C. Lee, on the same side.

1st. The question to the court below was, whether the plaintiffs by making the bills an item of the accounts, as therein stated, had not discharged the endorsor Wilson The accounts of Lenox and Maitland against the drawers of the bill, begin in 1798 and end in 1800. The bills are entered in account, on the 22d of August, 1799, and charged with interest and damages; and the amount carried out from sterling into dollars and cents, at such rate of exchange as the defendants in error pleased. They have therefore changed the nature of the demand, and given credit to the drawers for a certain sum in the currency of the United States. They have, as far as they were able, manifested their intention to give credit to A. and W. Ramsay.

These circumstances being subsequent to the notice to Wilson, are a discharge in law, and are equivalent to an express discharge. If I am right, the court ought to have instructed the jury that these facts discharged all persons but A. and W. Ramsay. Perhaps the court might have left it to the jury to infer an intention to discharge the endorsor; but the court ought not to have instructed the jury that Wilson was not thereby discharged as endorsor.

2d. The objection to the competency of W. Ramsay as a witness was not good. If he had any interest, it was in favour of the plaintiffs. The objection was made generally, and goes to his proving any fact whatever. A witness may be competent to prove some facts and not others. He was competent to prove, not only that the bill was charged in account, but that it was given up and came surreptitiously to the possession of the plaintiffs, if the fact had been so. I state this only to show that he ought not to have been wholly excluded. On a criminai prosecution for forgery, the party whose name is forged may be a witness. 1 Dall. 110. The doctrine. that a man shall not be permitted to disprove a paper to which he has put his name to give it credit, is overruled in the case of Fordaine v. Lashbrooke, cited from 7 Term Rep. 601. In the case of Walpole v. Pulteney, cited in Doug. 249. (237.) in the note, at the second trial of the cause at Guildhall, at the sittings after Michaelmas term, 1779, before Skynner, Chief Baron, Alexander, the endorsor of the bill, was sworn as a wit

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Lenox.

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Lenox.

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ness for the acceptor, and no objection made to his competency. But in this case there is not any interest whatever in the witness. For if the evidence of Ramsay went to discharge Wilson, still it would not go to discharge Ramsay himself. There is a case also in Espinasse's Reports, in which the acceptor was sworn as a witness in a question between the endorsee and drawer.

Simms, contra.

1st. The charge of the bill in account against the drawers does not amount to a legal discharge of the endorsor. It it neither an express nor an implied discharge. The holder has a remedy against all or any of the endorsors or the drawer, until he gets full satisfaction. If he gives due notice to the party to whom he means to resort, he is not bound to commence suit instanter. If he receives part from the drawer, it is so much to the benefit of the endorsor, and he has no right to complain. Due notice is all that the endorsor has a right to require, and if he does not then secure himself, it is his own fault. The case from Buller's N. P. 275. is not denied to be law; but Buller there says, "if the endorsee give credit to the drawer, without notice to the endorsor, it will discharge him." But here it is admitted that notice was given, and the allegation is, that notwithstanding such notice, the subsequent charge in the accounts of Lenox and Maitland against the drawers has discharged the endorsor.

Lenox and Maitland might have brought suit against the drawers, without prejudice to their claim against the endorsor; à fortiori, the charging a bill in account against the drawers cannot prejudice the claim against the endorsor.

2d. W. Ramsay was offered as a witness generally, *without a release from Wilson. The court were right in rejecting him both on the grounds of interest and of public policy.

If judgment should be rendered against Wilson, Ramsay as drawer would be clearly liable to refund Wilson the costs of suit; and a relief from that liability was a clear interest.

A party to a negotiable paper ought not to be permitted to discredit it.

An underwriter cannot be a witness for another underwriter in an action upon the same policy.

The case in Doug. 247. does not affect the present. The note in 249. is of an ancient case; and there Walpole's own book was produced with a memorandum that Pulteney was discharged from his liability as acceptor.

All the cases cited are where a party to the bill has been admitted as a witness either ex necessitate, or on the ground of public convenience and policy. The case of Fordaine v. Lashbrooke was one where the revenue would have been defrauded of the stamp duty, if the witness had been excluded; and to prevent that evil he was admitted.

In the cases of usury the maker of the note or other security is not admitted unless the debt has been paid. And in the case of forgery, it is a public criminal prosecution in which the injured party is always admitted.

