
    Clarke versus Russel.
    IN Error from the Circuit Court, for the Diftrhft of Rhode-If and. Ón the return of the Record, it appeared that a declaration, containing the following Count, had been filed in an a<Sion brought by “ Nathaniel Rujfel of Charlefon, in the Diftridi of South-Carolina, merchant and citizen of the State of South-Carolina, againft John Innes Gldrke of Providence-, in the County of Providence and. Diftriit of Rhode-If and, .merchant and citizen of the-State of Rhode- Ifand, and fur-viving partner of the company of Jofeph Nightingale, now deCea'fed, and the faid John Innes Clarke, heretofore doing bu-finefs under the firm of Clarke and Nightingale
    
    lit Cthint. “ That the faid John Innes Clarke and Jofeph K 'Nightingale,.then in full life, on the 10th day of.March 1796, “ at the DiftriiS of Rhode-If and, in confideration that the Plaintiff would at the (pedal .inftance arid requeft of the M faid .Jofeph and John Innes, indorfe feven feveral fetts of “ bills of Exchange, of the daté, tenor, and defcription as-fet. ‘c forth in the annexed fchedule, drawn by a certain Jonathan “ Rujfel, who was agent and partner in that particular of « the company of Robert Murray and company, of New- “ York, in' the DiftriiS of New-York, on themfelves affirmed, ■ “ and to the Plaintiff faithfully promifed, that if the faid bills “ íhóuld not be paid by the.perfon on whom the f^me were drawn, and. the Plaintiff, in ctmfequencé of fuch endorfe- “ ment fhould be obliged to pay the fame bills, with damages, .w cofts, and intereft thereon, they the faid Jofeph and Johrl “ Innes would well and truly pay to the Plaintiff the amount M of the faid bills, damages, and- cofts, and intereft, if the Draw- “ er of faid bills did not pay the fame to the faid Plaintiff “■ And the faid Plaintiff in fadt faith that in confideration of, “ and truffing to, the faid affumption and promife,hedid indorfo “ the faid bills : and the fajd Plaintiff further in fadt faith that the.perfon, on whom the faid bills were drawn, did not ac- “ cept,'Or pay the faid bills, but that the faid bills were, in due “ form of'law, protefted for non-payment, of which non-pay-. ⅞ ment and proteft, notice was given in due form of law to the “ drawer thereof, and alfo to the Plaintiff, to wit, on the 13:!* tc day.of September, J796, at faid Diftridt of Rhode-Ifand,by “ reafon whereof, in confequence of faid indorfement, the “ -Plaintiff was obliged to pay the faid bill', with damage’s, cofts tc and intereft thereon, amounting to ,£.474.4., 13, 1.. flerling <c money of'Great Britain* equal in value to 2,0,338 dollars u and'52 cents, and adtually did pay the fum of money laft 4C mentioned, in difcharge of the faid bills, before the com- “ mencement of this fuit, to wit, on the laid 1.3th day of Sep-*l terrber, 1796, at'the Driftrift of Rhode-IJlgnd, aforefaid, of ‘c which the drawer of- the faid bills, on the day, and year, and “ at the Diftndt laft aforefaid had notice, and the fafrd, drawer <c was then,. and there requefted by the Plaintiff to pav to <c him the fum of money laft aforefaid', which he, the (aid draw-<c er, refufed tó do, of all which the faid Jofeph and John Innes, .<c afterwards,' to wit, on the day and year laft aforefaid, at the “ Diftrict aforefaid, bad notice, Nevertheless, &c.”
    
