#### Bank of Tennessee *vs*Smith.

Appeal fkom the TodD Circuit,

*Bills of Exchange, Evidence-.*Assumpsit. *Debt.*

-Assumpsit. *Case*135,

*October*3.

Case stated.

Judge -SiitEsoisr

delivered the opinion of the Court.

This is a *joint*action of assumpsit, brought by the President -and Directors of the Bank of Tennessee, against the drawers and the defendant Smith, as sürviv-ing endorser of a bill of exchange for twenty five hundred dollars, payable four months after date, drawn on Roberts & Williams, of New York, and purchased by the Branch Bank of Tennessee in Clarksville-.

The Court below, having, after the plaintiffs had closed their evidence, instructed the jury as in the case of a non suit, a verdict and judgment Were rendered for the defendant Smith, the suit having been *610previously ¿bated as to'the other defendants, from which *l J*7 ’the'plaintiffs have appealed.

A bill of *ex-*'be presented unpresented ^and dishonored, no-en*6 TMsueh8par■tended Vh¿fá ■responsible.

■A promise to pay ■comes ane^is1 a ■waiver of notice or-an admission that it had been where the büí for?16deueed and not accepted, there is no interence of notice to waiver"'ofeiproof .of nonce byproof ■ or a promise to ■pay-

'‘Before the maturity of the bill, it was presented for acceptance, which was refused. For the purpose of proving notice to Smith, ofitsnOn 'acceptance or the "Waiver of notice by him, the'plaintiffs on the trial, offered as evidence a note for twenty five hundred dollars* executed by the drawers of the bill of exchange, and endorsed by Smith and others, together with proof that the note was presented to the bank in Clarksville, for discount, for the 'purpose 'of paying the bill, after ft bad been dishonored, and that the defendant Smith, expressed a wish to have the note discounted, and the money so applied. This evidence was rejected.

-Although the holder of a bill, payable a given nnmber -of months after its date, is not bound to present it to the drawer for acceptance, until it becomes due, yet ^ ^oes Pr6seiR R for acceptance, and the bill is dishonored, he is bound to give due notice to those whom he intends to hold responsible for its contents: 7. *B. Mon.*17, and cases there cited.

A promise to pay after a bill becomes due, is considered an admission of regular presentment for *payment,*and of due notice, or at least waives the objection that it has not been done. But there is a distinction between the ef- . , , . _ *¡,*feet of a promise to pay, m regard to the inference ot notice, in cases of non payment and non acceptance, where a has been presented for acceptance before it becomes due. In the former case, the party is supposed , _ , *r*, to have known when the bill became dure, and must actually know, or might readily have ascertained, whefhel- or not there ‘had been laches; and, therefore the • . inference arises from a promise to pay, of a regular presentment for *payment,*and of due notice. But in the latter case, the fact of a bill having been presented for acceptance before it falls due, and dishonored, líes peculiarly in the knowledge of the party presenting it, and .there is no inference that a party who promises to pay after the bill falls due, knew of the refusal to accept, or of the neglect togivé notice of such acceptance: *(C kitty on Bills,*538.)

*611Entries made by Clerics and officers oi Banks in the regular course of business, are evidence after the death of the person making them.

If the facts which the plaintiffs offered to prove, are equivalent to a promise to pay, which is somewhat questionable, still as the object'of the testimony was to prove notice of *non*acceptance, and of *non payment,*it was properly rejected by the Court,

To prove due notice of non acceptance, the plaintiffs then introduced an entry in the handwriting of Edward B. Roche, made on the book, of the notice of protest for non acceptance, transmitted by the Notary Public, in the city of New York, who demanded acceptance; showing that due notice of non acceptance had been given to the defendant; and proved that Roche was the Cashier of the Branch Bank located at Clarksville, Tennessee; that it was a part of his regular business to distribute notices of the *protest of*paper belonging to the Bank, and keep memoranda, like the one then adduced, of such facts, and that he was dead. The defendant moved the Court to exclude this evidence. The motion was overruled, and we think the Court did not err in so doing. Such entries made in the 'regular course of business, are competent evidence, after the death of the person by whom they were made: *Welsh*vs *Barret,*(15 *Mass. Rep.*360.) *Nichols*vs *Webb*(8 *Wheaton*326. 1. *Greenleafon evidence*116.)

After the bill was purchased by the Bank, Roche, the Cashier of the Branch at Clarksville, filled up the endorsement of Smith, making it payable to himself or order, and endorsed it in full to Jas. W. Horton, Cashier of the mother Bank, who endorsed it in full to O. J. Camman, the Cashier of the Merchant’s Bank, of the city of New York, to which Bank it wras transmitted for presentation and collection. These endorsements were all upon the bill when it was presented and protested for non acceptance. Before, however, the present suit was brought, the Attorney for the Bank struck out so much of the endorsement by Smith to Roche the cashier, as made the bill payable to the latter, and filled up the endorsement directly to the Bank, striking out at the same time all the subsequent endorsements..

The Court at the instance of the defendant, excluded’ the protest for non acceptance, as evidence from the jury *612on the ground of a variance between the bill sned’ on), and the one described in the protest.

The' filling tip and erasing assignments upon, a bill of exchange endorsed, in blank, is a mattenvithin the-discretion of the holderofthebill: (L8 *John.*320; 3 *Marsh.*158; 3 *Wheat.*172; 1 *Lana.,.*334.).

