to him; though my own words might not show what supposition determined me to this promise, yet the circumstances would show it plainly enough to release me from any obligation, when I find afterwards that Sempronius is a candidate.

XVIII. As we may bind ourselves by a promise A man's agent which we make in our own person, so likewise we are may promise for obliged to stand to a promise which another person makes him.

for us, where we have given him either a general commission to act for us in all things, or a particular commission to act in this affair. In either case, by such a commission, where he keeps within the bounds of it, we have made his act our own.

Where we have given a man a power or commission to act for us, as our proxy, though no restriction or limitation of such commission may appear, yet it frequently happens that we give some private instructions to such proxy or agent in what manner we would have him act, and how far he may go. Suppose him then to act contrary to these private instructions, and to go farther than we allowed him; we shall be obliged to stand to the promise which he makes for us, notwithstanding our consent seems to be wanting. For that act of our will, whereby he was appointed our agent, which is the only act of our will that is or can be known by the party to whom the promise is made, is sufficient to make what such agent does for us be considered as our own act. The private instructions which we gave him, cannot affect any one to whom they are not known, and from whom we were determined to conceal them; they cannot, therefore, so affect the party to whom the promise is made, as to prevent his claim upon us; the consent which appears to him, must, in respect of him, be looked upon as our true and full consent. If it was otherwise, there would be such room for collusion between the promiser and his agent, that it would be in their power at any time to prevent any obligation from arising upon promises thus made.

However, though our limitations or secret instructions, in respect of the party to whom the promise is made, are considered as not in existence, because they neither do nor can appear to him, and consequently cannot invalidate his claim, which arises from our public consent or apparent act; yet they will produce their proper effect upon the person to whom they are known. Our agent knows them, and the effect which they produce upon him, is to make him answerable for any loss or damage that we may sustain by his having exceeded them; because by undertaking to act for us under these restrictions, he has at least tacitly obliged himself not to act otherwise.

XIX. When we have appointed an agent to promise Voluntary agent for us, the agent may happen to die before he has trans- does not oblige. acted the business, and some other person who knew that he was our agent and for what purpose, may possibly undertake to make the promise without our appointment, which he was to have made if he had lived long enough to do it; in this case no obligation arises upon us from the act of such person. For want of our appointment, that is, for want of our consent to what he has done, it cannot be looked upon as our own act. If, indeed, our promise was contained in a letter, and the bearer to whom we entrusted the letter dies, but after his death this

hand.

letter is delivered by some one else to the party to whom the promise is made, the promise then becomes binding upon acceptance. The first bearer of the letter was not our agent; the letter is to promise for us and is the instrument of our consent; and it is not at all material whether the instrument by which we designed to bind ourselves, comes to the hands of the party to whom we make the promise, by the hands of the first bearer to whom we entrusted it, or by the hands of any one else. What promises XX. Where a promise passes from the promiser to may and what may the other party through a third hand, we should consider not be recalled, whether this third person was appointed merely as a when they pass through a third messenger to notify the promise, or as an agent to make it. If he was only a messenger to notify the promise, and the promiser recalls it before acceptance, but without acquainting his messenger that he has done so, such a revocation will have its effect; and though the messenger should afterwards notify the promise, and acceptance should be made upon such notification, the promiser is not obliged to make the promise good. The obligation of such a promise depends upon the will of the promiser, and not upon the will of his messenger; he had not bound himself to the messenger, and much less to any one else, to continue in the same mind or to abide by any act which his messenger should do. This is the decision of Grotius upon the case. But he should have added that the promiser, though he might have no opportunity of informing his messenger that he had recalled his promise, should take care to acquaint some others with his having done so; because his revocation, if it did not appear, can be of no more account than if it did not exist; and consequently without this precaution he could not in justice claim to be released.

But, when the person through whose hands the promise passes, was appointed to make it as the promiser's agent, then notwithstanding the promiser should recall it before it is made, yet unless his agent is made acquainted with what he has done, and for want of such notice makes the promise, it will be binding. The agent's appointment continues till he knows himself to be discharged, and the promiser by that appointment had transferred his power of acting in the case from himself to his agent.

Grotius, when he is taking notice of this distinction, applies it in passing to the case of gifts. Where I have made an actual donation, and have ordered a messenger to notify this to the person to whom I so alienate my property, in order for his acceptance; if I die before this notice is actually given, and he upon receiving the notice accepts; though this is done after my death, the donation is valid. It was complete on my part before my death; the messenger was not to make the donation for me, but to notify that I had made it; and as to the other parties acceptance by which the transfer is completed, this may as well be done after my death as before it; since I am no way concerned in this act of acceptance, nor is any farther concurrence of mine necessary towards completing the transfer than what I had given already. We should, however, observe, that such a donation can only take place as a will does, where no acceptance is made before the testator's death; it must be some positive law which, by taking the thing given into its custody, prevents it from becoming the property of the first occupant, between the giver's death and the other parties acceptance. But if,

instead of making the donation myself, and ordering a messenger to notify what I have done, I appoint an agent to make it for me; then if I die before it is made, the donation will be void; though my agent, not knowing of my death, should make it afterwards. The donation in this case was not actually made before my death, but was only ordered to be made; and after my death, as I cannot act for myself, so neither can I act by any other person; the appointment of any other person to be my agent, or to do my acts for me, ceases with my life, as I am then no longer capable of doing any act.