    The Defendant pleaded‘'«i« affumfft.; and thereupon iffue was joined* On the trial the Jury found for the Plaintiff on the firft Couqt, with 22,839 dollars and 80 cents damages ; and for the Defendant on all the other Counts in the declaration. On this verdidl judgment was rendered; but. the Defendant-having filed a bill of exceptions; brought the préfent Writ of Error. The bill of exceptions was founded on the following feafons,.which it fet forth’at large: .
    ■ lft. That upon the trial of the iffue “ the Counfel learned “ in the law for the faid Nathaniel Rujfel to maintain and ⅛ prove the faid iffue, offered in evidence the aforefaid foreign “ bills of exchange, with protefts for non-payment, but with- “ out any protefts for non-acceptance of the fame, or of' any “ of them.”
    2d. That “ the faid Counfel alfo contended, and infifted be- “ fore the Jury, that- two -letters of Clarke and Nightingale,: A directed, to the Plaintiff, and dated January 2,0th, and 2i/?. “ 1796, did import, an engagement, or promifo by the faid * Clarke. Nightingale to the Plaintiff,’that the faid Robert 
      51 Murray & Co. would fully comply with any contracts oreniC gagemeiits they might make with the Plaintiff.
    3d. That “ the faid counfel alfo contended and infilled bet£ before the Jury, that parol teftimony is allowable by law to S£ explain faid written promife, or engagement, expr'effed in “ faid letters.” ,
    “ But the counfel for the faid John Innis Clark, before faid t£ court did objedl, again ft faid bills of exchange, as evidence in “ faid cafe, by reáfon that the fame, or any of them, did not ap- “ pear to have been protefted for non-acceptance: And did “ infift before the Jury, that the faid letters'did not .import any “ promife or engagement by the faid Clerk £c? Nightingale, to “ the Plaintiff that the faid Robert Murray & Co. would fully “ comply with any contradi: Or engagements they might make with the Plaintiff: And that the promife or engagement, by “ the Plaintiff attempted to be proved to be made by the faid “ Clerk and Nightingale with the Plaintiff in thé faid létters, “ ought'not to be explained by parol teftirnonyj .'Which had paf- “ fed to the jury without objeftion thereto by the-faid counfelj “ they only objecting afterwards to its applicability to . the" faid <£ written evidence'of the faid promife in the faid letters;
    “ And $he Juftice who tried the faid caufe, .did then and “there deliver, his opinion to the jury aforefaidj that faid “ foreign bills of exchange ought to be admitted and pafs ihe- “ vidence before the faid jury in faid cafe, without any proteft “ for non-acceptance: And the faid juftice did, aifo, declaré “ and deliver his opinion to the faid jury, that the faid letters “ of Clerk & Nightingale, direifted to the plaintiff, ánd dated the 20th and zift days of January, 1796, did import ah en- “ gagement or promife by the faid Clerk is Nightingale, to thé t£ Plaintiff, that the faid Robert Murray & Co: .would fully “ comply with any contradi or engagements they might enter “ into with the Plaintiff: And the laid Juftice did then and “ there declare that the faid written promife, by the Plaintiff “ attempted to b t proved with him by the faid Clerk & Night- “ ingate, by faid'letters of actfi and 21ft January,. 1796, to- “ have been madej might be explained by parol teftimony.”
    The letters, on which the atftion was founded, were expref-•fed in the following words:
    
      Providence, 20th January y ifgó*
    
    'Nathaniel Russell, Esq.
    BEAR SIR,
    OUR friends MeiTrs. Robert Murray fsf Co. merchants in New-Tork, having determined to enter largely .into the' purchafe of rice and other articles of your produce in Charleston, but being entire Arrangers there, they have applied to us for letters of introduction to our friends. In confequence of which, we do- ourfelves the pleafure of introducing them to your correfpondence, as a houfe, on wbofe integrity and punctuality theutmoft dependance maybe placed. They will write you the nature of their intentions, and you may be aflured of their^complying fully with any contracts or engagements they may enter into with you. The friendihip we haye for thsfe gentlemen induces us to vviih you will render them every Service in your power, at the fame time we flatter ourfelves this' correfpondence will prove a mutual benefit.
    We are, with' Sentiments of eileeni*
    Dear Sir,
    . Your moil Obedient Servants,
    CLERK & NIGHTINGALE.
    Providence, 21ÍI January, '1796.
    Nathaniel Russell, Esq.
    DEAR SIR,
    WE .wrote you yefterday a letter of recommendation ih favor of MeiTrs, Robert Murray, is Co. We hive now to requeit th'at you will endeavour to render them every afliilance in your power Alfo. that you will immediately on the receipt of this, veil-the whole of what funds you have of ours, in your hands, in rice, on the beil terms' you cam If you are not in caih, for the fates of china and nan-keens, perhaps you.may be able to raife the money from - the bank till due, or purchafe the rice upon a credit till fuch time as yen are to be i n caih for them. The truth is, we exped rice willf ¿fe} and wi want to improve the amount of what property 
      9re can mufter in Cbarlejlon, vc-fted in that article at current price. Our Mr. Nightingale fs now at Newport, where it is •probable we (hall write you bn the fubjeit.
    We are, &'c.
    
