
    Chase vs. Taylor.
    sign bilr'of f°x' SaIK, o?TC,L;m"íbie°"[ 60 days after sigluj which bin wo, on the 6th of June Mor presented for acceptance and refused,ami so not-&s?wisb"vernr«dé^e and and on t thi?Ubmia0beonine hi^’hlmds^iefongl W T more
    than sufficient to pay the bill, and he was in good credit up to the Rill of August 1807, when he became a bankrupt. The bill was presented for payment, and no demand of payment from TV L, and no protest for non payment were made until the 17th of November U07. No notice was given to IV T oí the non-acceptance, and the non payment was not made known to him until some time in 1S08. On the 17th of August 1807, TV T, being much embarrassed in his commercial concerns, but having very considerable property in ships, &e txeeuted certain bills ofsalein trust, fee. andón the llth of Sep* tember 1807, he executed one on the ship O, to T C, in trust, &e. On Uie20th oí September 1808 lie satisfied the fir»t mentioned bills of sale, and received a reconvej anee. TC about that time pressed TV T to settle an account, he claiming a large balance to be due to him, in which the bill oí exchange was an article of charge, together with interest, damages and costs thereon On the 27th of September 1808, the'said account was settled, and W T paid to T C in cash, and notes, which were after-wards paid, the balance due on the said account. T C had declared to TV T before the said settlement and payments, that he would not release his right under the deed of the 31th of September lb07, unless W T would settle the said account, and pay cr secure the balance. In art action by TV T u-W T was then apprized of the said fact, but made the settlement, and gave the notes, in order to induce T 0 to relinquish his said lien on the ship 0, which T C otherwise refused lo do, then the settle, ment, payment and notes were not voluntary, and did not bind 1V T That if the settlement was made by W T under an ignorance of the fact of nonpvoiest of the bill, or for the purpose of inducing TC to relinquish lm said" lien, which otherwise he refused todo, and that hi-the settlement the cash payment then made was intended by the parties to apply to the said bill, then W T was entitled t« recover hack so much of the said money as was paid on account of the said bill, except that proportion of the,bill which was receive;, by him of W Us estate. And if in the settlement, the no‘es given to apply to the imd bid, and at the time of taking them up TV T was apprised of the tael that the hill had nor been protested for non acceptance, but that he so took them up for the sole purpose of ‘inducing T C to relmquidi his hen on the ship, then the payment of the notes \vns not voluntaiv, Sind did not bind W T-
    If W T, after he was informed of the irregularity m ihe protest of «he hill of exchange for non payment, and of the non protest for non acceptance, and had taken up the bill, made a claim against the estate of W L therefor, and it was allowed by the commissioners of TV Us estate, and a dividend allowed, and received bj W T,.it will not nri vent TV T irom recovering from T C the balance paid by him onaecount of the'bill, deducting such dividend.
    No evidence can be given of the protest of a foreign bill ofexchangefor non acceptance, without producing the pvetest'itself, or a copy from the books of the notary, or proving that the books and tin* original protestare lost.
    Ari’Eal from Baltimore County Court. This was an ^ion of assumpsit for money had and received. The general issue was pleaded.
