#### Nathan Peck *et al. versus*Peter Cochran

The agenl of the holder of a bill drawn at sight, presented the same for acceptance and payment, but the drawee said he had not funds, and upon being urged pay the bill, refused to pay then, but said he would answer it in about sixty days j whereupon the agent said he should return it to the holder, who would send it back to the drawer ; the bill however was not sent back, and in about four months u<e agent again presented it for payment, which the drawee refused. *Held,*that there was no acceptance.

*Held*also, that evidence to show that the drawee had funds at the time of the first presentment, was irrevelant and inadmissible. *

Assumpsit on an- order, dated April 1, 1821, payable at sight, drawn by the deputy postipaster general of the United States, at Washington, upon the defendant, who was postmaster at Watertown, in this State, in favor of the plaintiffs.

At the trial, before *Parker*C. J., it appeared that the plaintiffs sent the bill for collection to S. Burt, who delivered it to J. Sawyer, with directions to call on the defendant and demand payment. Sawyer testified that in the early part of May he presented the bill for acceptance and payment; that the defendant said he did not think the money was due to tire government ; that the witness pressed him to pay the bill; that the defendant refused to pay then, but said he would answer it at the commencement of the next quarter, which would be in about sixty days. The witness did not agree to wait, but told the defendant he would return the bill to Burt, who would send it to Washington. The defendant was irritated, and intimated that he did not care if it was sent to Washington. The witness afterwards, in September, called again on the defendant, who again refused to pay, saying that if the witness had called at the commencement of the quarter next after the time of the first presentment, he should have paid it, but that he had accepted other drafts presented since, and he would not pay it.

The plaintiffs offered to show that the defendant, at the time of the first presentment, was indebted to the United States m a larger sum than the amount of the bill; but the evidence was deemed irrelevant.

A nonsuit was entered by consent; which was to be taken *37off, if the above testimony was sufficient in law to authorize a verdict in favor of the plaintiffs.

*Oct. 2d.*

*Oct. 3d.*

*J. Davis*and *Allen,*for the plaintiffs,

cited *Grant*v. *Shaw,*16 Mass. R. 341 ; Bayley on Bills, 121; [Phillips & Sewall’s 2d ed. 174 ;] *Parker*v. Leigh, 2 Stark. Rep. 228 ; *Adams*v. Gregg, ibid. 531 ; *Dingwall*v. Dunster, 1 Doug. 247 ; *Anderson*v. Cleveland, 13 East, 430, note.

*Newton, contra,*

cited *Sproat*v. *Matthews,*1 T. R. 182; *Bentinck*v. *Dorrien,*6 East, 199.

Per *Curiam.*

It appears clearly that there was no contract between the parties. The offer to pay at a future day would have been an acceptance, had the plaintiffs’ agent acceded to it; but he did not, and said he should return the bill.1 The circumstance of the defendant’s having funds at the time of the presentment is immaterial and the evidence of it was rightly rejected.

*Nonsuit made absolute.*

1

 The assent of both parties is necessary to constitute an agreement. *Bruce v. Pearson,*3 Johns. R. 534. See *Innis v. Roane, 4 Call,*379; *Tucker*v. *Wood,*12 Johns. R. 190. If one party does not accede to a promise as made, the other party is not bound by it. *Tuttle*v. *Love,*7 Johns. R. 470; *Eliason*v. *Henshaw,*4 Wheaton, 425; *Bruce*v. *Pearson,*3 Johns. R. 534; *Hazard v. New Engl. Mar. Ins. Co. 1*Sumner, 218. See *Wood*v. *Edwards,*19 Johns. R. 205; *Mactier v. Frith,*6 Wendell, 103; *Coming*v. *Colt,*5 Wendell, 253 ; *Peru*v. *Turner,*1 Fairfield, 185.

Whether there has been an acceptance of an offer or not, is a question for the jury. *Corning v. Colt,*5 Wendell, 253.