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  • The general errors being assigned, and issue being joined on the plea in nullo est erratum, the cause was argued by Lee, the Attorney General, Howell (of Rhode-Island) and Ingersoll, for the Plaintiff in error; and by E. Tilghman, Dexter (of Massachusetts) and Robbins (of Rhode-Island) for the Defendant in error. On opening the case, Howell observed, that it was necessary, he presumed, to call on the Judge, who presided at the trial, to acknowledge his seal affixed to the bill of exceptions. ELLSWORTH, Chief Justice. The bill of exceptions is part of the record, and comes up with it. For that reason, the acknowledgment of the Judge's seal is unnecessary. But if the bill of exceptions had not been tacked to the record, such an acknowledgment might have been proper. See Bull, N. P. 317, 319. The cause was tried by Judge CUSHING, but the District Judge BROWN having been originally of counsel for the Defendant, did not fit. For the Plaintiff in error, the following points were urged, and supported by the corresponding authorities: — 1st. That the bills of exchange mentioned in the declaration, were laid before the Jury, without a protest for non-acceptance, or any proof that they were so protested. Lov. on Bill. 176. Bull. N.P. 273. 1 T. Rep. 167. Lov. 81. 3. Bac. Abr. 613. 2 Gord. Univ. Acc. 363. Bull. N.P. 270. Lov. 81. 76. 7. 10 Stat. at Large p. 11 St. at L. 106. 5 Burr. 2671. 2. 8. Mod. 80. 1 Salk. 131. Kid. 137. 140. 151. 2 T. Rep. 713. On Howell's stating this point, the CHIEF JUSTICE remarked, that it was proper to apprise the counsel, that in the case of Brown vs. Barry, ant. 365. the same question had been agitated and decided: but Howell representing, that he thought there was a distinction between the case of Brown vs. Barry, where the Indorsee sued the Drawer of a bill; and the present case, where the Indorsee sues the Indorser; THE COURT declared they were willing to hear the argument, though the distinction did not strike them as material. Howell then endeavoured to support the distinction, on the ground, that a Drawer may not be injured by the non-acceptance, as in the case of his not having assets in the hands of the Drawee, but that an Indorser could not be in that predicament, as a second Indorser might resort to the first, and every Indorser may resort to the Drawer upon the non-acceptance of the Drawee. Lov. on Bills. 176. 2nd. That the Court below, gave it in charge to the Jury, that the letters written by Clerk and Nightingale, amounted to a guarantee of any engagement, into which Robert Murray Co. might enter with the Plaintiff: whereas the letters did not import such a guarantee; there was no other written evidence of it before the Jury; and a collateral undertaking to pay the debt of another, must be in writing agreeably to the English Statute of Frauds, (29. Car. 2. c. 3.) which is in force in Rhode-Island. Cowp. 227. For any mistake of a Judge, in his directions or decisions upon a trial, a bill of exceptions may be tendered. 3 Bl. C. 372. Reg. Bre. 282. 2 Inst. 287. Even before the statute of Frauds, if any contract was made in writing, the writing must be produced; and its contents could not be proved by parol testimony, on the general principle, that the best evidence of which the case is susceptible, must be given. Esp. 780. 1. But since the statute, a promise, like the one now alleged, can only be made in writing. 3 Woodes, 420. 1. 2. 4 Bl. Com. 439. The letters do not contain evidence of such a promise. They are not in form, letters of credit, which are a species of bills of exchange, are always confined to money transactions, and invariably include a direct and positive undertaking to repay the money, which shall be advanced. Beawes. L.M. 447. 8. Jacob's L.D. "Letters of credit." Marius 81. 2. And, in substance, the letters are nothing more than letters of friendly introduction. The Court and not the Jury are to construe all deeds and written instruments. 1 T. Rep. 172. If when an opinion is declared of the solvency of their friends, there had been any deception, an action in the nature of deceit would lie; 3 T. Rep. 51. Peake's N.P. 226.; but there is no such imputation here, and the words do not import a promise. 1 Vin. Abr. 261 1 Roll. Abr. 6 Noy. 11. 2 Com. Rep. 558. Case 237 Nor is there any equity against the Plaintiff in error; for, the obligation of a surety is always strictly construed according to the letter of his engagement. 2 T. Rep. 266. 366 Yelv. 40. 1. Peahe's N.P. 226. Esp. Rep. 290. Besides, notice ought to have been given by Russel to Clerk and Nightingale, if he made any advances on account of the letters; and the mere finding of the assumpsit will not let in a presumption that such a notice was given. Marius 85. Esp. 290. 