
    Clarke vs. Harris.
    
      A ithi. from Baltimore County Court. This ivas an action of assumpsit, brought by the appellee against the appellant. The declaration contained two counts. Th a first count seis out a bill of exchange drawn on the 19th of Oc- ■■ to her 1801, by Jl. Brown, on W. and T. Bailees & Co. ; of London, in favour of Clarke, (the defendant in the court below,) or order, for ¿6500 sterling, and by him endorsed to Harris, the plaintiff, who endorsed it io 0. Simpson, \ the ciuhicr of Ihe ÍSank of the United Suites, and by hie endorsed to F. Baring & Co. Averment, that F. Bating & Co. on Ihe 19th of January 1800, at London, to wil, &c. caused the bill of exchange to be presented to W. and T. Bailees & Co. for their acceptance, but they neglected and refused so to do, and the bill of exchange was protested for nonacceptance, of which premises Clarke afterwards, on the 1st of July 1802, had notice. That F. Baring & Co. afterwards, when the bill became due and payable, to %vit, on the 03d of March 1800, caused the bill to be presented to IF. and T. Bailees & Co. for payment, but they did not then, or any other time, pay the same, but neglected and refused so to do, and the bill was protested for nonpayment. That by reason of the premises the plaintiff, as endorsee of the bill, was obliged to pay, and did pay, the sum of money mentioned in the bill, together with re-exchange, interest, damages and costs, amounting, &c. to Ad 1,233 G 6 current money, of all which premises, Clarke, (the defendant,) afterwards, &e. had notice, by reason whereof he became and was liable to pay, &c. and being 90 liable, he in consideration thereof afterwards, &c. undertook. raid then and there faithfully promised the plaintiff to pay, &c. The second count was for money laid out, •paid and expended, by the plaintiff, for the defendant, &c. The general issue was pleaded. > - ‘ . > '
    1. The plaintiff at ihe trial proved that Jl. Brown was a person using trade and commerce, and carrying on mer5 ' chamlize at the city of Baltimore,- on, after and before, the 19th of October 1801, and that he drew his;bill of exchange for cí'Gó'OO sterling on TV. and T. Bailees, merchants of London, by the names of TV. add T. Bailees, & Co. in favour of Clarke, the defendant, or order. And. that Clarke. afterwards endorsed the bill of exchange to Harris, or order, and that Harris afterwards endorsed it to G. Simpson, cashier and agent of the Bank of the- United States, or order, for and on account of the president, directors a'nd company, of the Bank of the' United Stales; and further, that Simpson afterwards, as agent' of the president, directors and company, of the Bank of the U, S. endorsed the bill to F. Baring & Co. or order, and that afterwards F. Baring & Co. caused the bill to be protested for nonpayment thereof, viz. on theSSd of March 1802. And the plaintiff offered to prove by the oath of B. Harris, for that purpose sworn to the jury, that the original bill of cxchangOj together with an original protest thereof for nouacceplance, and protest for nonpayment thereof, came to his hands as agent for the Bank of the tf. S. and were respectively delivered by him to the district attorney of the U. S. for the purpose of instituting suits on the bill against Clarke, (die defendant,) and Harris, (the plaintiff). He also offered in evidence the records of proceedings in the circuit court of the U S. in and for the Maryland district, against Harris and Clarke respectively, at the suit of G„ Simpson. And offered to prove, that die bill of exchange in those records mentioned is the same bill offered in evidence in this' cause; and that Simpson, the' plaintiff in the records, is the same Simpson who is cashier and agent of the Bank of the U. S. and that Harris, the plaintiff in this Suit, and Clarke the defendant in this suit, are respectively the same persons who were defendants in the records; He then offered to prove by Z>. Harris, that the protest for nonacceptance of the bill of exchange is not in his possession, nor in the possession of the district attorney of the U. S. nor in the office of the clerk of the circuit court of Ihe U. S. among the other papers, but is lost or mislaid; and therefore offered, under such circumstances, to be per-» mitted by parol to prove the protest for nonacceptance. To the admissibility of which evidence the defendant objected. But the county court, [Nicholson, Ch. J. and Hollingsworth, A. 3.} were of opinion, that the testimony Was pfopei’ and competent to prove the protest for nonaocepiance. The defendant excepted.
    