    CLERK & NIGHTINGALE..
    It appeared upon the record, that William M’ Whaun, being examined as a witnefs under a commiffion, teftified, among other things, that in a .converfation with Jofeph Nightingale, the'deceafed partner, after the bills of exchange had been pro-tefted, Jofeph Nightingale declared to the deponent, that“ there <! could be no doubt but that the Defendants, Clerk and Nigbt-<l ingale,muft fee the Plaintiff, Nathaniel Riijfel, fecured.” But the Defendant applied to put off the caufe in the Court below, on account of'the abfence-of a material witnefs, and filed an affidavit ftating, that “ he believed the witnefs would teftify, “ that he was prefent at tlte converfation mentioned iij IV. M’ u Whaun’s examination, upon the requeft of Nightingale : but c.£ nothing of the import fuggefted by M.’'Whaun then paffedd’ The Court declared, that the caufe ihould 1⅞⅝ continued on this application, unlefs the Plaintiff agreed that the fa<5t alledged' in the Defendant’s affidavit,. íhould be confidered upon the trial as proved, to every purpofe, which it could effeft, were the wit-nefs prefent;. and the agreement was accordingly entered into..
    The general errors being affigned,.and iffue being joined on the plea in nulla ejl-erratum, the caufe was argued by Lee, the Attorney General, Howell [oí Rhode-IJIand) and Tngerfoll, for the Plaintiff in error; and by E. Tilgkman,'Dexter (of Majfa-chujktts').and Robbins [of Rhode-IJland) for the Defendant iff error.
    
