
    Murray & Co. v. Carret & Co.
    [Friday, May 6th, 1803.]
    Assumpsit — Lost Bill of Exchange. — If A. purchase of B. a foreign bill of exchange, which is afterwards lost before it is presented, and B. refuses to give a second bill; A. may bring indebitatus assumpsit for the purchase money..
    Witness — Agent—Competency.—If one, as agent for another, purchase a bill of exchange, and endorse it to his principal, the latter may call the agent as a witness, if he first prove that he was an agent merely, or give him a release.
    Cafret, Kosters & Co. brought indebitatus assumpsit against Murray & Co. and declared for money had and received to the plaintiffs’ use. Pleas, non assumpsit, and the act of limitations. Replication, that the plaintiffs were out of the State. Issue.
    Upon the trial of the cause, the defendants filed a bill of exceptions, stating, that a witness proved that William Wilson put into his hands the original third bill of exchange, of which that produced is a copy, and requested him to carry it to Murray, inform him that the first and second set had miscarried in their passage to Europe; that Wilson was apprehensive that the said third might meet- with the like fate; and to re-' quest that he would draw a fourth of the same tenor and date; which, if he refused to do, the witness was to get an acknowledgment, that Murray & Co. had drawn the bill. That Murray refused to draw a fourth set; but in the course of the conversation, admitted the bill then exhibited to have been drawn by Murray & Co. That the witness made the copy exhibited, at the request of Wilson, by which it appears that the bill was payable to William Wilson, or order, and by him endorsed to the plaintiffs for value in account with D. J. Hoissard & Co. That the plaintiffs produced the said *William Wilson to prove that he had paid Murray & Co. the full value of the bill, and that he made the payment and received the bill as agent for the plaintiffs. That the defendants objected to his competency; but, upon his swearing that he was agent as aforesaid, and had no interest in the suit, the Court over-ruled the objection, and allowed him to be sworn in chief. That he deposed that the original bill had been lost before it reached the drawee; that as agent for the plaintiffs he applied to Murray & Co. for another bill of the same tenor and date, offering to indemnify them against the former bills, but thej' refused to give it. Whereupon, he obtained from the other witness, a copy of the said bill. That the defendants prayed the opinion of the Court, whether the plaintiffs were not bound to prove that the original bill, or a copy thereof, was presented to the drawee? But, the Court gave it as their opinion, that under the circumstances, it was not necessary to prove that the original, or a copy, was so presented. Verdict and judgment for the plaintiffs; and the defendants appealed to this Court.
    Wickham, for the appellant.
    Wilson was an interested witness, and his voir dire could not decide the contrary, for it appeared upon the face of the bill, which was drawn in his favor, although he says it was as agent for Carret, Kosters & Co. to whom he was liable by his endorsement ; and he would have been particularly so to future endorsees. It is even true that proof from any other quarter, that he was not interested, would not have been admissible, as he appears to be so on the bill; for, parol evidence cannot contradict that which is written. Wilson was the legal owner, and might and did assign it. Indebitatus assumpsit was not maintainable. It should have been a declaration on the custom, or an action of debt under the act of Assembly. There is no privity of contract, except between drawer and payee, endorser and endorsee, &c. Wood v. Euttrel, 1 *CalI, 232. No action lay at common law; for, there was no .engagement, either express or implied, to return the money. There is no evidence that the bill was lost; and, if there was, there is no instance at common law of a suit upon a lost bill. It ought to have been a suit in Chancery.
    Eee, contra.
    .Murray & Co. were bound to pay some body; and, therefore, they are not injured by the present judgment. But Wilson was a competent witness, for he was merely an agent, and, if rejected, various transactions between men cannot be proved. Endorsers have been frequently admitted to prove that a bill was given upon an illegal consideration, Jordaine v. Eashbrook, 7 T. R. 601; which is precisely the same case with the present: for, there, no other witness could be had but the endorser, and that is the case here. The plaintiffs could not have sued Wilson, for the bills never reached them; and, therefore, they could not have founded an action on them. The parol did not go to contradict, but merely to explain, the written evidence. It went to shew that the property was in another person, and not in the witness. 1 Black. 294; 1 Wash. 14. With regard to the privity, it is a rule, that wherever debt lies, indebitatus as-sumpsit will lie also; and, therefore, as the act of Assembly gives debt, it necessarily establishes the privity. [Eenner v. Meares,] 2 W. Black. 1269. The action was for the money advanced, and not upon the bills, which rendered it unnecessary to shew that they were lost. It was not necessary to resort to - a Court of Equity; for, no discovery was wanting: and, this being an equitable action, complete justice could be done.
    