442. The first Count is a special Count, and must be proved as it is laid; Doug 24. But as those letters would apply as well to any other speculation, as to the indorsement of the bills of exchange, the special Count is no notice of the contract given in evidence. The Plaintiff should have stated in the declaration all the inducements, should have set forth the letters, should have averred, that Russel was the agent of Clerk and Nightingale, and that in consideration of their request, the bills had been indorsed. But the declaration does not even aver, that they ever made the request, in consideration of which the bills were indorsed. Doug. 659. 3d. That the promise alledged to be made in the letters of Clerk and Nightingale, ought not to have been explained by parol testimony: for such testimony is not admissible to explain a deed, or any written instrument.fn_ 2 Bl. Rep. 1249 1 Esp. 780. 3 Wil. 275. Ca. temp. Talb. 240. 3 T. Rep. 474. 6 T. Rep. 671. Doug. 24. 2 Roll. Abr. 276. 1 Alk. 13. Pow. Cont. 277. 290. New Annual Register 1795. Day vs. Barker et al. Pow. Cont. 373. 1 P. Wm. 618. Pow. Mort. 61. Pow. Cont. 431. 2 Atk 384. 1 Br. Ch. 90. Gilb, L. of E. 5. 6. 112. 3 Woodes. 327. 8. 1 Br. Ch. 54. 93. 4. 2 Bl. Rep. 1249. 1250. 1 T. Rep. 180. 1. 2. Bull. N.P. 269. 280. Yelv. 40. 2 Vez. 56. 232. For the Defendant in error, it was answered, — 1st. That there was no necessity to produce, or to prove, a protest for non-acceptance of the bills of exchange. 3 Dall. Rep. 365, 344. 2nd. That even admitting the letters of Clerk Nightingale to be part of the record (which, however, was contested) the decision of the court below was right; for, on a just construction of their contents, they import a promise, or guarantee; and the terms of the letters ought to be taken most strongly against the writer. 1 Bac. Abr. 168. 2 T. Rep. 366. 3d. That the parol evidence at the trial was properly admitted. The bill of exceptions states, that the evidence passed to the jury without exception, the counsel only objecting, afterwards, to its applicability. Where objectionable evidence is given, and not objected to, but admitted by the Defendant's counsel, it is no ground for a bill of exceptions. The applicability of the evidence to the letters, was a matter of fact for the Jury, not the court, to determine; and on that point the court said nothing, though they were of opinion, that the written promise might be explained by parol testimony. What the testimony was, does not appear:fn_ nor does it appear that the Court was of opinion, that the promise might be explained by the parol testimony, specifically, whose applicability the counsel denied, though the Jury have found that it did apply. 3 Salk. 373. Bull. N P. 317. Where the parol testimony was given, without objection, how could the court interfere? It must operate with the Jury, and the party confented that it should operate, by allowing that it should be delivered, without objection. It does not appear, indeed, that the statute of frauds was insisted on; and, certainly, it is not necessary to state a written promise in the declaration. 1 T. Rep. 451. Bull. N.P. 279. 2 Jones 158. Nor will the Court apply the statute to the case, if the party does not. Peake 15. But even where the statute has been pleaded, parol testimony has been attended to, in explanation of written contracts. Skin. 142. 3. 2. Vent. 361. Esp. 780. If, however, the construction of the letters is correct, on the part of the Defendant in error, the bare declaration of the Court below, that parol testimony might explain them, will not invalidate his right of recovery: and this Court will not reverse a judgment rendered upon conclusive evidence, appearing on the record, though improper evidence may afterwards have been admitted. The general rule is, that parol testimony is admissible to explain, though not to contradict, a writing. Thus, it has been admitted, in consistence with the writing, to shew a consideration other than that, which the deed itself expressed; 3. T. Rep. 474. to explain a certificate of a Pauper's settlement; 7. T. Rep. 609. 2. Bl. Rep. 1250. to shew whether a cellar was comprehended within a lease; 1. T. Rep. 701. to explain a Will; 2. Vez. 216. and to prove a mistake in an agreement 1 Vez. 456. It has been admitted to shew declarations at, and after, the writing; 1 Cha. Ca. 180. 1 Dall. Rep. 193. 426. 1 Atk. 448. 2 Dall. Rep. 171. 173. 196. to ascertain a fact under a Will; 2 Dall. Rep. 70. to rebut an equity; to prove legacies augmented, not repealed; 1 Bro. Ch. 448. 2. Br. Ch. 521. to prove the advancement of a sum of money to be an ademption of a legacy; 2 Atk. 48. 3 Atk. 77. 8. 2 Bro. Ch. 165. 519. 20. 21. 2 Vez. 28. and to prove the intention of the father, as to the mode of education, on a devise of guardianship. 2 Vez. 56. It is admitted in cases of resulting trusts; and constantly in mercantile contracts. 2 Vez. 331. In fine, the statute speaks, not only of the contract being in writing, but of some note or memorandum of the contract; and, therefore, any memorandum in writing of the intent of the parties (such as the letters in question) will serve to take the case out of the statute.
Judges
  • Oliver Ellsworth
