Wilson v. Lenox. * 197 by the payment of eight hundred and fifty-five dollars and twenty-three cents." The record which came up contains six bills of exceptions. *1. First. That the defendant Wilson produced in evidence to the jury the accounts of the plaintiffs Lenox and Maitland, against A. and W. Ramsay, the drawers of the bill, whereby the latter were charged as debtors to Lenox and Maitland, on the 22d of August, 1799, for the amount of the bill and damages in dollars and cents, among many other debts and credits, upon which whole accounts current, a balance of 1,095 dollars only appeared to be due from A. and W. Ramsay to Lenox and Maitland; and thereupon prayed the opinion of the court whether, by making the said bill an item of account, as stated in the aforesaid accounts against the said A. and W. Ramsay, the said Wilson was not thereby, as endorsor, discharged; and the court were of opinion that he was not, 2. Second. That the defendant offered to prove that the plaintiffs had received part of the money from the drawers of the bill since the defendant Wilson had notice of the protest, but the court were of opinion that the same, if proved, would not discharge Wilson as endorsor. 3. Third. That the defendant offered to prove by the bill and protest, that after the protest of the said bill, at the request of Roberts, Curtis & Co. the then holders of the bill, it was paid by Dorin, Strange & Co. to Roberts, Curtis & Co. for the honour of Lenox and Maitland, the plaintiffs, and thereupon prayed the opinion of the court, whether, as the bill had been so paid, this action would lie against the defendant as endorsor, and the court gave it as their opinion that it would lie. 4. Fourth. That the defendant prayed the opinion of the court, whether it was not incumbent on the plaintiffs to prove the value of current money received here for the bill upon which this action is brought, which bill is in these words: "Exchange for 300 sterling, Alexandria, 2d January, 1799. Ninety days after sight of this our first of exchange, (second, third and fourth of the same tenor and date unpaid,) pay the order of William Wilson, Esq. the sum of three hundred pounds sterling, for value here received, and place it to account, as advised by Andrew and William to Ramsay." "To Messrs. Findley, Bannatyne & Co. London." And the court gave it as their opinion, that it is not necessary for the plaintiffs *to prove the value given here in current money for the said bill. 5. Fifth. That the defendant offered to prove by the account thereunto annexed that the bill, upon which this suit was brought, was given in the commonwealth of Virginia, either for dollars and cents due in the said commonwealth, from A. and W. Ramsay, to the plaintiffs, or for dollars and cents advanced by the plaintiffs or some other persons for the said A. and W. Ramsay, in the state of New-York, and prayed the opinion of the court, whether, if the said facts were proved to the jury, the said bill ought not to be settled according to its nominal amount as current money of Virginia. Whereupon the court instructed the jury, that if they were of opinion, from the evidence offered, that the bill of exchange was given for any debt due from A. and W. Ramsay, in current money of the commonwealth of Virginia, or for current money advanced and paid for the said bill, and the sum in current money that was paid or allowed for the same is not expressed in the bill, the sum expressed in the bill shall be held and taken as current money of Virginia ; and if, from the evidence offered, they should not be of that opinion, that the sum expressed in the bill shall be taken and held, as so expressed, to wit, in sterling money. 6. Sixth. That the defendant offered to examine William Ramsay, one of the drawers of the bill, to which the counsel for the plaintiffs objected, and the court gave it as their opinion, that the said W. Ramsay was an incompetent witness in the cause. The second, third, fourth and fifth exceptions seem to have been abandoned in the argument in this court. C. Lee, E. J. Lee and Swann, for the plaintiff in error. Simms, for the defendants. The errors insisted on by the counsel for the plaintiff in error were, 1st. The opinion of the court below, as stated in the first bill of exceptions. Wilson V. Lenox, * 198 Wilson V. Lenox, 200 *2d. The rejection of W. Ramsay as a witness. 3d. That there was no protest for non-acceptance of the bill. 4th. That the declaration does not state any demand of payment of the bill, made on the drawees. 5th. The damages are not laid in the same currency as the debt. 6th. The jury have awarded that the sterling debt should be discharged by the payment of 855 dollars and 23 cents. 7th. The debt demanded is not certain. E. J. Lee, for the plaintiff in error. 