*H*protest of a-bill of exchange made while it appears by the endorsement, to be the property ot one, is proper testimony when the endorsement is stricken out and it appears to be the property of another, where the identity of the bill appears.

The statute of 1798, (2 *Slat. Law,*249,) au*613thorizes a joint action of debt upon a bill of exchange or note possessing the dignity of a foreign bill of exchange, against drawer, endorser, &e., does not authorize a joint action ef< assumpsit.

*612Where the holder of a bill fills up a blank endorsement, by directing payment to be made to another,, merely for collection, and the agent returns it unpaid, the owner may strike out the transfer, and make the bill payable to himself(18 *Johns.*230.) He may also strike out any subsequent endorsements that have beea. made for the same purpose: *Bell*vs *Morehead,*(3 *Mar.*158.) *Duzan*vs *United States,*(3. *Wheat.*172. 1 *Dana,*334.)

In this case the. bill belonged to the plaintiffs and the endorsement by Roche, and the subsequent, endorsements, were made merely for the purpose of collection y when, therefore, the bill returned dishonored to the possession of the owners, they had » right to strike out these endorsements, and make the bill payable directly to themselves. Having done so, it was correct in setting out the bill in the declaration, to omit altogether those endorsements which had been stricken out. There was no variance between the bill exhibited in evidences-stud the one sued upon.

As the plaintiffs had a legal right to-strike out these endorsements, and1 sure in their own name, they must have had a right to use the pi-otest in evidence,- although it showed endorsements to have been upon the bill.at the time of the protest, which were not on it at the-tirae off the trial.. The right to do the first necessarilyimpli.es. the right to do the latter. Indeed, there is no substantial reason opposed to it. The identity of the bill sued* on, with that described in the protest, was made clearly manifest by the evidence, and nothing more was necessary to render the protest admissible. The endorsements on the bill were stricken out, merely by drawing aline across them with a pen, but were still sufficiently legible, to prove by comparison, the identity of the bill, with the one which had been protested. The protest, therefore, was competent testimony, and should not have been excluded.

Could, however, the plaintiffs maintain, on this bill of exchange, a joint action of assumpsit against the draw*613ers and the defendant, who was an endorser'? By the law merchant, the action must have been several against the drawers and endorser, a joint action against them could not have been maintained. The statute of 1798, (2 *Stat. Laio,*249,) has given a joint action of debt against the drawers and endorsers upon a foreign bill of exchange. But it has been decided that the statute makes a discrimination between foreign bills and those drawn by persons residing in one State, upon others residing in another, and fails to give a joint action in the latter case, leaving the remedy as it existed previous to the passage of the act: *Cresson*vs *Williamson &c.*(1 *Mar.*455.)

Where a note; has been discounted by a.-, bank of a sister' Slate, to authorize in this Stale' a joint action of debt against drawer and endorser, it should1 appear that by the laws of such State, the instrument possesses Ihe dignity of a foreign bill.

When, by the provisions in the charter creating a bank, all bills discounted by it were placed upon the same footing of a foreign bill, as to the right of action and mode of recovery thereon, it has been repeatedly decided by this Court, that a joint action against the parties might, under the act of 1798, be maintained upon a bill of exchange of any description, which had been discounted by the bank. But in this case there was no evidence of any law of the State of Tennessee, that a purchase of a bill by the bank of Tennessee placed it upon the footing of -a foreign bill.

It may be, that at the time the case of *Cresson*vs *Williamson &c.*was decided, bills of this description were regarded as inland, and not as foreign bills, although they are now considered as partaking of the nature, and subject to the rules of the mercantile law applicable to foreign bills: *Rice*vs *Hogan & Thompson,*(8 *Dana,*133;) *Chenowith &*Co. vs *Chamberlain,*(6 *B. Monroe,*60.) The Court, however, in that case, understood and construed the statute as discriminating between this class of bills -of exchange, and those that properly fell within the denomination of foreign bills, and creating a distinction between them as it respected the remedy for their recovery, whether they were to be regarded as belonging to the one class or the other.

But whether, that exposition of the statute be correct or not, we are satisfied that, in giving a joint remedy against the parties by action of debt, the statute does *614n®>t authorize a. joint action of assumpsit. The under* taking of the parties is several and not joint, and* therefore,, at common law^no joint promise being implied, a joint action could not be maintained on a foreign bill of exchange..

No statute of Ky. authorizing a joint action of assumpsit on a bill of exchange, but the action of debt or petition and summons.

*Loughborough*for appellant,? *J.f- W..L. Harlan and TJnclerwood*for appellee-..

This statutory remedy being in derogation of the common, law, mns-t.be strictly' construed: (5 *Monroe,*119? 2./.. *J..Marshall,*148.) The statute expressly prescribes the action of, debt, and does not authorize any other form of action.. The act. of 1837, (3 *Stat. Law,*491,) authorizes a-joint suit,, by petition, against the drawer’s,endorsers and acceptors of. bills of exchange? but no statute authorizes a joint action, of. assumpsit..

The plaintiffs-having misconceived their form of action, the instruction to the juay to find, as in the case of a non-suit,, was correct.. As the suit was brought wrong, and the declaration.upon its face was bad,.the abatement against all.the defendants except Smith,.the surviving endorser,.did not.cure the defeo.t: (2 *Mar.*140? 5 *Monroe,*119.)

Wherefore, the judgment, is affirmed..