
    *Wood v. Luttrel et al. Ex’rs of Carr.
    [Thursday, May 10th, 1798.]
    Assumpsit — Endorsee of Bill. — Quaere. If indebitatus assumpsit lies by the endorsee against the endorser of a bill of exchange.
    Evidence — Sufficiency—Case Submitted. — If the jury submit it to the Court, whether evidence annexed to their verdict supports either count in the declaration, and it appears that the plaintiff has not a right to the money claimed, j udgment shall be given against him on the merits, whether the evidence was admissible under that form of declaring or not.
    BUI of Exchange — Notice of Protest. — if the endorsee of a bill of exchange neglects to give timely notice of the protest to the endorser, the latter is discharged. '
    In an action upon the case, brought by Wood against the executors of Carr, the declaration contained two counts: 1st. Indebitatus assumpsit for 501. sterling, of the value of 501. current money, for so much money paid by the plaintiff to the defendant’s testator, at his special instance and request; 2d. For money had and received to the plaintiff’s use. Plea, non assumpsit, and issue. Verdict for 1031. 12s. 3d., “subject to the opinion of the Court, whether the bill of exchange and protest, and the letters of Carr to Wood, hereto annexed, be legal evidence, admissible to the jury, in support of either count in the declaration.” The bill and letters are as follows: The bill is drawn by Leitch, in favor of Carr, upon a house in Scotland, on the 13th _pf September, 1774, for 501. sterling. Carr endorsed the bill to Wood, w’ho endorsed it in blank; and it was protested at the instance of Keppen, (who, in the protest, is called assignee of the bill,) upon the 26th day of January, 1775. On the 12th of September, 1784, CarrJs letter' to Wood acknowledges the receipt óf his letter of the 19th of June last, and . his surprise to hear that the bill was protested, for which he thought payment had been received long before; says, that when he gave Wood the bill, Beitch was in. good circumstances, and continued so till his death; refuses to pay, saying that if he had had timely notice he could have got the money from Beitch, as he had other bills of his, drawn some months after,the plaintiff’s, which were returned protested, and paid off by . Beitch: That the same would have happened with regard to this bill, if it had been returned in time: That, if he can find any of Beitch’s estate, he will endeavor to have it secured for him : But, ■ that. he does not think himself liable in law, equity or justice, for 233 ^payment of the bill. Two other letters in 1784, and 1785, are much to the same effect. The District Court were of opinion, that the evidence did not support either count in the declaration, and gave judgment for the defendant. From which judgment the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The question is, whether the bill, not being declared upon, could be given in evidence upon either of the counts? And I think it may; for, the endorsement is presumptive evidence of money lent by the payee to the drawer. [Tatlock v. Harris,] 3 T. R. 174; [Grant v. Vaughan,] 3 Burr. 1516, 1625. And, ' indebitatus assumpsit will lie against those between whom there is a privity; for instance,' as between the payee and drawer, or the endorsee and his own immediate endorser. Kyd on Bills, 114.
    Washington, for the appellee.
    The question is, if the plaintiff ought to have recovered on the evidence? And I think he ought not. Notice is absolutely necessary to e'nable-the holder to recover, for he is chargeable only in a secondary degree; and, to render him liable, it should appear that the holder looked to him for the money, Kyd, 79; unless the plaintiff can prove that the' drawer had no effects in the hands of the drawee, Kyd, 79, 82. But as to the endorser, notice ought always to be given, because 'he is authorised to endorse, and is sure to sustain a loss if his own endorser or drawer should- fail. Kyd, 83; [Goodall v. Dolley,] 1 T. R. 714. And even as to the drawer, thought he has no effects, still, if for want of notice, he has sustained any injury, it is doubtful if the plaintiff can recover. Kyd, 83; [Rogers v. Stevens,] 2 T. R. 714. Which argument is a fortiori, with respect to the endorser, for the reason already given.
    Perhaps it may be contended, that, supposing those observations correct, still, if it is conceded that indebitatus assumpsit will lie upon a bill against the endorser, and the only question be, whether the bill and letters are legal evidence to support either of the counts in the declaration, that the law will be for the plaintiff up on the point submitted by the jury.
    *That argument, however, can never be allowed, if the testimony,
    referred to by the jury, evidently proves that the plaintiff had no cause of action; and ex aequo et bono ought not to recover. But, there is another answer; for the bill is endorsed in blank by Wood, and. Keppen has it protested, which is tantamount’ to a full endorsement, as it shews his election to take it as endorsee. Consequently, Wood, in order to maintain the present,action, should have had it endorsed back to him by Keppen. But, as the case stands, he has no interest in the bill, for it is payable to order and not .to bearer; and it might have been found by Wood. So, that the argument founded on the éndorsements, as constituting proper evidence on money counts, fails. But, taking Wood as endorsee, he will not .be entitled to recover on money counts; for, there'is no case which says that an indebitatus assumpsit can be brought against the endorser, and the bill be given in evidence. The reasons of the case, as against the drawer, do not apply against the endorser, because' the drawer is liable on account of the consideration paid; for,-he is not responsible to his own payee, unless the bill be drawn for value received. But, it often happens, that a bill is-endorsed merely to give it credit; and, therefore, the custom, by which alone the endorser is liable, without proof of value paid, should be specially set forth; and the plaintiff cannot recover on a general indebitatus assumpsit. For, the gist of that action, is, the consideration which passed.
    Wickham, in reply.
    The-jury have reserved a single point; pnd the only question is, whether the evidence was admissible. For, whether the notice was necessary or not, is no question in the cause; the jury not having found facts, but merely submitted a question of law to the Court. Wherever-there is privity, a general indebitatus assumpsit will lie. 4 Vin. 259; and the endorsement upon the bill of exchange, in the- present case, may be given in evidence, to shew it was for value received. Indebitatus assumpsit will lie against the drawer, he having 235 received the *money. 12 Bac. Abr. [259, Gwil. ed.;] and the endorser is a new drawer. The reason why the acceptor is not liable to indebitatus assumpsit, is, because it is a collateral undertaking; but, in the case of the drawer, there is privity sufficient to maintain the action. [Frederick v. Cotton,] 2 Show. 9; Kyd, 114; Mackie v. Davis, 2 Wash. 219; in this Court; and the letters prove that value was received. In Scott & Donaldson v. Alexander, 1 Wash. 331, in this Court, it was held, that the endorsement has reference to the bill; and the Court said, that the endorser was as if he had been the original drawer. So, that the endorsement follows, the nature of the original bill, and the want o'f the words value received in the endorsement, was an omission of form only, and does not affect the case.
    
