
    George W. Prescott vs. Sears Hubbell.
    Where the defendant, who was a sea captain, bought goods, and was to have given his note with A. as security for the same, but went to sea wbhont giving his note, and the agent of the vendor received the note of A. alone, “ which, when paid, was >o be in satisfaction of tbs defendant’s debt,” the Court Held, that it was not a discharge of the ¿"fend-ait.
    
      "Where several witnesses swore that it was a custom when the vendor ' of goods received a note of the consignee without the endorsement of the purchaser, that the purchaser became discharged, and the maker of the note only liable ; the Court 'Held, that it was a custom so unreasonable, that it could never supercede, the law to the contrary.
    JL HIS was an action of assumpsit, for goods sold and delivered. .. • '
    The sale and delivefy to the defendant were proved.— He was to have given his own note, endorsed by Bows Bascóme, in payment. When, howe.ver,-the agent of plaintiff called for this note, he found that defendant had sailed. Botas. £5? Bascóme then off. red their note, which was accepted by the. agent. The plaintiff had not been consulted. For this note, the agent gave a receipt, in which.'he stated that when the note was paid, it was to be in satisfaction of the debt due by defendant.
    The defendant was captain of a vessel, and -Bottrs £s? Bascóme were his consignees. He went to sea shortly after the purchase of the goods. The note taken hy the agent of the plaintiff was put into bank for collection, dishonored and remained unpaid.
    The defendant relied upon an existing usage to exempt him from personal responsibility. He contended that where the vendor of goods received a note of the consignee, without the endorsement of the purchaser, the purchaser became discharged, and the maker of the note only liable.
    That there did exist an usage, of this sort, was made to appear by several witnesses.
    The case was tried before Mr. Justice Richardson,--
    Term, 182-, for Charleston district, who charged in-favor of the plaintiff’s right of recovery ; and the jury found accordingly.
    This was a motion for a new trial:
    1st. Because "the charge of his honor was incorrect in the following particulars :
    1 st. That if it was not the ori ginal contract of the plaintiff to take notes of Bouts & Bascóme in payment of the goods,; that the defendant was not discharged.
    2d. That'where one contracts a debt, he is not discharged by giving the note of another.
    3d. That the usage proved by many respectable merchants, viz : That when goods are purchased, or dealings bad with captains of vessels, and the notes of their consignees are taken without their endorsation, the makers of the notes are only regarded as liable, and the persons originally liable are discharged, was only in relation to a case in which the original agreement was, that the notes should ■be received in payment.
    _ 4th. That the plaintiff was not guilty of such laches as to discharge the defendant in not attempting to recovet payment of the note from Bourn Bascóme; arid that.. sufficient evidence of their failure to pay it was adduced, and that the plaintiff was'entided to recover.
   Mr. Justice Gantt

delivered the opinion of the Court,

But for the usage attempted to be set up in this case, to defeat the plaintiff’s right of recovery, there could be no question but thqt he would have been entitled, upon established and well recognized principles of law, every day enforced, to compel a performance of the contract which the defendant had entered into.

Is there any thing in the alleged custom calculated te make this case an exception.?

It is not denied but that the dealing was with the defendant. He bought and received the goods. The plaintiff sent for his money. The debtor had gone to sea. The note of another was taken by the plaintiff’s agent. Now, would it be reasonable that the plaintiff should, from this isolated circumstance, unaccompanied with aiiy satisfactory proof, why or wherefore it was done, be debarred the right of recovering the debt from the true and bona fide debtor? A custom so unreasonable can never supersede law. The presiding Judge was therefore perfectly correct in saying, that the plaintiff was not confined alone to '.he security which tin noti furnished; unless indeed it 1 .id men the understanding and agreement oi th. parties to the original contract. i'he terms of the contract, in such a case, would become the law by which it was to be governed, but no such understanding or agreement was proved ; nór can it be inferred in any manner from the testimony that this was their intention. The note can onh bo considered in the light of a collateral security ; not in the; •slightest degree weakening the plaintiff’s right to look to the defendant himself. .

The defendant has no right to complain; for it does not appear that he had any funds at the time in the hands of Bours & Bascome; or, if he had, that the plaintiff was to look to them exclusively ior the amount of his debt. And it would be strange indeed if the.mere ceremony of an officious, unauthorized act on the part of Bours & Bascome, in giving their note, which 'they have taken care never to pay, shotild preclude the plaintiff from his just and legal remedy against the defendant.

'I'he Court are unanimous in their opinion, that the verdict should remain, and that the defendant take nothing by iiir. motion. , -•

Justicso Cckockt Noit, and Huger* concurred.  