intention of the parties was to secure the payment of a debt, and not to extinguish it: Baxter v. Willey, 31 Am. Deo. 623.

FISHER V. BECKWITH.

[19 VERMONT, 31.]

BILL OF EXCHANGE NEED NOT BE ACTUALLY SHOWN when presented in order that the party on whom it is drawn may bind himself by an aoceptance of it.

BILL OF EXCHANGE MAY BE ACCEPTED BY PAROL. The contract of acceptance is not within the statute of frauds. It is rather the agreement to pay one's own debt than the debt of another.

CONTRACT OF ACCEPTANCE BETWEEN ACCEPTOR AND PAYEE can not be abro

gated by the acceptor paying the drawer of the bill all he owed him. THERE IS NO VARIANCE BETWEEN DECLARATION AND PROOF, where the former alleges a promise of defendant, consequent upon his acceptance of a bill to pay it according to its tenor, and the proof is that the acceptor said the bill was all right, and he would come to Burke in a few days and pay the bill.

ASSUMPSIT. Woodman drew his bill on defendant in favor of plaintiff. Plaintiff's agent saw defendant at Sutton, notified him of the bill, and defendant replied that he had seen Woodman and it was all right, and that he (the agent) might tell plaintiff he would be in Burke in a few days and would pay the bill, and

the agent so informed the plaintiff. Afterwards defendant paid Woodman the note he owed him and on account of which the bill was drawn. Trial by court. Judgment for plaintiff, and defendant excepted.

G. C. & E. A. Cahoon, for the plaintiff.

By Court, ROYCE, J. It is objected in behalf of the defendant, that there was not a due presentment of the order, either for acceptance or payment-nor any valid acceptance. The case does not show that the order was exhibited to the defendant, though he was informed by Denison, the plaintiff's agent, that he had it; and this was at Sutton, the defendant's place of residence. But an actual view, or precise description, of the order was not important to the defendant, under the circumstances. He had previously been apprised of all that was material by Woodman, the drawer; and his language to Denison fully implied that he neither wished to see the order, nor to be more particularly informed respecting it. Besides, there is no rule requiring that a bill of exchange must be actually shown to the drawee, in order to a valid and binding acceptance. A party may bind himself by an acceptance of a bill not yet drawn; as in the great case of Pillans et al. v. Van Mierop et al., 3 Burr. 1663. It is enough, if, when applied to for acceptance, he is enabled, by seeing the bill, or otherwise, to give an intelligent answer: 1 Har. Dig. 493, and cases there cited. In this instance, the question of a proper presentment for acceptance is involved in that regarding the validity of the acceptance itself; for if the bill, or order, was well accepted, it is idle to say it was not sufficiently presented for that purpose.

A distinct presentment for payment is usually necessary, in order to fix the liability of antecedent parties to the bill, as the drawer and indorsers. It is always so, for that purpose, when the time of payment is to be distinct, and subsequent to that of acceptance. The reason is, that the undertaking of such parties is conditional, requiring a demand of payment, when due by the terms of the bill, and timely notice back to them, if payment is refused. But the obligation of the acceptor, if he accepts without qualification, is as absolute as that of the maker of a note. And hence it is laid down as a rule, that "the acceptor of a bill, or maker of a note, is in general liable thereon, although the instrument has not been presented for payment; it being legally incumbent to the acceptor, or maker, to discover the holder, and

pay it without presentment:" Chit. Con. 728; Turner v. Hayden, 4 Barn. & Cress. 1. It is sufficient, however, for the present purpose, to notice, that the bill in question was made payable at sight, or on demand; so that a general acceptance would entitle the holder to immediate payment.