      
      ■■ ; \ In assumpsit oil a forogu tiill of exchange by the stcuud OTidorsnr, who bad paid the bill, aga mst. the pillee, evulenew was t ii'civd kj piove that the o» xúgmai bid, ansi a’i original p:«Tc->t !bi nonacceptance, ami protect tor wonpaj ment, were delivered \.o the a Homey of ihe holder of the bill, for the purpose oí instituting suits triereon against the payee, and second endorsos , (the plaintiff ami defendant in, tins action) lie-conk of the judgments rendered m those mils on the saul will were abo offered m evi* deuce,1 and also’ p;t¡ oi (vidence that the protest for noi.acceptar.ee was lost or ink. aid---fields that tne testimony was, proper an& competent ta pros e the protest for noniieceptauee
    A an nt of the ho.dee of a bel oi ex-eiteng-e, proved# that m the usual course of the post he received protest* for the non acceptance and lump ¡ymeni off ih,v bill, and on the days that ho received them ha I'.HJ the defendant Che paje*,.) vo. bal notice of s idi protests, and shortiy after, eitlier the same or the next day, ibr greater cerUnHy made out written nonces to be sens to ¡he doieiuknt of the protests, & copied the same ¿ti n booh, which he produced, and that the defendant afterwards íídmiítt d he had received such wrui.-is notices The defendant objected,to the testimoii) > because the notices being m writing, ami no notice having been given to him to produce than, no evidence ought to be given of their conlems~-/ie¿í¿ that the evidence was. admissible*
    Where A drew a bill ofexchange on B, for the sole purpose of having it discounted to raise money for the use of A, and for enabling him to do so, C, to whom the bill was made payable* at the request of A, endorsed the bill in blank, am! de ivernl it to A, who afterwards, for tbe'pnrpo-e of g.ving it iurther credit, and of thereby enabling him to rinse money on it tor hi; own benefit, applied to [{¡, who for thut purpose endorsed the bid m brink, ami d^bvered it to A, who sold u to S, for bis own benefit. The bill was presented r<> B, the tímeme, for acceptance and payment, and net having; tocen accepted or paid, was duly protested antilegal notice thereof «riven to the panic'* end pay tixcnt demanded, wbiidt was- made by H In an action of assampoil by II* against C, to recover the amount s-o puidy Jfe/H, that II was entitled to recover ft om C the sum of money so paid by him.
    In such an action u need not l e averred in tae deelnrniiMi that the defendant liad notice of tL® protest for ncupaj meat of the bí'i5 aiidthst the plaiatift hud paid etc*
    
      2. The plaintiff then offered to give in evidence by D. Harris, the cashier of the Office of Discount and Deposit, that in the usual course of the post from Philadelphia to Baltimore, he received a letter from G. Simpson, cashier of the Bank of the Ü. S. dated the 3d of April 1802, enclosing protests for nonacceptance of the bill of exchange* end that he, on the day he received the same, called on the defendant, and gave him verbal notice of such protest; and shortly after, be believes on the 8th of the same month, for greater certainty, he made out a written notice to be sent to the defendant of the protest, and copied such notice in. a book, which the witness produced to the court, and that the defendant did afterwards admit he had received the' written notice. The plaintiff further offered to give evidence by D. Harris, that he received a letter from Simpson, dated in Philadelphia the-day of — —— 1802, containing protests of the bill of exchange for nonpayment, and that he received tiie same in the usual course of the post from Philadelphia to Baltimore; and that on the day of receiving the same, he called on the defendant, and gave him verba! notice of the last protests; and that on the same or the next day he, for greater certainty, made out a written notice to the defendant, and delivered the same to L. G. to be delivered to the defendant, and that the witness copied this notice in a book, then produced by him; and did offer to prove by the witness, that the defendant, did afterwards acknowledge to him the receipt of the written notice. To this testimony, the defendant objected, because the notices being in writing, and no notice having been given by the plaiutijf to the defendant to produce them, no evidence ought to be given of their contents. But the county court, fNicholson, Ch. J. and Hollingsworth, A. J.y were of opinion, that such evidence was admissible tobe given to the jury; and the same was accordingly given. The defendant excepted.
    3. The plaintiff then gave in evidence, that the bill of exchange was made by Brown for the sole purpose of being discounted to raise money for his own use; and that for enabling him to do so the defendant, at the request of Brown, and for the sole purpose of enabling him to raise money thereon, but without any other consideration, did endorse the bill in blank, and immediately delivered H back, so endorsed, to Brown,hat at that time had,no knowledge or information that the bill was to be endorsed alter him by the plaintiff, or that Bi'own intended to apply to ' tlie plaintiff to endorse the bill. And further gave in evidence; that Brown, after receiving back the bill so endorsed by the defendant; carried it to the plaintiff, and requested him to endorse the bill after the defendant, for the purpose of giving it further credit, and of thereby enabling him, Brown, to raise money on it for his own benefit. That •the plaintiff, in compliance with this request, and for the purpose of giving additional credit to the bill, and to enable Brown to obtain money thereon for his own use, did endorse the bill in blank, and immediately delivered it back, so endorsed, to Brown, in blank, who Soon after sold it to G. Simpson, cashier of the Bank of the U. S. for' his Brown’s own benefit. That at the time of the endorsements no consideration had taken place between the plaintiff and defendant respecting the bill or endorsements, oí*' respecting any endorsement to be made by them, or either of them, for Brown, or for his use or benefit; and that the plaintiff received no consideration for the endorsements, except such as might arise in law from the previous endorsement of the defendant, and from the making of the bill by Broion, and that the bill was never delivered to the plaintiff or to the defendant Brown, except for the purpose before mentioned. The plaintiff also gave in evidence, that the bill having been sold to Simpson, as before mentioned, was duly presented to the drawee for acceptance and payment, and not having been accepted or paid, was duly and regularly protested, for nonacceptance and nonpayment; of which protest notice was duly and legally given by Simpson to Brown, and to the plaintiff and defendant, and payment thereof immediately demanded by Simpson of Brown, who failed to pay it. Whereupon, notice of the failure was duly given by Simpson to the plaintiff and defendant, and payment of the bill was demanded of them by Simpson. The plaintiff further gave in evidence, that he and the defendant, being so called on for payment of the bill, did mutually agree that each of them should pay one half of the sum of money due thereon, but that-the right of the plaintiff to recover from the defendant, as the prior eridorsor of the bill, the sum so by the plaintiff to be paid, with interest, should notin any manner be affected by the agreement, And that the plaintiff did, in pursuance of drat agreement, on the 12th of December 1802, pay to S.mpso.n, cashier of the Bank of the U. S. the sum of SI 3,206 67, being one half of what was then due on the bill. The defendant then prayed the court to direct the jury, that the plaintiff, if the jury should believe the facts so offered in evidence by him, is not entitled in law to recover in this action the sum so paid by him to Simpson, cashier of the Bank of the U. S. V/hkh opinion, [Nicholson, Ch. J.] refused to give. The defendant excepted. Verdict and judgment for the plaintiff, and the defendant appealed to this court.
    The cause was argued at the last fe.rin before Chase, Cb.’ J. Buchanan, Gantt, and Earle, J. and was reargued at the present term before Chase, Ch- J» Role, Buchanan, Gantt, and Earle, J.
    