      
      Assumpsit — Endorsee of Bill. — See the principal case cited in Bank of U. S. v. Jackson, 9 Leigh 227; Billgerry v. Branch, 19 Gratt. 398.
    
   ROANE, Judge.

This is an action of assumpsit, and the declaration contains two counts; one for money paid by the plaintiff to the defendant’s testator, at his special instance and request; and, the other for money had and received by the testator, to the use of the plaintiff. The plea is non assumpsit, on which the plaintiff took issue, and the jury have found a verdict for the plaintiff for 1031. 12s. 3d. currency, subject to the opinion of the' Court, upon this question, “whether the bill of exchange and protest, and the letters of W. Carr hereto annexed, be legal evidence admissible to the jury, to support either count in the declaration?” The bill referred to in the verdict, was drawn by Andrew Deitch for 501. sterling, on the 13th of September, 1774, payable to W. Carr, for value in currency here received, at sixty days sight, on Cunningham Cobbet, merchant in Glasgow. This bill was endorsed bjr Carr to the plaintiff, on account of a debt then due by the former to the latter, as appears by the letters. Which debt, had been previously secured by his note, as the same letters shew. On the 26th of January, 1775, this bill was protested for nonpayment, as having no advice from the 236 drawer. The letters referred to, *are dated on the 12th and 29th of September, 1784; and, after proving, the consideration of the endorsement as above, they state that a letter of the plaintiff, dated on the 12th of June, then last past, gave him the first information of the nonpayment of the bill, and that Carr considered himself not responsible for the debt, on account of the delay and negligence, which had taken place in that respect.