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  • The general errors being assigned, and issue being joined on the plea in nullo est erratum, the cause was argued by Lee, the Attorney General, Howell (of Rhode-Island) and Ingersoll, for the Plaintiff in error; and by E. Tilghman, Dexter (of Massachusetts) and Robbins (of Rhode-Island) for the Defendant in error. On opening the case, Howell observed, that it was necessary, he presumed, to call on the Judge, who presided at the trial, to acknowledge his seal affixed to the bill of exceptions. ELLSWORTH, Chief Justice. The bill of exceptions is part of the record, and comes up with it. For that reason, the acknowledgment of the Judge's seal is unnecessary. But if the bill of exceptions had not been tacked to the record, such an acknowledgment might have been proper. See Bull, N. P. 317, 319. The cause was tried by Judge CUSHING, but the District Judge BROWN having been originally of counsel for the Defendant, did not fit. For the Plaintiff in error, the following points were urged, and supported by the corresponding authorities: — 1st. That the bills of exchange mentioned in the declaration, were laid before the Jury, without a protest for non-acceptance, or any proof that they were so protested. Lov. on Bill. 176. Bull. N.P. 273. 1 T. Rep. 167. Lov. 81. 3. Bac. Abr. 613. 2 Gord. Univ. Acc. 363. Bull. N.P. 270. Lov. 81. 76. 7. 10 Stat. at Large p. 11 St. at L. 106. 5 Burr. 2671. 2. 8. Mod. 80. 1 Salk. 131. Kid. 137. 140. 151. 2 T. Rep. 713. On Howell's stating this point, the CHIEF JUSTICE remarked, that it was proper to apprise the counsel, that in the case of Brown vs. Barry, ant. 365. the same question had been agitated and decided: but Howell representing, that he thought there was a distinction between the case of Brown vs. Barry, where the Indorsee sued the Drawer of a bill; and the present case, where the Indorsee sues the Indorser; THE COURT declared they were willing to hear the argument, though the distinction did not strike them as material. Howell then endeavoured to support the distinction, on the ground, that a Drawer may not be injured by the non-acceptance, as in the case of his not having assets in the hands of the Drawee, but that an Indorser could not be in that predicament, as a second Indorser might resort to the first, and every Indorser may resort to the Drawer upon the non-acceptance of the Drawee. Lov. on Bills. 176. 2nd. That the Court below, gave it in charge to the Jury, that the letters written by Clerk and Nightingale, amounted to a guarantee of any engagement, into which Robert Murray Co. might enter with the Plaintiff: whereas the letters did not import such a guarantee; there was no other written evidence of it before the Jury; and a collateral undertaking to pay the debt of another, must be in writing agreeably to the English Statute of Frauds, (29. Car. 2. c. 3.) which is in force in Rhode-Island. Cowp. 227. For any mistake of a Judge, in his directions or decisions upon a trial, a bill of exceptions may be tendered. 3 Bl. C. 372. Reg. Bre. 282. 2 Inst. 287. Even before the statute of Frauds, if any contract was made in writing, the writing must be produced; and its contents could not be proved by parol testimony, on the general principle, that the best evidence of which the case is susceptible, must be given. Esp. 780. 1. But since the statute, a promise, like the one now alleged, can only be made in writing. 3 Woodes, 420. 1. 2. 4 Bl. Com. 439. The letters do not contain evidence of such a promise. They are not in form, letters of credit, which are a species of bills of exchange, are always confined to money transactions, and invariably include a direct and positive undertaking to repay the money, which shall be advanced. Beawes. L.M. 447. 8. Jacob's L.D. "Letters of credit." Marius 81. 2. And, in substance, the letters are nothing more than letters of friendly introduction. The Court and not the Jury are to construe all deeds and written instruments. 1 T. Rep. 172. If when an opinion is declared of the solvency of their friends, there had been any deception, an action in the nature of deceit would lie; 3 T. Rep. 51. Peake's N.P. 226.; but there is no such imputation here, and the words do not import a promise. 1 Vin. Abr. 261 1 Roll. Abr. 6 Noy. 11. 2 Com. Rep. 558. Case 237 Nor is there any equity against the Plaintiff in error; for, the obligation of a surety is always strictly construed according to the letter of his engagement. 2 T. Rep. 266. 366 Yelv. 40. 1. Peahe's N.P. 226. Esp. Rep. 290. Besides, notice ought to have been given by Russel to Clerk and Nightingale, if he made any advances on account of the letters; and the mere finding of the assumpsit will not let in a presumption that such a notice was given. Marius 85. Esp. 290. 