      Shucff, W Dorsey, Winder, and S. Chase, jY. for the Appel lark,
    contended, 1. That the declaration was defective, because it was not averred in the first count that the defendant bad notice of the protest of the bill of exchange for nonpayment; and that the plaintiff look up the bill by paying it, &c. They cited Rashton vs. Aspinall, Doug. 683.
    2. That if this count is defective, there being a general verdict, it would not be cured, even if there should be a good count in the declaration. They cited Marriot vs. Lister, 2 Wils. 141. Holt vs. Scholefield, 6 T. R. 691; and Baldwin vs. Elphinston, 2 W. Blk. Rep. 1037.
    3. That the plaintiff could not recover on the money count stated in thp declaration, they cited Chitty on Bills, 378, and Gibson vs. Minet, 1 H. Blk. Rep. 602.
    On thc, fast bill of exceptions they contended, 1. That It was not competent for the plaintiff below to give in evidence the records of the circuit court, because they were between different persons than the parties in this action.
    2. That no parol evidence ought to be admitted to prove a protest of a bill of exchange for nonacceptance or nonpayment.
    On the first point, they referred to Peake's Evid. 34, 35. Bryden vs. Taylor, 2 Harr. & Johns. 296. Gittings's Lessee vs. Hall, 1 Harr. & Johns. 18; and Davis's Lessee 
      
      vs. Batty, Ibid 264. On the second point, they cited Peake's Evid. 107; and Shaw vs. Markham, Peake's N. P. 165.
    On the second bill of exceptions, they contended, 1. That parol evidence that notice in writing had been given to the defendant, ought not to have been admitted, without a previous notice to the defendant to produ'ce such written notice.
    2. That notices of the nonacceptance, and nonpayment of the bill of exchange, were not given by the plaintiff to the defendant, but by a third person. On this point they cited Tindall vs. Brown, 1 T. R. 167; and Ex Parte Barclay, 7 Ves. 597.
    
      Hey, Harper, and T. Buchanan, for the Appellee,
    as to the defects in the first count in the declaration, referred to the act of 1809, ch. 153, s. 2.
    On the first bill of exceptions, they cited Peake's Evid. 97, and Chitty on Bills, 239, 240.
    On the second bill of exceptions, they cited Chitty on Bills, 239, 240. Stedman vs. Gooch, 1 Esp. Rep. 5. Kufh vs. Weston, 3 Esp. Rep. 54. Saunderson vs. Judge, 2 H. Blk. Rep. 509. Chapman vs. Lipscombe, 1 Johns. Rep. 296; and Gotlieb vs. Danvers, 1 Esp. Rep. 455.
    
    On the third hill of exceptions, they referred to Wood vs. Repold, (ante 125.)
   The Court

agreed with the County Court in the opinions given in the several bills of exceptions.

JUDGMENT AFFIRMED.  