Upon this testimony, which was produced by the plaintiff, it is submitted by the jury, whether it be legal and admissible evidence to support either count in the declaration.

I lay great stress upon the word support in the verdict; and, therefore, if the Court should be of opinion that the evidence is legal and admissible, as far as it goes, but that some further testimony is wanting to warrant a recovery upon either count in the declaration, judgment cannot be given for the plaintiff upon this verdict.

The particular point now submitted by the jury, and which was much discussed at the bar, is, whether this testimony will warrant a recovery upon the general counts of indebitatus assumpsit in the declaration. But, if there be such a defect in the case submitted, as that a recovery thereon, will not be warranted under any count whatsoever, a decision, upon the point relative to the form of declaring, becomes unnecessary.

The evidence referred to, shews, that there was a lapse of more than nine years between the protest, and notice to the endorser. If this had been the usual and special action upon the bill of exchange, notice of non-payment within a reasonable time, must have been shewn, or the plaintiff could not have recovered; and, surely, the case is not different, when another mode of declaring is resorted to.

It is inseparably incident to the nature of a bill of exchange, that if the endorsee 237 delays for an Unreasonable time to notify the endorser of the non-payment, he thereby discharges him of his responsibility. But, the ground of the action here, is, that the plaintiff advanced money to the testator of the defendant, which, from posterior circumstances, became ex aequo et bono, money received to his use; and, to prove this, he produces in evidence, amongst other ‘hings, the bill endorsed by the testator. But, surely, when the plaintiff took the bill, on account of a pre-existing debt, he undertook to perform all that was necessary to be performed by an endorsee, and is liable for all the consequences of his laches. These consequences, necessarily grow out of the very nature of the transaction, and cannot be eluded by merely varying the form of declaring. At any rate, the complexion of this case is such, as to preclude a recovery, under the equitable form of action now in question; which is brought to recover money, that the plaintiff undertook to receive from another; and, in case of non-payment, to notify the default to the endorser within a reasonable period. But, instead of this, he has lain by for a very unusual time; and, would now throw upon the defendants, the loss of a debt, which, on timely notice, they might most probably have recovered of the drawer of the bill.

I am, therefore, of opinion, that, under the circumstances of this case, the defendant cannot be charged under any form of action, but that he is absolved by the conduct of the plaintiff. Which proposition essentially includes another, namely: that the defendant cannot be charged, on either count of the present declaration.

This view of the subject, upon the defect of evidence in notifying the non-payment to the endorser, within a reasonable time, does not decide a question similar to this in other respects, but where such proof is supplied. Should such a case ever occur, I will give that opinion, on it, which shall seem to me to be right, but I shall forbear to say any thing upon it at present. Because, I think it unnecessary, and that 238 the judgment of the District *Court ought to be affirmed, upon the other reasons which I have mentioned.

CARRINGTON, Judge. It is not necessary to decide as a general question, the point relative to the sufficiency of the testimony to support the counts in the declaration. Eor, upon the papers themselves, I think the plaintiff was not entitled to recover the money under any form of action. Nine years appear to have elapsed, after the protest was made, before any notice of it was given to Carr; and, in the mean time Deitch, who was at first in good circumstances, dies, his estate is wasted, and the money is lost. Under this view of the case, on whom is it most reasonable, that the loss should fall? On Carr, who was an innocent man, guilty of no fault; or, on the plaintiff, whose culpable negligence, and unaccountable delay, has produced^ it? It is one of the first principles of justice, that he whose negligence has occasioned a loss, ought to bear it. But, it was said, that the letters of Carr ought not to be admitted as proof of the loss. Those, who make that objection, would do well to remember, that it was the plaintiff who produced them; and, therefore, he cannot object to the defendant’s making what use of them, he thinks proper. For, they are not to be garbled, but must be taken altogether, and not partially. I am, therefore, extremely clear, that upon the merits of the case, the plaintiff was not entitled to recover. ■

