1862.

Scort

V.

that is to say on the 27th August, 1856, at Liverpool aforesaid, the plaintiffs caused the said bill of exPILKINGTON. change to be duly presented for acceptance to the defendants, and acceptance thereof by the defendants to be duly demanded; and that the defendants then and there failed and refused, and have hitherto failed and refused, to accept the said bill by writing their acceptance on the same, or in any other way, to the wrong and injury of the plaintiffs, and contrary to the said promise and undertaking of them, the said defendants, in their letter of credit aforesaid; by means whereof, the premium of exchange having meanwhile advanced, the plaintiffs have suffered loss and damage in the other and further sum of 4866 dollars, lawful money of the United States of America.

67

"3d. And the plaintiffs, as another cause of action against the defendants, further state that afterwards, on or about the 19th August, 1856, in the city of New York, the said letter of credit being in full force and the power thereby conferred having been in nowise withdrawn, the said Fleming & Alden, by virtue and in pursuance thereof, drew their certain other bill of exchange in three sets, numbered 1st, 2d and 3d, of that date, directed to the defendants at Liverpool aforesaid, and therein and thereby requested the defendants, sixty days after sight of either of said sets, the other two being unpaid, to pay in London, to the order of the aforesaid Messrs. Acker & Harris (then and there a mercantile firm in the city of New York) the sum of 10007. sterling, value received, and that the said Fleming & Alden then and there offered the said bill of exchange for sale to the payees therein named, upon the faith and credit of the said letter of credit then in possession of

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SCOTT

V.

the plaintiffs, and at and before that time, as plaintiffs are informed and believe, caused by the said Fleming & Alden to be shewn to and read by the said Acker & PILKINGTON. Harris, and the contents thereof to be communicated to them, as in the second cause of action in this complaint mentioned; and that the said Acker & Harris, by reason of the premises, and on the faith and credit of said letter of credit, as plaintiffs are informed and believe, then and there purchased and received the said last mentioned bill of exchange of and from the said Fleming & Alden, and paid therefor to the said Fleming & Alden the sum of 4822 dollars, or about that amount, in lawful money of the United States of America, which said sum would have been the proper value of said bill of exchange in New York, when duly accepted by the defendants according to their said promise and undertaking in that behalf in the said letter of credit contained.

"And the plaintiffs further say that afterwards, and before the payment of the said bill, and before any acceptance thereof or presentment of the same for acceptance to the defendants, and while the said letter of credit was in full force, and on the deposit with the plaintiffs as in the first cause of action in this complaint mentioned, namely, on or about 19th August, 1856, in the city of New York aforesaid, the said Acker & Harris endorsed the said last mentioned bill of exchange, and offered the same for sale to the plaintiffs; and thereupon the plaintiffs, relying upon the faith and credit of the said letter of credit, and having due notice that the said bill of exchange had been drawn in pursuance thereof, and by virtue of the power and authority thereby conferred, and that the same had been purchased by the

1862.

SCOTT

v.

PILKINGTON.

said Acker & Harris upon the faith and credit thereof as aforesaid, purchased and received the said bill of exchange of and from the said Acker & Harris; and, on the faith and credit of the said letter of credit, paid therefor to the said Acker & Harris the sum of 4822 dollars, lawful money of the United States of America, which said sum would have been the proper value of the said bill of exchange in New York when accepted by the defendants, according to their said promise and undertaking; by means whereof the plaintiffs became and were, and still are, the holders and owners of the said bill of exchange, and as such entitled to demand and have of and from the defendants the acceptance of the said defendants in writing thereon, according to their promise and undertaking in the letter of credit aforesaid.

"And the plaintiffs further say that afterwards, before payment of the sum of money in said bill expressed, that is to say, on 2d September 1856, at Liverpool aforesaid, the plaintiffs caused the said bill of exchange to be duly presented for acceptance to the defendants, and acceptance thereof by the defendants to be duly demanded; and that the defendants then and there failed and refused, and have hitherto failed and refused, to accept the said bill, by writing their acceptance on the same, or in any other way, to the wrong and injury of the plaintiffs, and contrary to the said promise and undertaking of them the said defendants in their letter of credit aforesaid; by means whereof, and of the rate. of premium having meanwhile advanced, the plaintiffs have suffered loss and damage in the other and further sum of 48661% dollars, lawful money of the United States of America.

"And the plaintiffs further say that, by reason of the said several grievances, they have been deprived of the use and benefit of the said several bills of exchange, and of the acceptances of defendants thereon, and unable to negociate the same, except upon their partnership credit; that the total value of the said bills of exchange, in the city of New York, if accepted by the defendants, as in duty bound, would have been 14,600 dollars, and that, by the aforesaid grievances and the consequent deterioration of the commercial value of the said bills of exchange, they have suffered loss and damage to the amount last mentioned, which amount the plaintiffs claim in this action, and demand judgment against the said defendants for the said sum of 14,600 dollars, with interest from the commencement of this action, besides costs.

"Martin & Smiths, plaintiffs' attorneys. City and county of New York, S. S.

"William B. Scott, one of the plaintiffs in the above entitled action, being duly sworn, says, that the foregoing complaint is true to his knowledge, except as to those matters which are therein stated on information and belief, and as to those matters he believes it to be true. "W. B. Scott. "Sworn to before me this 3rd November, 1856. "John Bissell, Commissioner of Deeds.

Supreme Court.

John Pilkington & Daniel Pilkington,

ats

William B. Scott, Robert H. Thorn and Richard

C. W. Moore.

"The above defendants, by Miller & Develin their attorneys, answer the complaint of the above plaintiffs,

1862.

SCOTT

V.

PILKINGTON.

1862.

SCOTT

V.

PILKINGTON.

and say, that they admit that the said plaintiffs were and are co-partners in business, and that the defendants were and are co-partners, as stated in said complaint, but aver that the said defendants were, at the times mentioned in the said complaint, and are, co-partners in Liverpool only, and not elsewhere.

"And these defendants, in answer to the first cause of action stated in said complaint, admit that, at or about the time mentioned in said first cause of action, they made and delivered to Fleming & Alden, named in said complaint the letter set out in said complaint. And these defendants, further answering said first cause of action on information and belief, admit that the said Fleming & Alden, on or about 22nd July, 1856, in the city of New York, drew their certain bill of exchange in sets, and that the same is correctly set forth and described in said first cause of action; but these defendants deny that the said Fleming & Alden, by virtue or in pursuance of the authority conferred by said letter, or while the same was in force, drew said bill of exchange; but, on the contrary, these defendants aver that previously to the drawing of said bill, and to the said 22nd July, 1856, these defendants had duly withdrawn, revoked, annulled, and determined any and every right, authority, power, or privilege of said Fleming & Alden given or conferred by said letter, and all right, authority, and power to draw the said bill of exchange, or any other bill of exchange, under or by virtue of said letter, or the making or delivery thereof to them, and had cancelled and put an end to the said letter, and every agreement and power therein contained.

"And the said defendants, further answering, say they