    For the Plaintiff in error,
    the following, points were urged., and fupported by the correfponding authoritiestft. That the-bills of exchange mentioned in the-declaration, were laid before the Jury, without a proteft for non-acceptance,, or any proof that they weré fo protefted-
      Lov. on Bill. Vj6. Bull, N. P\ 273. 1 T.,Rep. 167. Lov. 81. 3- Bac.Abr. 613. 2 Gerd. U>ilv, Ace. 363. BulLN., P. 270. Lov. 81. 76.7. 10 Stat. at Large, p. ' 1,1 CY. at L. 106. 5 Burr. 2671. 2. 8- Mod. 80, 1 131 .-Kid. 137. 140. 1⅜ 2 T. Rep. 713.
    2nd. Thátthe Comí below,gave ¡C in chargeto the Jury, that the letters written by Cierk and Nightingale, amounted to a guarantee of any engagement, into which Robert Murray & Co. might enter with the Plaintiff: whereas the letters did not import fuch a guarantee; there was no other written evidence of it before the Jury; and a collateral undertaking to pay the debt of another, muff be* in writing agreeably to the Enslifli Statute of Frauds, (29. Car. 2- c. 3.) which is in force in Rhode-ljland., Qowp. 227. For any miftake of a Judge, in his directions or decifions upon a trial, a bill of exceptions may be tendered. 3 Bl. C. 37 2. Reg. Brc. 282. 2 Injl. 287'- Even before the fta-tute of -.Frauds, if any concrait was made in writing, the writing muff be produced; and its contents could not be proved-by parol teftimony, on the general principle, that the heft evidence of which the cafe is fufceptible, muff be given. Efp. 780. ⅛. . But fince the ftatute, a promife, like the one now alledged, caiionlybe mádein writing. 3 Woodes,.\20. 1. 2. 4Bl. Com. 439. The tetters do: not contain evidence of fuch a promife. They are not in folrm,. letters of credit, which are a fpecies of bills of exchange, are always confined to money tranfaCtions,. and invariably include a dircCt and pofiti.ve undertaking to repay the money, which (ball be advanced. Bcawcs. L. M. 447. 8. Jacob’s L. D. “Letters, of credit.” Marins 8x. 2. And, it) ftib-ítánce, the letters a e nothing more than letters'of friendly introduction. The Court andarot the Jury are, to confirme all. deeds-.and written inílruments. I T. Rep. 172. If when an opinion .is declared of the folveircy of their frierjds, there had been any deception, an aCtion in the nature of deceit would lie; 3 T. Rep. 51. Peake’, s N. P. 2,26.; but there is no fuch imputa-Vion here, and the words do not import a promife. i Fin. Abr. 261. I Roll. Abr. 6 Noy. II. 2 Com. Rep. 55⅜. Cafe 237 Nor is there any equity againfl: the Plaintiff in error; for, the obligation of a furety.is always ftricfly confirmed according to the letter of his engagement. 2 T. Rep. 266. 366. Telv. 40.1. Peake’s N. P. 226. Efp. Rep. 290. Befides, notice ought, to have been given by Ruffel to Clerk and Nightingale, if he made any advances op account of the letters; and the mere finding of the ajfumpfit will not let in a prefumption that fuch a notice was given. Marius 85. Efp. 290. 442.. The fiifi: Count isa fpecial Count, and mult be proved as it is laid; Doug. 24. But as thofe letters would apply as well to any other fpeculation, as to.the indorfementof the bills of exchange, the fpecial Connt is no notice of the contrail given in evidence.* The Plaintiff ftrould have Hated in the declaration all the inducements, ihould have fet forth the letters, ihould have averred, that R.uffe'l was the agent of Clerk and Nightingale, and that in corifideration of their requeflr, the bills had been indorfed. But the declaration does not even aver, that they ever made the requeflr, in con-fideration of which the bills were indorfed, Doug., 659.
    3d. That the promife ¿Hedged to be made in the letters of Clerk and Nightingale, ought not to have been explained by„ parol teflrlmor.y: for fuch teftimony is not admifilbleto explain a deed, or any written inftrument. 2 Bl. Rep. 1249.1 Efp. 780. ^ Wil. 275. Ca. temp. Talb. 240. 3 T. Rep. 474. 6 T. Rep. 671. Doug. 24: 2 Roll' Abr. 27b- X Aik. 13. Poiv. Cont. 277. 290. New Annual Regi/ler 1795. Day vs. Barker et al. Poiv. Cont. 373. 1 P. Won. 618.. Poiv. Mart. 61. Pow. Cont. 431. 2 Atb 384. x Br. Ch- 90. Gilb, L. of E. 5. 6. ri2. 3 Woodes. 327. 8. ■X Br. Ch. 54. 93. 4. 2 BL Rep. X249. 1250. 1 71 Rep. 180. I’ 2. Bull. N. P. 269. 280. Telv. 40. 2 Ve%. 56. 232.
    Fop the .Defendant in error,
    it was anfwered,—lit. That there was no neceffity to produce, or to prove, á protefl: for nonacceptance of the bills of exchange. 3 Dali. Rep.'pfg,, 344.
    2nd. That even admitting the letters oí Clerk ⅛* Nigbtin-
      gale to be part of the record (which, however, was conteftedj the deciiion of the court below was right; for, on a juft con-, ftrudtion of their contents, they import a promife, or guarantee; and the téVms of the letters ought to be taken moft ftrong-1 ly againft the writer. \ Bac. Sr. 168. 2 T. Rep. 366.
    3d. That the parol -evidence at the trial was properly admitted. The bill of exceptions ftates,- that the evidence pafled to .the jury without, exception, the counfel only objs&ing, after-wards, to its applicability. Where objectionable evidence is given, and not objected to, but admitted by the Defendant's-counfel, it is no ground for a bill of exceptions. The applicability of the evidence to the letters, was a matter of faCfc for the jury, not the court, to determine; and on that point the court laid nothing, though they were of opinion, that the written-pron/ife might be explained by parol teftimony. What the teftimony was, do.es not appear: nor does it appear that the Court was Qf opinion, that the promife might be explained by 'the parol teftimony, fpecifically, wbofe applicability the coun-iel denied, though the Jury have found that it did apply. 3 Salk. 373* Bull. N. P. 317. Where the parol teftimony was given, without objection, how could the court interfere? It muft operate with the Jury, and the party conferred that it ihould operate, by allowing that it ihould be delivered, without objeftion. it does not appear, indeed, that the ftatute of frauds was infilled on; and, certainly, it is not neceflary to ftate a written promife in the declaration. 1 T. Rep. 451. Bull. N. P. 279. 2 Jones 158- Nor will the Court apply the ftatute to the cafe, if the party does not. 'Peake 15. But even where the ftatute has been pleaded, parol teftimony has been attended to, in explanation of written contrails. Skin. 142. ¾. 2. Vent. 361. Efp. 78b. If, however,, the conftruction of the letters is correit, on the part of the Defendant in error, the bare declaration of the Court below, that parol teftimony might explain them, will not invalidate his right of recovery; and this Court will not reverfe a judgment rendered upon con-cl ulive 'evidence, appearing on the record, though improper evidence may afterwards have been admitted.' The general rule is, that parol teftimony- is admiffible to explain, though not to contradi^, a writing. Thus, it has been admitted, in confiftence with the' writing, to ihew a confideration other
    