    l. At the trial the plaintiff, (now appellee) read in evi- * ' 11 ' dence a bill of exchange, drawn, by him according to the o ./ © custom of merchants, on the 07th of April 1807, in favour of defendant, upon one- William Lees, merchant at Liver-in England, tor A1000 sterling, payable sixty days sight. And further offered evidence to prove, that the said bill of exchange having been received bythede-fendant, was by him transmitted to one Thomas Slater, his correspondent at London, for the purpose of being pre-sen ted and paid; that the bill was accordingly presented to Lees, at Liverpool, for acceptance, on the 6th of June 1807; that Lees refused to accept it, and that it was noted for nonacceptance by the notary who presented it, but that no protest was then, or at any time afterwards, made for or on account of the said nonacceptance; that Lees, at the time of the said presentation, and from that time until the bill became due and payable, and afterwards, had in his hands effecis of the plaintiff, over and above all other demands, more than suflicient to pay anti satisfy the bill; and that at the time of the drawing the bill, the plaintiff had shipped to Lees a valuable cargo belonging to the plaintiff, which before the bill was presented had arrived at Liverpool, and had been received by Lees, and was in his possession as the property of the plaintiff, when the bill was presented, and formed a part of the said effects, and was in itself much more than sufficient to pay and satisfy the bill; that Lees sold and disposed of the said cargo, for the use and as the property of the plaintiff, between the time of the presentation of the bill, and the 8th of August 1 SOr, when it became due, and had the same, with more effects of the plaintiff, in his hands, when be, Lees, became a bankrupt on the said 8th of August, up to which time Lees was in good credit. That the said bill was not presented for payment, and that no demand of payment from Lees, who continued to reside at Liverpool, and no protest for nonpayment was made, until the 17th of November 1807, more than three months after the bill was at maturity. That no notice was given to the plaintiff” by or on behalf of the payee of the bill of the said nonae-ceptance; and that the nonpayment of the same was not in any manner made known to him until sometime in the year 1808. That on the 17th of August 1807, the plaintiff, being much embarrassed in his commercial coucerns, but having very considerable property in ships and merchandize, and being pressed by creditors, duly made and executed to the persons therein named the following deeds for the ship Orozimbo, and her cargo, viz. A bill of sale of the ship Orozimbo, to George Salmon, William Winchester, Ralph Higginbotham, and James Coa; — consideration 850,000, dated 17th of August 1807; and a deed of trust to the same persons — .consideration $42,495 14, for the Cargo, &c. of the ship Orozimbo, dated on the same day; and also a deed for the cargo of the Orozimbo to the defendant, and Joseph Sterett, on the 11th of September 1807", which should remain after satisfying the trusts-mentioned in the last above mentioned deed, to pay the defendant $17,500, the amount of negotiable paper loaned by the defendant to the plaintiff; and to pay Joseph Sterett §5,000, &c. .The plaintifffurther gave in evidence, that on the 9th of September .1808, the ship Orozimbo arrived in the port of Baltimore, with a very valuable cargo on board; and that on the 20lh of the same month, he was enabled, by the assistance of a friend, to satisfy the claims mentioned in the two deeds dated the 17th of August 1807, and received a reconveyance of .the ship and cargo therein mentioned, which he gave in evidence. That ¿bout the same time the defendant pressed the plaintiff to settle an account, in which he claimed a large balance to be due to him, and in whicli the said bill of exchange was an article of charge, together with interest, damages and costs thereon. ■ The account was as follows:
    Dr. Wm. Taylor, in ac. current with Thorndick Chase, Cr. 1807.
    Sept. 19. To amount of sales of 103 hhds. tobo. &c. 10,[ XXX XX XXXX ].
    Sept. 13. To bill of exchange returned from London under protest, and charges, &c. 5,683 31
    To, &c. Sic. amounting in all to 18,950 18 By credits, &c.
