
    Manuel Zerrano & another vs. John D. Wilson & others.
    A bill of exchange, drawn by the master of a vessel on her owners, for supplies furnished in a foreign port, if not accepted or paid, but protested for non-acceptance and for non-payment, and brought into court and filed, is no bar to an action against the owners for the supplies so furnished.
    This was an action of assumpsit against the owners of the bark Harriet, to recover the amount of a bill for supplies furnished by the plaintiffs at Talcahuano, in Chili, to that vessel, while prosecuting a whaling voyage, under the command of James Durfee, one of the owners of the vessel. The defendants pleaded the general issue.
    At the trial, before Dewey, J., the ownership of the vessel was admitted. The plaintiffs, to prove then case, introduced the deposition of G. H. Whiting, their clerk, annexed to which was a bill of particulars of the supplies furnished. At the foot of this bill was the following: “ Received bills of exchange in triplicate, at ten days’ sight, upon John D. Wilson, Esq., in settlement of this bill. Talcahuano, January 14th, 1848. For Zerrano & Co. G. H. Whiting.” The defendants thereupon contended, that the evidence was insufficient to sustain a verdict for the plaintiffs, inasmuch as it appeared that the account had been paid by the bill of exchange; and that as this appeared by the plaintiff’s own testimony, it was not necessary to be specified in defence. They also contended, that a copy of the bill of exchange and a notarial protest, which were annexed to the deposition, were incompetent evidence. The plaintiffs thereupon produced the original bill of exchange, with the protests for non-acceptance and non-payment, and caused them to be filed by the clerk with the papers in the case. The bill of exchange, which bore date at Talcahuano, January 14th, 1848, purported to be drawn on John D. Wilson, by “ James Durfee, master of bark Harriet,” “ for necessary supplies furnished at this port for the bark Harriet under my command,” and was payable to the plaintiffs or order.
    The judge instructed the jury, that upon this evidence it Was competent for them to find a verdict for the plaintiffs, and they returned a verdict for the amount of the bill of particulars and interest. If these instructions were erroneous, the verdict is to be set aside, and a new trial granted; otherwise, judgment is to be entered on the verdict.
    
      J. H. Clifford, for the plaintiffs,
    cited Chit. Bills, (10th Amer, ed.) 174,177, and cases cited in notes; Butts v. Dean, 2 Met. 76; Burden v. Halton, 4 Bing. 454; Hadwen v. Mendisabal, 2 Car. & P. 20 ; Alcock v. Hopkins, 6 Cush. 484.
    
      T. G. Coffin, for the defendants.
    The account produced by the plaintiff was receipted, and had been paid by a bill of exchange, and the plaintiff, therefore, cannot recover on the account. In this commonwealth, a negotiable note given by one of the parties liable is a discharge of the simple debt'; Thacher v. Dinsmore, 5 Mass. 299; unless it be shown that the note was taken as collateral security. French v. Price, 24 Pick. 13. And the same rule must apply to a bill of exchange.
   Fletcher, J.

The defence set up, that the account upon which the action is founded had been paid by the bill of exchange, cannot be maintained. The bill of exchange had not been accepted nor paid, but was protested for non-acceptance and non-payment, and was produced by the plaintiffs at the trial, and put on file with the papers, so that it was not outstanding, and would therefore furnish no defence to a recovery on the original account. Alcock v. Hopkins, 6 Cush. 484.

Judgment on the verdict, for the plaintiffs.  