      Wickham, in reply.
    The case of Jordaine v. Uashbrook, 7 T. R. 601, differs from this; for, in that case, the evidence of the witness went to destroy the bill, but here it goes to support it: in that case, therefore, the witness swore against his own interest; but here, in favor of it: *E'or, if the bill was paid, Wilson cannot be sued, whereas in the other case the endorser was still liable.
    Cur. adv. vult.
    
      
       Witness — Competency — Interest — Release. — A release removes the incompetency of a witness on tbe score of interest. Mandeville v. Perry, 6 Call 78, 84, citing the principal case. See also, Piercy v. Hedrick, 2 W. Va. 458, 98 Am. Dec. 774.
      Appellate Practice — Omission to Enter Order — Correction. — In Emory v. Erskine, 7 Leigh 269, the principal case is said to be authority for the proposition that, where an order is made by the supreme court, but its entry is omitted by inadvertence of the court or misprision of. the clerk, such omission may be corrected at a subsequent term. See footnote to Thornton v. Corbin, 3 Call 221.
    
   I/5TONS, Judge,

delivered the resolution of the Court, as follows:

The first and principal question in this case is, whether an action of indebitatus assumpsit, for money had and received, will lie, by the purchaser, for the money paid to the drawer of a bill of exchange, when the bill is lost before it is presented to the drawee, and the drawer refuses, either to refund, or renew, the bill to the purchaser?

The contract, on the purchase of a bill of exchange drawn on a foreign country, is, for money in the foreign country, and not merely for the paper bill, or draft itself; which is only evidence of the contract, with a power to demand 1 and receive the money. Therefore, if the bill be lost, the drawer cannot be entitled to retain the purchase money here, and have the foreign money too; or, which comes to the same thing, prevent the purchaser from receiving it by refusing to enable him to do so. Por, the purchaser has a right to his purchase money, with interest, if he cannot get the foreign money, unless in case of the insolvency of the drawee, the drawer has sustained a loss by the negligence of the purchaser in not presenting the bill, or giving notice of the protest, in due time.

If, then, the purchaser has a right to receive the foreign money, the drawer is not injured by drawing twenty bills of the same tenor and date; but he ought, in justice to do it, if it be necessary, in order to enable the purchaser to receive the money. Therefore, if he refuses to do so, the purchaser *must have a remedy for the injury, and the action brought in the present case seems to be the proper one, as it lets in all the circumstances, and produces substantial justice in the end.

The next enquiry, then, is as to the propriety of the evidence.

The first thing necessary on the trial of a cause of contract is, to prove a contract; and, if a written one, the original should be produced, unless lost; and, then a copy which is the next best evidence, if it can be had. In the present case a copy was produced; but, to entitle the plaintiff: to use it, some account of the loss of the original was necessary to be given by him, and that he was a purchaser of the bill, so as to establish a privity. This he attempted to do by calling Wilson, to whom the bill was made payable, and who endorsed it to the appellees for whom he had purchased it as a friend, or agent, without having any interest in it himself. The witness was objected to, however, on the ground of interest, as he had endorsed the bill, and no proof was offered to shew his agency, except his own oath. But a factor, or agent on mere commission, and not further interested, may be a witness for either party. The King v. Bray, Cas. Temp. Hardw. 358; Dixon v. Cooper, 3 Wils. 40. In these cases, however, the factors only executed their powers in making the contract, without doing any act which might eventually subject them to loss, or to the action of either party; and, therefore', did not appear prima facie, interested in the event of the suits. But, here, the witness prima facie did appear, interested, by his having endorsed the bill, which made him liable for it to any endorsee, or holder, not having notice of the agency. Therefore, to render him competent, it ought to have been shewn, by other testimony than his own oath, that he was an agent, or he should have been released by the appellees: It follows, that the Court erred in admitting him, ^without such proof of agency, or a release. The judgment is, therefore, to be reversed, and the following judgment entered.

The Court is of opinion, that William Wilson, who purchased and endorsed the bill of exchange, in the proceedings mentioned, ought not to have been admitted as a witness, until it was proved by other evidence than his own oath, that he was au-thorised by the appellees to purchase the said bill for, and on account of the said ap-pellees, and that he transacted the business as their agent only; or until thé appellees had released him from all actions and suits on account of his endorsing the said bill to them; and, that the said judgment is erroneous; therefore, it is considered, that it be reversed with costs; that the verdict be set aside, and a new trial had in the cause; on which the said William Wilson is not to be allowed to give evidence, unless it is first proved that he was authorised to purchase the said bill, and to transact the business in the manner above-mentioned, or is released by the appellees from all actions and suits on account of his endorsing the said bill to them.  