
    Anderson, Bannaline & Co. against Robson & Jones.
    
      Charleston,
    
    1803.
    A merchan forwarding to his agent abroad a duplí-cate letter enclosing a no-a* bHl ofP>cs-refemág 8 to fetter amfbU? otL of «• particularves-s,el • proof oí the letter-bag of such vessel thrown over. chased by'im ^"sufficient f¡™'ic"s oftioí original, so ac to justify the court to per-be given7 in í0 ^
    THIS was an action on the case upon a bill of exchange, the original of which was supposed to have been lost.— 0 _ *1 _ Verdict for the plaintiffs. Motion for new trial.
    The bill in question was drawn by the defendants, merchants in Glasgow, in favour of the plaintiffs, who were also imerchants in that city ; but as they both lived at the same place, it was a single bill, without duplicate or triplicate, as Is customary where bills are drawn by merchants on others J J abroad. It was refused payment by the payee, and was of 1 ] J J ' course duly protested both for non-acceptance, and nonpayment. But in the mean time, and before the bill was at maturity, Mr. Robson, the only solvent copartner, came out to Carolina ; and the bill after it was protested, was sent out after him for recovery. The letter enclosing the original bill with, the protests, was put into the letter-bag 0 of the ship Britannia, bound to Charleston, which on the passage was chaced by a French privateer, and that so closely, that the master was induced to throw the letter-bag overboard, for fear* of its falling into the enemy’s hands, in which, it was alleged, the bill in question hail been put.
    One witness proved, that the defendant Robsóñ acknowledged in Charleston, that he had drawn the original bill, on which this action was brought, but there was no positive proof of its loss. In order, therefore, to supply this defect of positive proof, the plaintiffs resorted to presumptive evidence ; and the plaintiffs’ correspondent in Charleston, to whom the originals had been addressed, swore that he had been employed by the plaintiffs’ house in Glasgow, to recover the amount of this bill; and that he had received by the next ship which sailed from Glasgow after the sailing of the Britannia, a duplicate of the letter written by that ship, from the plaintiffs, enclosing notarial copies of the protests, with a copy also of the original bill ; in which they informed him, they had sent on the originals by the Britannia ; he also proved that the Britannia arrived without any letters, and that the captain and mate of the ship had both assigned as a reason for not bringing letters for Charleston, that the letter-bag had been thrown overboard, when the ship was chaced by the French privateer, on the passage.
    An objection was taken to this kind of testimony by the defendants’ counsel, as not bringing this case within the rules of law ; as there was- no other proof of the original being put on board the Britannia but the plaintiffs’ own letter; and the throwing the letter-bag overboard, containing the originals, was only hearsay testimony.
    To this it was replied by the counsel for plaintiffs, that from the nature of the transaction itself, the matter was not well capable of higher proof; and in mercantile affairs, in the course of trade between merchant and merchant in foreign countries, less strictness was observed, and a much greater latitude was allowed, than in the contracts made, and to be observed between citizen and citizen residing in the same country. That every thing had been proved in this case, which was usual and customary in the way of trade. Letters of advice, invoices, bilis of lading, protests, and all those kinds of documents, usual in commercial cases, were every day given in evidence to juries, and admitted by courts of justice; and without it, trade could never be conveniently carried on. The duplicate of the letter, enclosing notarial copies of the protests, and the bill of exchange, could not possibly be a fabrication, as it Vas written soon after the sailing of the Britannia, and as there was but one original bill, a duplicate or triplicate could not be sent. Every thing, therefore, seems to have been done by the plaintiffs in this case, which it was incumbent on them to do, in order to establish their right; and the fact of the letter-bag being thrown overboard when the ship was chased by the French privateer, was unquestionably proved and corroborated by tire actual arrival of that ship in Charleston, without letters; and the declaration of the principal officers of the ship to that effect, on their arrival, who could have had no interest in making a wilful misrepresentation upon a point of so much importance to all concerned, and in which their own characters as honest •men were deeply concerned.
    ■Judge Johnson, who tried this cause, in his charge to the jury, observed, that this was a case to he governed more by the usage and course of trade, than by the rigid rules of the common law; and much greater latitude was allowable in a case of this nature, than could be permitted by the courts of justice, in eases relating to the loss of deeds, specialties, and other instruments, which were to be regulated by the strict rules of evidence.
    That there appeared to be no doubt, as to the existence and contents of the bilk The only point for the consideration of the jury was as to its loss ; and he left it to them ' to determine, upon the whole of the circumstances of this •case, whether the loss of the bill had been satisfactorily accounted for, or not ?
    
      And the jury being fully satisfied upon all the points of the case, found upon the copy of the bill and protests, under the notarial seal in Glasgow, the amount of the bill with . , interest and costs.
    The present was, therefore, a motion for a new trial, oti the grounds that the verdict was without evidence and against law, &c.
    Turnbull, for plaintiffs. Chevesf for defendants.
   The court,

after hearing arguments on both sides, was of opinion, that the case was very properly submitted, under all the circumstances of the case, by the presiding judge to the jury, who had found a verdict for the plaintiffs; and as the loss of the original hill was a matter for their consideration, arising from the nature of the evidence offered, and the whole of the case together, the court did not think proper to disturb the verdict.

Rule for new trial discharged.

All the Judges present.  