      . than that, which the,deed itfelf.exprefled; 3. T. Rep. 474.. tS expliiin a certifieateiif a Pauper’s fettlement; 7. 1. Rep. 609. 2. Bt. Repi 1250. to ihew whether a cellar was comprehended within a leafe; I. T. Rep. 70i. to explains Will; 2. Fez., 216. and to prove a miftake in an agreement 1 Fez. 456. It has been admitted to ihew declarations at, and after, the writing; 1 Cha. Ca: i8o. 1 DalL Rep. 193-; 426. 1 Átk. 448. ⅞ DalL Rep. tji. 173. 196, to afcertain a fad under a Will; ⅜ Dali: Rep., jo. to rebut an equity; to prove legacies augmented, not repealed; 1 Bró. Ch.,448. 2. Br. Ch. 521. to prove the advancement of a fum of money to be an ademption of a legacy; 2 Jtk: 48. 3 Jtk. 77. 8- 2 Bra. Ch. 165. 519. SO. 21. 2 Fez. 28- and to prove the intention of the father,as-to the mode of education, on a devife of guardianfhip. 2 Fez. 56. It is admitted in cafes of refúlting trulls ; and conllantly in mercantile contrails. 2 Fez. 33Í. in fine, the llatute fpeaks, not only of the contrail being in writing, but of forne note or memorandum of the contrail; and, therefore, any memorandum. in writing of the intent of the parties (fuch as the letters in queftion) will ferve to take the cafe out of the llatute.
    
      
      
         The caufevás tried by Cushing, buíthe Diftriit Judge Baowif having been originally of counfel for the Defendant, did not lit.
    