It consequently becomes unnecessary to decide as a general proposition, the question submitted by the verdict. But, if it had been, I might perhaps have thought, (though I give no opinion,) that circumstanced as this case is, the evidence without auxiliary testimony, would not have been entirely free from objection, under either count in the declaration. In Mackie v. Davis, [2 Wash. 219,] and M’Williams v. Smith, [ante, 123,] there were special statements setting forth the 'nature of the demand, besides the common money counts. Which had this, at least, to recommend them, that they gave notice to the defendant, and enabled him to come prepared 239 to ^contest the demand; whereas, the other practice is calculated to surprise and throw him off his guard. However, as before observed, I would not be understood as deciding that question at present, or as meaning to be bound by what I have said with regard to it: Because, it is unnecessary, as I am "perfectly satisfied that no action can be maintained against the defendants, upon these papers.

I, therefore, concur in the opinion, that the judgment should be affirmed upon the merits of the case. For, I shall never be inclined to support the idea, that because the strict words of a finding may apparently confine the verdict to a particular enquiry, a plaintiff, who upon the broad grounds of justice and law, has no title to recover, shall be allowed to take his adversary by surprise, and overthrow an honest defence, b}7 a critical exposition of the unskillful words of a jury.

PENDLETON, President. The question, whether a general indebitatus assumpsit will lie on a bill of exchange, note or bond assigned, as between immediate privies, took up much time in conference, since the counsel on both sides argued it at large, and I have an opinion upon it, but it being unnecessary to decide it in this case, the point is reserved till a case shall arise, where it becomes necessary, and there may be a full Court. At the same time, I cannot forbear to mention, that I do not like this new practice of general counts much, as they tend to surprise the other party, without giving him an opportunity of preparing for a full defence. In England, the usual practice is to insert a special count, and the general money counts are only resorted to, on account of some defect of form in the special count, which avoids the inconvenience of surprise; because, the adverse party has notice from the special count of the matter with which he is charged. Whereas, the general count does not give such notice. This is the stronger in a case against executors, who must necessarily be less acquainted with circumstances, than their testator was himself. In the few instances which have occurred 240 *in this Court, of suits between the assignee and assignor of bonds or notes, the special form has been pursued. Such are Mackie v. Davis, M’Williams v. Smith, and Minnis v. Pollard, [ante, 226].

But, what is the case before the Court? Here, upon an indebitatus assumpsit, papers are offered in evidence to support the issue, which do not shew the plaintiff to be entitled in any form of action.

The papers are a bill drawn in September, 1774, by Leitch, in favor of Carr, and by him endorsed and remitted to Wood; protested in January, 1775; of which no notice is given to Carr, until September, 1784, above nine 37ears afterwards. By this neglect, Carr’s responsibility, as endorsee, was at an end: And does he revive it by any promise to pay or acknowledgment of the debt? On the contrary, he positive^7 refuses payment; and, for a good reason too, that by the dela3r he had lost his remedy against the drawer; solvent at the time of the protest, but then become insolvent.

Wood thus warned, lies by till 1792, eight years longer, and seventeen years from the date of the protest, when, Carr being dead, he brought this suit against his executors, as a chance of recovering, from their ignorance of the transaction, an unjust demand; and, by the general indebitatus assumpsit concealing the real case, so as to better the chance by' surprise. In the language of Lord Kenyon in the case of Stedman v. Gooch, Espin. Rep. 3, I consider the documents as mere waste paper, and think the District Court very properly decided, that they were not legal evidence. Of course, the judgment must be affirmed.

Judgment affirmed.  