442. The first Count is a special Count, and must be proved as it is laid; Doug 24. But as those letters would apply as well to any other speculation, as to the indorsement of the bills of exchange, the special Count is no notice of the contract given in evidence. The Plaintiff should have stated in the declaration all the inducements, should have set forth the letters, should have averred, that Russel was the agent of Clerk and Nightingale, and that in consideration of their request, the bills had been indorsed. But the declaration does not even aver, that they ever made the request, in consideration of which the bills were indorsed. Doug. 659. 3d. That the promise alledged to be made in the letters of Clerk and Nightingale, ought not to have been explained by parol testimony: for such testimony is not admissible to explain a deed, or any written instrument.fn_ 2 Bl. Rep. 1249 1 Esp. 780. 3 Wil. 275. Ca. temp. Talb. 240. 3 T. Rep. 474. 6 T. Rep. 671. Doug. 24. 2 Roll. Abr. 276. 1 Alk. 13. Pow. Cont. 277. 290. New Annual Register 1795. Day vs. Barker et al. Pow. Cont. 373. 1 P. Wm. 618. Pow. Mort. 61. Pow. Cont. 431. 2 Atk 384. 1 Br. Ch. 90. Gilb, L. of E. 5. 6. 112. 3 Woodes. 327. 8. 1 Br. Ch. 54. 93. 4. 2 Bl. Rep. 1249. 1250. 1 T. Rep. 180. 1. 2. Bull. N.P. 269. 280. Yelv. 40. 2 Vez. 56. 232. For the Defendant in error, it was answered, — 1st. That there was no necessity to produce, or to prove, a protest for non-acceptance of the bills of exchange. 3 Dall. Rep. 365, 344. 2nd. That even admitting the letters of Clerk Nightingale to be part of the record (which, however, was contested) the decision of the court below was right; for, on a just construction of their contents, they import a promise, or guarantee; and the terms of the letters ought to be taken most strongly against the writer. 1 Bac. Abr. 168. 2 T. Rep. 366. 3d. That the parol evidence at the trial was properly admitted. The bill of exceptions states, that the evidence passed to the jury without exception, the counsel only objecting, afterwards, to its applicability. Where objectionable evidence is given, and not objected to, but admitted by the Defendant's counsel, it is no ground for a bill of exceptions. The applicability of the evidence to the letters, was a matter of fact for the Jury, not the court, to determine; and on that point the court said nothing, though they were of opinion, that the written promise might be explained by parol testimony. What the testimony was, does not appear:fn_ nor does it appear that the Court was of opinion, that the promise might be explained by the parol testimony, specifically, whose applicability the counsel denied, though the Jury have found that it did apply. 3 Salk. 373. Bull. N P. 317. Where the parol testimony was given, without objection, how could the court interfere? It must operate with the Jury, and the party confented that it should operate, by allowing that it should be delivered, without objection. It does not appear, indeed, that the statute of frauds was insisted on; and, certainly, it is not necessary to state a written promise in the declaration. 1 T. Rep. 451. Bull. N.P. 279. 2 Jones 158. Nor will the Court apply the statute to the case, if the party does not. Peake 15. But even where the statute has been pleaded, parol testimony has been attended to, in explanation of written contracts. Skin. 142. 3. 2. Vent. 361. Esp. 780. If, however, the construction of the letters is correct, on the part of the Defendant in error, the bare declaration of the Court below, that parol testimony might explain them, will not invalidate his right of recovery: and this Court will not reverse a judgment rendered upon conclusive evidence, appearing on the record, though improper evidence may afterwards have been admitted. The general rule is, that parol testimony is admissible to explain, though not to contradict, a writing. Thus, it has been admitted, in consistence with the writing, to shew a consideration other than that, which the deed itself expressed; 3. T. Rep. 474. to explain a certificate of a Pauper's settlement; 7. T. Rep. 609. 2. Bl. Rep. 1250. to shew whether a cellar was comprehended within a lease; 1. T. Rep. 701. to explain a Will; 2. Vez. 216. and to prove a mistake in an agreement 1 Vez. 456. It has been admitted to shew declarations at, and after, the writing; 1 Cha. Ca. 180. 1 Dall. Rep. 193. 426. 1 Atk. 448. 2 Dall. Rep. 171. 173. 196. to ascertain a fact under a Will; 2 Dall. Rep. 70. to rebut an equity; to prove legacies augmented, not repealed; 1 Bro. Ch. 448. 2. Br. Ch. 521. to prove the advancement of a sum of money to be an ademption of a legacy; 2 Atk. 48. 3 Atk. 77. 8. 2 Bro. Ch. 165. 519. 20. 21. 2 Vez. 28. and to prove the intention of the father, as to the mode of education, on a devise of guardianship. 2 Vez. 56. It is admitted in cases of resulting trusts; and constantly in mercantile contracts. 2 Vez. 331. In fine, the statute speaks, not only of the contract being in writing, but of some note or memorandum of the contract; and, therefore, any memorandum in writing of the intent of the parties (such as the letters in question) will serve to take the case out of the statute.
Judges
  • Oliver Ellsworth
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CLARKE versus RUSSEL.