    By balance due, 12,283 56
    To balance due, §12,283 56
    That on the 27th of September 1808, the plaintiff settled this account with the defendant, and paid to him in part discharge of the balance appearing to be due, the sum of 6,327 97, and gave him his notes for the remainder, amounting to to §5,950, which notes he gave in evidence. He also gave in evidence that the said notes were afterwards, in the months of May, August and September 1809, paid in full by plaintiff to the defendant, that at the time of making the said settlement, and payment and •giving the said notes, on the 27th of September 1808, the plaintiff was wholly ignorant that the said bill of exchange had not been protested for nonacceptance, or that payment had not been demanded, or protest for nonpayment made, sooner than the 17th of November 1807; that he had not then received notice from the defendant of the time when the said bill was presented for acceptance, or that acceptance had been refused as the law required. That the defendant had declared to the plaintiff, before the said settlement and payment were made, and the said notes given on the 27th of September 1808, that he would not release his right under the deed of the 11th of September 1807, unless the plaintiff would settle the aforesaid account, and pay or secure the balance; that the said bill of exchange was not shown to the plaintiff at the time of the said settlement, but that the defendant promised to send it to him, and did send it a few days afterwards; and that when the plaintiff had examined it, and the protest annexed to it, (which protest he offered in evidence dated the 17th of November 1807,) he complained to the defendant, that he had been induced to pay a bill for which it now appeared he was not liable, and observed, that the defendant ought to refund it; to which the defendant replied, that if the money could he recovered at all, he ought not to be sued for it. That when the said settlement and payment were made, and the said notes were given on the 27th of September 1808, the defendant required from the plaintiff two bills of sale to secure the payment of the said notes, one of which bills of sale conveyed to the defendant a moiety of the ship Fame, and the other conveyed to him the ship Roboreus, as expressed in the receipt or acknowledgment given by the defendant for the said bills of sale, which receipt the plaintiff gave in evidence. That upon the said bills of sale being executed and delivered to him, the defendant, and Joseph Sterett, released and reconvey-cd to the plaintiff the property mentioned in the deed from the plaintiff to them of the 11th of September 1807, which release the plaintiff read in evidence. And that the defendant held the said bills of sale of the Faroe and Robo-•te,us until the aforesaid notes were fully paid. The plaintiff further offered evidence, that he was ignorant of the want of a protest for the nonacceptan'ce of the aforesaid bill of exchange, when he paid and satisfied the said notesi and that while the said ships Fame and Roboreus were ly-ingat the port of Baltimore, and the said bills of sale weifi in the possession of the defendant in fall force, the plaintiff, for the purpose of transporting a certain quantity of coffee, part of the said cargo of the ship Orozimbo, to the continent of Europe, chartered the three following vessels? that is to say, the Leda, Richmond, and Dolphin, and did actually pay for the freight of said property the sum of St 5,000, and upwards. The defendant then gave in evidence, that at the time when the settlement of the 27th of September 1808, was made, the plaintiff had been infer pied, and did know, that the.said bill of exchange had been presented for acceptance to Lees, on the 6th of June i 807, and that the acceptance thereof had then been by him refused, and that the said bill had not been protested for nonacceptanee by or for the defendant; and also had been informed, and did know at the time of the said settlement, that the said bill was not protested for nonpayment until the 17th of November 1807; and that neither at the time of the said settlement, nor at any time before, did the plaintiff in any manner object to the payment of the said bill with damages and interest, but offered to secure the payment thereof, and that the only difference between him and the defendant, at the time of, and before the settement, was about the nature of the security to be substituted by the . plaintiff instead of the lien on the cargo of (he Orozimbo, then held by the defendant;' and that the said payment and settlement, and also the payment of the said, notes, were voluntary on the part of the plaintiff’, and made with a full knowledge of the undue delay in protesting the said bill for nonpayment, and of the nonprotest thereof for non acceptance. The defendant also gave in evidence, that on the 8th of August 1807, when the said bill became payable, Lees became bankrupt, and was duly declared bankrupt according to the laws of England; and that the plaintiff af-terwards, and after he had made the said settlement and payment of the 27th of September 1808, and before he had paid the said two notes then given,-did present his account against the estate of the said bankrupt, to the assignees and commissioners of the said bankrupt, which account included the sum so paid to the defendant for principal, damages