It is objected to the acceptance, that it was an undertaking to pay the debt of another, viz., the debt of Woodman to the plaintiff, and, being by parol and not in writing, was void under the statute of frauds-that it was given without considerationand that it was a conditional or partial acceptance, and therefore variant from the declaration. It is not disputed, that, at common law, a parol or oral acceptance of a bill may be sufficient and binding. Nor am I aware, that, in an ordinary case, it was ever held to be a contract within the statute of frauds. Most, if not all, the reported decisions, adjudging such an acceptance good, have been subsequent to the English statute of frauds: Ereskine v. Murray, 2 Stra. 817; Lumley v. Palmer, Id. 1000; Sproat v. Matthews, 1 T. R. 182, and many others. It is the common presumption, that a bill of exchange in the usual form is drawn on account of some indebtedness from the drawee to the drawer: Vere v. Lewis, 3 Id. 182; Simmonds v. Parminter, 1 Wils. 185; S. C., in error, sub nom. Parminter v. Symons, 2 Bro. C. P. 43; Chittenden v. Hurlburt, 2 Aik. 133. And in the present case that presumption is confirmed by evidence. It follows, that the defendant's acceptance was rather an undertaking to pay his own debt to Woodman, than Woodman's debt to the plaintiff; although such a payment of the former might operate as payment of the latter also. What has been said disposes of the objection of want of consideration. And if the plaintiff acquired a cause of action upon the acceptance, it could not be discharged, or affected, without his consent, by what afterwards took place between the defendant and Woodman.

It only remains to say a word upon the point of variance. The declaration alleges a promise of the defendant, consequent upon his acceptance of the bill, to pay it according to its tenor. It was drawn payable on demand, and the defendant said he would pay it in a few days. But we think it is not to be inferred, when all his declarations are considered, that he meant to qualify his immediate liability according to the terms of the order. He had already declared that "Woodman had told him all about it, and that it was right." These expressions import that the requirement to pay on demand was right, and that he assented

to it; whilst those which followed were indefinite as to time, and were apparently used to gain a short indulgence, rather than to postpone his legal liability.

Judgment of county court affirmed.

THE PRINCIPAL CASE IS CITED in Bank of Rutland v. Woodruff & Marsden, 34 Vt. 92, and Arnold v. Sprague, Id. 405, to the point that a parol acceptance of a bill of exchange is binding. See also, Vermont Marble Co. v. Mann, 36 Id. 700.

VERBAL PROMISE TO ACCEPT A BILL OF EXCHANGE when drawn, is not an acceptance: Kennedy v. Geddes, 33 Am. Dec. 289. See also, Von Phul v. Sloan, 38 Id. 207.

MILLS v. HYDE.

[19 VERMONT, 59.]

POSSESSION OF A NOTE BY ONE OF THREE joint promisors, upon which payments have been made, and which has been taken up and a new note for the balance due given by two of the promisors, furnishes no presumptive evidence that the amount paid upon the note was paid by the party in possession of it.

PAYMENT OF AN OUTLAWED NOTE BY ONE JOINT DEBTOR entitles him to contribution from the other.

CONTRIBUTION TO THE FULL AMOUNT IS RECOVERABLE from the solvent

joint contractors pro rata, and the party paying the debt may prove the insolvency of any one of the joint contractors, and the debt must fall equally upon the rest.

Pleas, general issue
Plaintiff, defend-

INDEBITATUS ASSUMPSIT for money paid. and statute of limitations. Trial by court. ant, and Moore executed a promissory note November 28, 1833, payable in sixty days. Several payments were made. In September, 1835, the note was taken up by plaintiff and defendant, and a new note for the balance due given, signed by two only. Plaintiff held possession of the note taken up. In January, 1843, plaintiff paid the note. Moore was insolvent. Plaintiff brings suit to recover one half of the amount paid in liquidation of the debt. The statute of limitations had run. The court held the defendant was liable for one half the amount paid on the last note, and interest. Exceptions by both parties.

Asahel Peck, for the defendant.

C. Adams, for the plaintiff.

By Court, HALL, J. It is claimed in behalf of the plaintiff, that his possession of the old notes of Moore, Mills, and Hyde, is presumptive evidence, in the absence of all other proof, of the

AM. DEC. VOL. XLVI-12