But what is here said, relates only to actual donations, and not to promises of giving. Whatever may be the character of the person, through whose hands such promise is conveyed, whether he is a messenger sent by me, or an agent commissioned to act for me; if I die before acceptance, no subsequent acceptance can affect my heirs; since the obligation of my promise, even after it is accepted, is only personal, and consequently must cease at my death. A promise does not alienate my property in the thing promised, or give the party to whom I make the promise any claim upon the thing; it only alienates a part of my liberty, and gives him a claim upon my person to do such acts as will alienate the thing hereafter.

Effects of acceptance by another, either with or

XXI. *As we bind ourselves by promises, which another man who is appointed to act for us makes in our name, so likewise we may accept promises by our agent, without commisand may acquire a right in virtue of a promise so accept- sion.

ed. But where a person who happens to be present when a promise is made, accepts for us, without having our commission for so doing, some doubt may be raised concerning the effect of such an acceptance. And it will be necessary in determining any doubts upon this head, to inquire whether the promise is made directly to the person who is present, though it is made for our benefit, or whether the words of it show that it was made to us who are absent, and that the person who is present at the time of making it is only appealed to as a witness of what has passed. Thus a promise relating to Titius, who is absent, may be made to Caius, who is present, under either of these forms.-I promise you, Caius, that I will give such a thing or do such a service to Titius,-or, I promise Titius to give him such a thing, or to do him such a service, and do you, Caius, take notice that I have promised it.

In the former of these cases, as the promise is made directly to Caius, though it is for the benefit of Titius, yet the acceptance of Caius binds the promiser; because the liberty which he alienates by it, is alienated to Caius, and it is he who acquires a right by this act over the promiser's person. It is, therefore, in his power to release the promiser at any time before Titius has accepted it. But after his acceptance, it is out of the power of Caius to release such promiser; because by his proposal of the affair to Titius, and by the acceptance which follows upon it, his right over the person of the promiser is conveyed to Titius. Suppose Titius should refuse the favour, this refusal releases the promiser, and he is no longer under the same obligation to Caius; because, as the benefit arising from the promise was a benefit to be received by Titius, upon his refusal to receive such benefit, the matter of the promise becomes impossible.

* Grot. Lib. II. Cap. XI. § XVIII.

In the other case, if the promiser says I engage to Titius, who is absent, that I will give him such a thing, or do him such a service, and do you, Caius, take notice that I have so engaged; then upon supposition, that Caius has a general commission to act for Titius, or a special commission to act for this purpose, his acceptance will make the promise binding upon the promiser. But if he has no such commission, and does not accept, then the promise will, notwithstanding his attestation of it, be in the power of the promiser, who may recall it if he pleases, at any time before it is accepted by Titius. Only as he had published the promise, it will be necessary for him to recall it publicly; otherwise, if the promise appears, but the revocation does not appear, the promise will stand good and the revocation will be nothing, for a reason which has been frequently mentioned and need not be repeated. Or lastly, suppose that Caius, who is so called upon to attest a promise made to Titius, should, though he has no commission to act for him, accept the promise; then if the promiser does not agree that he should accept it, his acceptance can have no effect; he is not appointed agent for Titius, and the promiser will not transact with him as if he had that character. But if the promiser consents that he should accept, then, notwithstanding he has no such appointment, this case will be reduced to the same state with the former case; the promise upon the acceptance of Caius will be binding till it appears whether Titius will accept or refuse the interest which he has in it; for it is the same thing whether the promiser engages to Caius for the benefit of Titius, or engages to Titius and allows Caius so far to stand in the place of Titius as to accept for him.

mise for him.

A man's heirs can- XXII. If a promise is made to a man and he dies benot accept a pro- fore acceptance, the acceptance of his heirs does not bind the promiser. However the promiser might propose to alienate a right over his person to the deceased, it does not follow that he is willing to alienate the same right over his person to the heirs of the deceased. Nay, we may go one step farther; if a promise is made to a man and is accepted by him, but is not performed before his death, his heirs have no claim to performance, unless they were expressly included in it. If, indeed, it had been made to him and his heirs, his acceptance would be binding upon the promiser for their interest as well as for his own. But if they were not included in it, if it was made to him without mentioning them, though he had accepted, yet the right acquired by such acceptance is merely personal, and dies with him. This is too plain to be questioned in promises of doing. I have promised a man who is candidate for a certain office, that I will give him my vote; he accepts my promise, but dies before the day of election, and his son offers himself as a candidate for the same office. No one would imagine that my promise made to the father binds me to vote for the son.

Nor can any reason be given why it should be otherwise in promises of giving, why if I promise to give a man a sum of money and he accepts the favour of my promise, but dies before performance, his heir, unless he was expressly included in the promise, should have any claim to the money. If, indeed, the money, instead of being promised, had been actually given, the benefit of the promise would have descended to the heir; but this is no reason why, if the money had not been given, he

should have the same claim upon me that the deceased would have had. I intended to give to the deceased; it does not follow from thence, that I intended to give to his heirs; the benefit of my promise, if it had been performed, would indeed have descended to them; but this is accidental, and does not appear to have been in my intention, as they were not expressly mentioned in the promise. If I had actually performed my promise by giving the money, I could not upon his decease have demanded it again of the heirs; because by giving it, I had parted with all my claim to it, and the deceased had, before his death, acquired a right not merely over my person by a promise, but in the thing itself by a transfer of it. He might, therefore, have disposed of it by will, if he had pleased, or if he does not do this it will descend to his heirs in intestate

succession.

Promissory notes for money lent do not come under this description. The form of such notes-I promise to pay; especially if I add, for value received, shows them to be more than mere promises; it shows that he who gives such notes acknowledges that something was due to the person to whom they are given; and consequently instead of being gratuitous promises, they are evidences of a debt.