and interest, on the said bills, and was passed by the said commissioners, by whose order a dividend of 7s 6d sterling in the pound on the said account was paid to the plaintiff', and received by him before the commencement of this action. And also gave in evidence, that the defendant did not at any time take, and never had or threatened to take, any actual possession either of the cargo of the Oro-zimbo, dr of the said ships Fame or Roboreus, or either of them, and that all of them remained in the actual possession of the plaintiff And also gave evidence to prove, that the plaintiff, sustained no actual loss or damage from the failure of the defendant to cause the said bill to be protested for nonacceptance,. or to give notice thereof to the plaintiff, or from the delay of the defendant to cause the., said, bill to be presented for payment in due time, and t(f be duly protested for nonpayment. He also gave evidence to prove, that the cash payment made on the 27th of September 1808, was intended by the plaintiff and defendant, to apply to the parts of the said account due for matters other than the said bill of exchange, and that the said two Botes were intended to apply to the part of the said account arising from the said bill of exchange; which evidence arises wholly from the papers, facts and circumstances, stated, above. The plaintiff further offered evidence, that he sustained loss by the omission of the defendant to cause the said bill to be protested for n,unacceptance, and to give notice thereof to the plaintiff, and also from the delay of the defendant to cause the said bilí to be presented for payment, and protested for nonpayment, The plaintiff further offered evidence, that the cash payment made on the 27th of September 1808, was not intended by the plaintiff and defendant, or either of them, to apply to the parts of the said arcount, other than the said bill of exchange, but that the said payment was intended to apply, in the first instance. to the said Dill of exchange; which evidence also arises wholly from the facts and circumstances stated above. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if they believe the facts so given in evidence by the plaintiff, and that at the date of the settlement of the sail} account on the 27th of September 1808, he was ignorant that the said bill of exchange had not been regularly protested for ■ nonacceptance, or that the same was not presented for payment at the regular time of the payment thereof, after the said presentation for acceptance, and protested for nonpayment; or if they believe that the plaintiff, at the settlement of the said account, had knowledge of the said facts, bat that the defendant refused to release the power or control which he possessed over (he cargo of the Qrozimho, unless the plaintiff settled the said account, and gave the promissory notes, and bills of sale for the ships Fame, and llplot ieua, to the defendant, then the plaintiff is entitled to recover in tliiss case. This opinion the Court, r Nicholson, Ch. J. and Hollingsworth and Bland, A. J.j refused to give; but were pf opinion, and so directed the jury, that if in their opinion the plaintiff at the time of .making the settlement of the 27th of September 1808, was ignorant of Site fact that the said bill had not been protested for nou-acceptance, then the whole settlement was formed in mistake, and was not obligatory on the plaintiff; or if the jury should be of opinion, thaf the plaintiff was then apprized of the said fací, but made the said settlement, and .gave the said notes, in order to induce the defendant to relinquish his said lien on the cargo of the Orozimbo, which the defendant otherwise refused to do, then the said settlement, payment and notes, were not voluntary, and do not bind the plaintiff. And if the jury should be of opinion, that the said settlement of the 27th of September 180S, was made by tlife plaintiff under ignorance of the said fact Of rionprotest, or for the purpose of inducing the defendant fo, relinquish His said’ lien, which he otherwise refused to do, and that ih tlife said- settlement the cash payment then made was intended by the parties to apply to the said bill of exchange, then the plaintiff is entitled to recover back in this action so much of the said money as was paid on account of the said bill of exchange, except that proportion of the said bill which was received by him of Lees’ estate at Liverpool. And if the jury should be of opinion, that in the said settlement; the notes given as aforesaid were intended by the parties to apply to the said bill of ex» change, and that before the time of taking up the said notes, the plaintiff was Still ignorant of the fact that the said bill Had not been protested for nonacceptance, then the pay» inént óf the said notes was by mistake, arid does not bind . the plaintiff. And the court Was also of opinion, that if the said notes were intended by the parties to apply to the Said bill of exchange, and at the time of taking them up. the plaintiff was apprized of the fact that the said bill had not been protested for nonacceptance, but that the plaintiff sb took thérri up for the sole purpose of inducing the de* fehdaflt to relinquish his lien On the ships Fame and Bobo-reüs, then the payment of the said notes was not voluntary, and did not bind the plaintiff. The defendant except* ed.