IN Error from the Circuit Court, for the District of Rhode-Island. On the return of the Record, it appeared that a declaration, containing the following Count, had been filed in an action brought by " Nathaniel Russel of Charleston, in the District of South-Carolina, merchant and citizen of the State of South-Carolina, against John Innes Clarke of Providence, in the County of Providence and District of Rhode-Island, merchant and citizen of the State of Rhode-Island, and surviving partner of the company of Joseph Nightingale, now deceased, and the said John Innes Clarke, heretofore doing business under the firm of Clarke and Nightingale."

Ist Count. "That the said John Innes Clarke and Joseph " Nightingale, then in full life, on the 10th day of March 1796, "at the District of Rhode-Island, in consideration that the "Plaintiff would at the special instance and request of the "said Joseph and John Innes, indorse seven several setts of "bills of Exchange, of the date, tenor, and description as set "forth in the annexed schedule, drawn by a certain Jonathan " Russel, who was agent and partner in that particular of "the company of Robert Murray and company, of New-York, "in the District of New-York, on themselves assumed, "and to the Plaintiff faithfully promised, that if the said bills "should not be paid by the person on whom the same were "drawn, and the Plaintiff, in consequence of such endorsement "should be obliged to pay the same bills, with damages, "costs, and interest thereon, they the said Joseph and John " Innes would well and truly pay to the Plaintiff the amount "of the said bills, damages, and costs, and interest, if the Drawer "of said bills did not pay the same to the said Plaintiff. "And the said Plaintiff in fact faith that in consideration of, "and trusting to, the said assumption and promise, he did indorse "the said bills: and the said Plaintiff further in fact faith that "the person, on whom the said bills were drawn, did not accept, "or pay the said bills, but that the said bills were, in due "form of law, protested for non-payment, of which non-payment "and protest, notice was given in due form of law to the "drawer thereof, and also to the Plaintiff, to wit, on the 13th "day of September, 1796, at said District of Rhode-Island, by "reason whereof, in consequence of said indorsement, the "Plaintiff was obliged to pay the said bills, with damages, costs "and interest thereon, amounting to £.4744, 13, 1. sterling "money of Great Britain, equal in value to 20,338 dollars "and 52 cents, and actually did pay the sum of money last "mentioned, in discharge of the said bills, before the commencement "of this suit, to wit, on the said 13th day of September, "1796, at the District of Rhode-Island, aforesaid, of "which the drawer of the said bills, on the day, and year, and "at the District last aforesaid had notice, and the said drawer "was then, and there requested by the Plaintiff to pay to "him the sum of money last aforesaid, which he, the said drawer, "refused to do, of all which the said Joseph and John Innes, "afterwards, to wit, on the day and year last aforesaid, at the "District aforesaid, had notice. Nevertheless, c."