    
      
       On opening, the cafe, Hovietl obferved, that it was neeeffitry, he pre-fumed, to call on the Judge, who prefided.at the trial, to acknowledge his. feal affixed to the bill of exceptions.
      Ellsworth, Chief JuJüce. The bill .of exceptions is part of the record* and comes up with it. For that reafon, the acknowledgment of the Judge’s feal-is unnecelfary. But if the bill of exeeplions had not beejs tacked to the record, fuch an acknowledgment inigh t-l.'Ave been, propa?.
      Sec Bull. N. P. 3j.73.319.-
    
    
      
       On Howell's Ratine; this point, tlie Chief Justice remarked, tliat it ■w.as proper to aoprife the counfel, dial in rhfeafe of Brown vs. hurry, ant. 365. the fame cj^ieftion had been agitated and decided: but ⅞7<⅛-//repre-feridng, that he thought there was a diíliníHon between the cafe of Brown vs. Barry, where the Indorfee -iued the Drawer of a bill ; aild the prefent cafe, where the Indorfee fues the. lnriorfcr- Xhe’ Court .declared they were willing'to heár'the argument, though the diftinclion did not itrike th'em as material. ■ llowrlt then endeavoured to fupport the dif-tiniiioiv, on the ground,'that a Drawer may not be inj tired by the non -acceptance, as in the cafe of his not having a Acts in the hands of the Drawfej but that an Indorfer could not be in that predicament, as a fecond Indor-ser might refort to the firft, and every Indorfer may refort to the Drawer Vf-gn the non-acceptance-of the Drawee. • Bov. an Bills. 176.
    
    
      
      
         Ellsworth; Chief Jufice. On this paint; I would with to fee any authorities that diftinguiih between folemn inftruments, and Icofe commercial memoranda.. There is fecmhigly a distinction in principle; though l do not recoiled, that it is exprefsly recognized by any writer on the law. I will, for inftance, ftare this cafe ; —A and B being at a whaif, the former fays to the latter, -‘I will fell you my ihip John.” . B niks an hour to think of the proposition; goes home; and fltortly after fends a note to A in thefe words—“l will take your Ihip John May not the party go beyond the note,.to exp.iain,by exifting circumftanées, the word /«<e, which, according to exifting circumftances, will equally embrace a purcliafe, a charter-party, and a capture ? This exemplification will ierre to convey my general idea; and-it, evidently, includes many Car. to of daily oceu.reuce in eo.'’ nercial tranfa&ions. •*
    
    
      
       S pigerfoll was proceeding,,in the courfe of his argument, to remark Upon the teftimony vif If'augh, hut was flopped by the Chite Justi ce. who referred it to the Court to decide, whether that teftimony could be' taken Utto confideration, in the difeuffion of the prefent bill of exceptions ?
      W ashington,. Jufiht. It has been contended, on the one hand, that eten the letters,which are the foundation of the action, do not make, a part of the record ; but, it has been anfwered, that they are embraced ,b> e/prefs words of reference contained in the bill of exceptions. I will not preclude myfelf, at tlv.s ftage of the argument, from giving a further confideration to that point: but it appears to me, that although M‘Waugh’s teft'imony might be deemed a pm of the record ; yet, as it is not ftated, nor even referred to, in the bill of exceptions, we cannot prefume that it was the evidence objedited to ; and, therefore, unit exclude it frpm the prefent difeuffion; which arifes on the bill of exceptions.
      Paterson J.ifiice-. It was objected in the Court below, that parol-teftip'on.y had pafled to the jury, rb explain the written contradi, on which the action was founded ; and M^Waugh’s teftimony goes directly to that point. Confideriug, therefore,all the papers returned with the writ of error, as forming a parr of che record, I think it ought to be taken juta view .on the prefent o-- cafion.
      Iredell, jfujiice. 1 do not .'think that inarguing this bill of exceptions, the depofition of M‘Waugh ought to b.e regarded. The reference to the letters of Clerk and'Nightingale, is fufficienrly dlredi to render them part of the record ; but when the bill of exceptions fpeaks of the parol teftimony, it does not ftate what was its import, nor does it any win re appear, that the depofition of lvl‘ Waugh was the fubjeCt of objection. ‘ .
      