The fault of the declaration, if it does exist, is cured by the verdict under the statute of jeofails of Virginia, which declares, that no judgment after verdict shall be stayed or reversed, for mispleading, insufficient pleading, or for omitting the averment of any matter, without proving which the jury ought not to have given such verdict. Rev. Code, 118. But the averment was not necessary. The declaration contains an allegation that the bill was protested in due form, according to the custom of merchants, for non-payment; and, by the custom of merchants, the bill could not have been protested until demand and refusal of payment.

*But this action is grounded on the act of assembly, and not on the custom of merchants; and by the act it is only necessary that it should be a protested bill of exchange.

As to notice of the non-acceptance and non-payment not being alleged in the declaration, the fact is not so. The declaration alleges that the bill was presented for acceptance, and refused; and afterwards, on the 1st of June, protested in due form according to the customs of merchants for non-payment; of which (that is, of all the facts before recited) the defendant had notice, &c.

As to the damages being laid in current money; this is always done when tobacco, or foreign money, is

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Lenox.

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Lenox.

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sued for. There are some unintelligible cases in the court of appeals of Virginia; but they have never de✩ cided the present point. In one case the court said that if the suit is for a sterling debt, its value must not be laid in current money, because the law of Virginia authorizes an action of debt for sterling money.

Simms, on a subsequent day, stated that a demand of payment was not necessary where the bill was not accepted; and cited Lilly's Entries, 44 and 45. The declaration states the non-acceptance, and the protest for non-payment.(a)

He also mentioned a case in Peake's Rep. where a party to a bill of exchange was refused as a witness; but did not produce the book.

Swann, in reply.

1. The plaintiffs below having assumed a rate of exchange, and charged the amount in account against the drawers, is conclusive evidence of their intention to extinguish the sterling debt.

2. The jury have awarded that the sterling debt should be discharged by the payment of 800 dollars,(b) the balance of the account, therefore, and not the rate of exchange, must have been the guide of the jury.

3. The testimony of Ramsay was not to destroy the paper, but to explain the nature of the consideration; to show that it was given for current money of Virgi nia, so as to bring it within the operation of the 4th section of the act of assembly respecting bills of exchange given for current money due in Virginia. This act applies as well between endorsee and endorsor as between payee and drawer; (c) and if the bill was gi ven for current money due in Virginia, the sum mentioned in the bill is to be taken as current money, and not as sterling.

4. A protest for non-acceptance, and a demand of payment from the drawee, at the time the bill became

(a) CHASE, J. A protest for non-acceptance is absolutely necessary in the case of a foreign bill.

(b) The fact does not so appear in the record.

(c) CHIEF J. The law has been so construed in Virginia.

payable, were requisite to enable the plaintiffs below to recover. Kyd on Bills, 76. 87. It being an action on the statute makes no difference, because the statute gives the action only to such persons as have "a right to demand any sum of money upon a protested bill of exchange." The holder, therefore, must show a right to demand the money, independent of the provisions of the statute; and to ascertain whether he has such a right, we must resort to the custom of merchants, and see whether he has complied with all the requisites of that custom.

5. This is an action of debt; and the demand is uncertain. The debt demanded is the principal, damages, interest and charges of protest, without stating the amount of the charges of protest. The principal is certain, because it is stated to be 300l. and the damages and interest are certain, because the law has ascertained their relative proportion to the principal; but there is nothing in the declaration by which the amount of the charges of protest can be rendered

certain.

6. The damages ought to have been laid in sterling, and not in dollars. The damages follow the nature of the debt. The act of assembly has authorized sterling debts to be sued for and recovered as such. Sterling money is not to be considered as foreign money. 2 Wash. 165. Skipwith v. Baird. The court of appeals of Virginia in *that case decided that the da mages must be laid in sterling.(a)

The court are to fix the rate of exchange; but here the jury have awarded at what sum in current money the sterling debt should be paid, and it is evident that the 800 dollars which the jury said should discharge the debt, is not the exchange, but the balance of account.(b)

(a) CHIEF J. In that case the court spake of the damages which constitute part of the debt in an action under the statute upon a bill of exchange, and not of those damages which are demanded at the end of the declaration for the non-payment of that debt. There is no such decision respecting the latter.

(6) CHASE, J. If you have no law of Virginia authorizing such a judg ment, it is bad, because at common law no condition or alternative can be added to the judgment. It is not a good judgment at common law.

CHIEF J. If it is bad, the defendant cannot complain. It is for his benefit.

Wilson

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Lenox.

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