The Defendant pleaded non assumpsit; and thereupon issue was joined. On the trial the Jury found for the Plaintiff on the first Count, with 22,839 dollars and 80 cents damages; and for the Defendant on all the other Counts in the declaration. On this verdict judgment was rendered; but the Defendant having filed a bill of exceptions, brought the present Writ of Error. The bill of exceptions was founded on the following reasons, which it set forth at large:

1st. That upon the trial of the issue "the Counsel learned "in the law for the said Nathaniel Russel to maintain and "prove the said issue, offered in evidence the aforesaid foreign "bills of exchange, with protests for non-payment, but without "any protests for non-acceptance of the same, or of any "of them."

2d. That "the said Counsel also contended, and insisted before "the Jury, that two letters of Clarke and Nightingale, "directed to the Plaintiff, and dated January 20 th, and 21 st "1796, did import an engagement, or promise by the said, " Clarke Nightingale to the Plaintiff, that the said Robert " Murray Co. would fully comply with any contracts or engagements "they might make with the Plaintiff.

3d. That "the said counsel also contended and insisted be-before "the Jury, that parol testimony is allowable by law to "explain said written promise, or engagement, expressed in "said letters."

"But the counsel for the said John Innis Clark, before said "court did object against said bills of exchange, as evidence in "said case, by reason that the same, or any of them, did not appear "to have been protested for non-acceptance: And did "insist before the Jury, that the said letters did not import any "promise or engagement by the said Clerk Nightingale, to "the Plaintiff that the said Robert Murray Co. would fully "comply with any contract or engagements they might make "with the Plaintiff: And that the promise or engagement, by "the Plaintiff attempted to be proved to be made by the said " Clerk and Nightingale with the Plaintiff in the said letters, "ought not to be explained by parol testimony, which had passed "to the jury without objection thereto by the said counsel, "they only objecting afterwards to its applicability to the said "written evidence of the said promise in the said letters.

"And the Justice who tried the said causefn_, did then and "there deliver his opinion to the jury aforesaid, that said "foreign bills of exchange ought to be admitted and pass in evidence "before the said jury in said case, without any protest "for non-acceptance: And the said justice did, also, declare "and deliver his opinion to the said jury, that the said letters "of Clerk Nightingale, directed to the plaintiff, and dated "the 20th and 21st days of January, 1796, did import an engagement "or promise by the said Clerk Nightingale, to the "Plaintiff, that the said Robert Murray Co. would fully "comply with any contract or engagements they might enter "into with the Plaintiff: And the said Justice did then and "there declare that the said written promise, by the Plaintiff "attempted to be proved with him by the said Clerk Nightingale, "by said letters of 20th and 21st January, 1796, to "have been made, might be explained by parol testimony."

The letters, on which the action was founded, were expressed in the following words: Providence, 20th January, 1796.

NATHANIEL RUSSELL, ESQ.