      Cushing, JuJiice. Tile clerk of the inferior court has certified, the record and that it contains the svhoie of the proceedings in the caufe, the depofition of M( Waugh making a-part. -1 he bill of exceptions is tacked to the record; and; among otherthings, it contains aft objection to the admiffibn of parol teftimony, in explanation of the written contract. When,- therefore, we find chat M'WUttgh’s teftimony is explanatory of' She letters of Clerk and Nightingale, í ara ofopinidn,’that the reference ⅜ fufficien't to entitle the depolition to be conijdered, in déciding upon the bill of exceptions.
      Ellsworth, Chief Ju/iice. The whole of the record is exhibited in U loofe and invperfeit ftate ; but I am clear, that we ought noftto travel out of the bill of exceptions to find matter to fupport it. The letters of Clerk and Nightingale', though they might, properly, have been inferred more at large, are fo referredi to by words, and plain intendment, that •we cannot doubt their being the lame, to w'hich the bill of exceptions was applied.
      This is not the cafe with the depofrtion of M£W augh. The bill of exceptions does not exprefsly refer to that document; and though it fpeaks generally of parol teftimony,' there is nothing faid, that points more at M<Waugh’s depolition, than at the teftimony of any other witnefs, or number.of witnefles, examined upon the trial.
      It is faid, that the depolition of M‘Waugh is' a part of the record : hut I do not think it would be conftdered fo, on principle, in Mafiachufetts ; . and it is too illufory lince all the parol teftimony is not annexed) to belong couatenaneed in practice. There may have been other parol tefti-mony to counteract and invalidate the teftimony of'MiWaugh \ and there muft, we perceive, have been parol teftimony on lome points of fait ariling on tfie face of the-bills of exchange themfelves. t think, therefore,. that the dep-ofition of APiVaugh, ought to Ire excluded from' all confide-ration, in arguing the prefent bill of exceptions.
      By the Court. The depolition of ^‘⅜⅝⅞ is not to He regarded j'r ■Khe argument on the bill of exemptions.
    
   The opinion of the Court, after lome days deliberation; was delivered by the Chief Juftice, .in the following terms; •

■ Eelsworth, Chief JaJUcc. This caufe comes up on a bill of exceptions,.on the face of vvh'ch three exceptions appear.

1. Firll, that bills of exchange, which had been non-accepted,’ and protefted for non-payment, were admitted in evidence unaccompanied by protejis for non-acceptance'.

According to a'general rule, laid down by this Court; in the cafe of Barry and Brown, from Virginia, .and from which rule there'appear no fpecial circumftances to' exempt the prefent. cafe, this exception will not Hold;

2. A further exception is, that the Judge in his charge to the Jury, held, that the two letters from the Defendants to the Plaintiff below, of the 20th and '21ft of- January 1796, which werefetup to’prove an undertaking, or guarrantee, might explained by parol tcjlimony ; of which kind of teftimony fonie had palled to the jury, without objedliojn, but for what purpofe does not now appear,, as there were divers Counts; feme of which parol teftimony might have fupported.

The undertaking declared upon, in the Count, to which the verdidl applies, being for the duty of another, it muft; to fave it from the llatute of frauds, and.perjuries, be in writing, and wholly fo. The. two letters, therefore, yvhicH are’ relied upon as th$ written agreement, cannot be added to, or varied, by pa-rol teftimony. Nor can they be fo far explained by parol tefti-mony, as to affedl their import, with regard to the fuppoled Undertaking. The charge then, of the Judge, that “ they might be explained by parol teftimony,” expreffed as a general rule, and without any qualifications, or reftri&ions, was too broad ; and may have milled the .jury. . On this ground there muff be a reverfal. •

3. It is, therefore, unneceffary to decide the remaining quef-tioir—Whether the two letters did, of themfelve.s, import an undertaking, or guarrantee ? It may be proper to fuggeft, however, that a majority of the Court, at prcfent, incline to the opinion that they do not.

Judgment reverfed, and a Venire de novo awarded. 
      
      
         I h^tve undei’floodj that the CnirV Jcjt/ce, and Clshíno rJuf»P€^ ■were for the affirmative and I:;t un i,, Paterson*, and WashinIgA tost, jujures, were for the negative, ap-fwer, on the third queftioin
     