    2. The defendant, to prove that the said bill of exchange bad beeli drily protested for horiacceptance, offered in evidence the memorandum noted, viz. “6th June 1807, John Irvin, N. P-” which he offered to prove was made by a notary public in Liverpool, at the foot of the billj and also for the same purpose pro'ved that the said notary is rlow dfea'd, and has been for some time past, and that it is the usual course, in relation to bills of exchange, to protest them for no’nacceptance as soon as they have been noted for rionácceptance. The 'defendant then prayed the opinion of the court to the jury, (hat if the jury should be of dpiniori that the bill of exchange was presented for acceptance on the 6th óf June, and was duly noted and protested for nonacceplarice, and that the plaintiff was in due time informed of the said notation and protest, although the said protest was never shown to him, then that the driiission to protest the bill for nonpayment, when according to its tehorit became due, did not exonerate the plaintiff from his legal responsibility on the bill. But the court were of opinión, and so directed the jury, that the defendant cannot givfe any evidence of the protest of the said Hill for rioriaceeptahce, without producing the protest it-, •elf, ór ri copy thereof from (life books of the notary, ot proving that the -said ,boóks, and the original protest* re lost, and therefore refuse the direction prayed. The léféndant excepted/ * -
    
      8. The defendant then prayed the opinion of the court, and their direction to the jury, that if they believe that the plainüíh after lie was iniorrn'ed of the ineguiarity in tbe protest of this bill of exchange for nonpayment, ami of the nonprotest thereof for nonacceptauce, and had taken up the said bill, made a claim against the estate of ¿my which claim included the said bill of exchange, and (lie money paid thereon by the plaintiff to the defendant as aforesaid, and that the said claim was allowed by the commissioners of Lees' estate, and a dividend thereon allowed, and paid and received by the plaintiff, then the plaintiff was not entitled to recover in this action. This opinion the court refused to give. The defendant excepted.
    4. Tbe defendant then gave in evidence, that on the 10th of June 1807, four days after the noting of the said bill of exchange For nonacceptauce, Lees wrote and transmitted to the plaintiff a letter, informing him that the acceptance of the said bill of exchange had been refused, and that the ultimate payment thereof was doubtful, which letter was received by the plaintiff in the usual time, and long before the said settlement of the 87th of September 1808, and he gave the letter in evidence. And he then prayed the opinion of the court, and their direction to the jury, that if they believed from the evidence that the said letter was written and received as aforesaid, and that the said bill of exchange was noted as aforesaid for nonacceptance, then the want ot a protest thereof for nonacceptance did not in law absolve the plaintiff'from his liability on the said bill of exchange, and therefore could not operate to enable him to recover in this action. This direction the court refused to give, being of opinion, that the memorandum on the said biil of exchange was no evidence of the same having been noted for protest; and that to receive other evidence of a protest for nonapeep-tance, than the protest itself, or a copy of it, except where the original and the record Iraye been lost or destroyed, would be to step oyer all those rules of the law of evidence by which the commercial world is governed. The defendant excepted.
    
      5. The defendant then prayed lire opinion of the court, and their direction to the jury, that if in'their opinion the plaintiff, at the time of settling the said account, making the said payment in cash and notes on the 87th of September 18.08, or of taking up the said notes, bad received no notice of any protest of the said bill of exchange for nonacceptance, and that no such protest had been made at the time of presenting the said bill for acceptance ot- after-wards, and that the plaintiff, at the time of taking up the Said bill of exchange on the 87th of September 1808, by paying the amount in cash and notes as aforesaid, or of taking up those notes as aforesaid, was ignorant of the omission to protest the said bill for nonacceptanc», then such ignorance does not affect the right of the defendant to.retain the money for which this action is brought. But the court also refused to give this opinion and direction, The defendant excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Eajile, Johnson, and Martin, J.
    
      Harper, for the Appellant.
    
      Binhney and W, Dorsey, for the Appellee. They referred to Jistleyvs lieynolds, 2 Stra. 915, 916. .
   ; The Court concurred with the County Court in the opinions given in all the bills of exceptions.

JUDGMENT AFEIUMED.  