DEAR SIR,

OUR friends Messrs. Robert Murray Co. merchants in New-York, having determined to enter largely into the purchase of rice and other articles of your produce in Charleston, but being entire strangers there, they have applied to us for letters of introduction to our friends. In consequence of which, we do ourselves the pleasure of introducing them to your correspondence, as a house, on whose integrity and punctuality the utmost dependance may be placed. They will write you the nature of their intentions, and you may be assured of their complying fully with any contracts or engagements they may enter into with you. The friendship we have for these gentlemen induces us to with you will render them every service in your power, at the same time we slatter ourselves this correspondence will prove a mutual benefit.

We are, with Sentiments of esteem,

Dear Sir,

Your most Obedient Servants,

CLERK NIGHTINGALE.

Providence, 21st January, 1796.

NATHANIEL RUSSELL, ESQ.

DEAR SIR,

WE wrote you yesterday a letter of recommendation in favor of Messrs, Robert Murray, Co. We have now to request that you will endeavour to render them every assistance in your power Also that you will immediately on the receipt of this, vest the whole of what funds you have of ours, in your hands, in rice, on the best terms you can. If you are not in cash, for the sales of china and hankeens perhaps you may be able to raise the money from the bank till due, or purchase the rice upon a credit till such time as you are to be in cash for them. The truth is, we expect rice will rise; and we want to improve the amount of what property we can muster in Charleston, vested in that article at current price. Our Mr. Nightingale is now at Newport, where it is probable we shall write you on the subject.

We are, c.

CLERK NIGHTINGALE.

It appeared upon the record, that William M' Whaun, being examined as a witness under a commission, testified, among other things, that in a conversation with Joseph Nightingale, the deceased partner, after the bills of exchange had been protested, Joseph Nightingale declared to the deponent, that "there "could be no doubt but that the Defendants, Clerk and Nightingale, "must fee the Plaintiff, Nathaniel Russel, secured." But the Defendant applied to put off the cause in the Court below, on account of the absence of a material witness, and filed an affidavit stating, that "he believed the witness would testify, "that he was present at the conversation mentioned in W. M' "Whaun's examination, upon the request of Nightingale: but "nothing of the import suggested by M' Whaun then passed." The Court declared, that the cause should be continued on this application, unless the Plaintiff agreed that the fact alleged in the Defendant's affidavit, should be considered upon the trial as proved, to every purpose, which it could effect, were the witness present; and the agreement was accordingly entered into.

The opinion of the Court, after some days deliberation, was delivered by the Chief Justice, in the following terms.

ELLSWORTH, Chief Justice.

This cause comes up on a bill of exceptions, on the face of which three exceptions appear.

1. First, that bills of exchange, which had been non-accepted, and protested for non-payment, were admitted in evidence unaccompanied by protests for non-acceptance.

According to a general rule, laid down by this Court, in the case of Barry and Brown, from Virginia, and from which rule there appear no special circumstances to exempt the present case, this exception will not hold.

2. A further exception is, that the Judge in his charge to the Jury, held, that the two letters from the Defendants to the Plaintiff below, of the 20th and 21st of January 1796, which were set up to prove an undertaking, or guarrantee, might be explained by parol testimony; of which kind of testimony some had passed to the jury, without objection, but for what purpose does not now appear, as there were divers Counts, some of which parol testimony might have supported.

The undertaking declared upon, in the Count, to which the verdict applies, being for the duty of another, it must, to save it from the statute of frauds, and perjuries, be in writing, and wholly so. The two letters, therefore, which are relied upon as the written agreement, cannot be added to, or varied, by parol testimony. Nor can they be so far explained by parol testimony, as to affect their import, with regard to the supposed undertaking. The charge then, of the Judge, that "they might be explained by parol testimony," expressed as a general rule, and without any qualifications, or restrictions, was too broad; and may have misled the jury. On this ground there must be a reversal.

3. It is, therefore, unnecessary to decide the remaining question — Whether the two letters did, of themselves, import an undertaking, or guarrantee? It may be proper to suggest, however, that a majority of the Court, at present, incline to the opinion that they do not.

I have understood, that the CHIEF JUSTICE, and CUSHING Justice, were for the affirmative; and IREDELL, PATERSON, and WASHINGTON, Justices, were for the negative, answer, on the third question.

Judgment reversed, and a Venire de novo awarded.

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CLARKE v. RUSSEL
(Feb 1, 1799)