1st. The court below erred in not instructing the jury that the defendants in error, by charging the bill in ac count against the drawers, in the manner stated in the accounts, had discharged the endorsor. The court ought at least to have left it to the jury to decide whether the circumstances did not amount to a discharge of Wilson. By the account of Lenox and Maitland against the drawers of the bill, it appears that, after charging the amount of the bill, and damages, interest and charges of protest, and turning the amount into dollars and cents at such rate of exchange as the defendants in error pleased, there was only a balance of about 1,000 dollars due to them from the drawers; it is not reasonable that they should recover more than is due to them against an innocent endorsor who must look to insolvent drawers for his indemnification. The defendants have in fact given credit to the drawers for the amount due on the bill, and have agreed to liquidate it in account. If the holder of a bill receives part of the money from the acceptor without giving notice to the drawer, the latter is discharged. Bull. N. P. 275. So if he receives part from the drawer, he discharges the endorsor. Here no notice was given to Wilson; (a) *or if there was, it is waived by the conduct of Lenox and Maitland. In the case of Dingwall v. Dunster, (a) CHIEF J. Does the bill of exceptions state that notice was not given to Wilson? If it does not you cannot argue upon the want of notice. E. J. Lee. It does not. But the declaration does not allege notice of the non-acceptance, nor of the non-payment; but only of the protest for non-payment, and a material fact not averred cannot be presumed to have been proved. Doug. 247. (235.) it is true that Judge Buller says, that nothing but an express agreement can discharge an acceptor, but the court are careful to distinguish between the case of an acceptor and that of a drawer or endorsor. The implication is, that there are many circumstances which will discharge the latter, without an express agreement. The court ought, at least, to have instructed the jury that they might infer a discharge from the circumstances of this case. (a) 2dly. W. Ramsay, the drawer of the bill, ought to have been admitted as a witness. He had no interest which would render him incompetent. The verdict in this case could not have been given in evidence either for or against the witness; and whether Lenox and Maitland recovered against Wilson, or not, he was still liable to an action as drawer, to Lenox and Maitland if they failed against Wilson, or to Wilson, if they succeeded. In the case of Smith, qui tam, v. Prager, 7 Term Rep. 62. the rule is clearly laid down to be, that "no objection could be made to the competency of a witness upon the ground of interest, unless he were directly interested in the event of the suit, or could avail himself of the verdict in the cause, so as to give it in evidence on any future occasion in support of his own interest." The objection only goes to his credit, unless the judgment can be given in evidence for him in any other suit. The same principle is confirmed in the case of Fordaine v. Lashbrooke, 7 Term Rep. 601. where, in a suit between the endorsee and the acceptor of a bill, the payee was called and allowed as a witness to defeat the action, by proving that the bill, although dated at Hamburgh, was in fact drawn in London, and so void for want of a stamp. It may be observed in that case, that it was admitted that there could be no objection on the ground of interest, but the objection relied on was, that the witness ought not to be permitted, from motives of policy as it respected mercantile credit, to impeach a negotiable instrument to which he had assisted in giving currency by his endorsement; (a) CHASE, J. There is no doubt a drawer or endorsor may be discharged in express terms; or by facts amounting to a discharge; but where the discharge is not express but by implication arising from facts, the jury, and not the court, are to decide whether it is a discharge; the court ought not to say it was a discharge. Wilson V. Lenox. * 201 Wilson V. Lenox. * 202 and even that objection was overruled. 3dly. Here was no protest for non-acceptance, nor does the declaration state a demand of payment from the drawees, nor notice of the non-payment, or non-acceptance given to Wilson. The protest for non-payment is not evidence that the money was demanded at the time the bill became payable. 4 Bac. Abr. 735. Gwyllim's edition. In the case of Rushton v. Aspinall, Doug. 679. (653.) it is expressly decided that the plaintiff must allege in his declaration a demand and refusal of the acceptor on the day when the note was payable, and notice thereof to the endorsor before he can be made liable; and that the want of such averments in the declaration is not cured by a verdict. And Lord Mansfield there lays down the rule to be, "that where the plaintiff has stated his title or ground of action defectively, or inaccurately, (because, to entitle him to recover, all circumstances necessary in form and substance to complete the title so imperfectly stated, must be proved at the trial,) it is a fair presumption, after a verdict, that they were proved; but that where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and, therefore, there is no room for presumption." The demand and refusal of the drawee to pay is the very substance of the plaintiff's title to recover; and, therefore, the not setting it forth in the declaration is a total omission of his cause of action. 4th. The damages are not laid in the same currency with the bills and the promise. To support this objection he relied on the decision of the court of appeals of Virginia, in the case of Scott's Executors v. Call, 1 Wash. 115. and Skipwith v. Baird, 2 Wash. 165. (a) CHASE, J. Upon the statute of gaming, usury, and the like, but in no other case, are the drawers, endorsors, &c. competent witnesses. The cases all show it. |