#### JOHN D. GORDON vs. GEORGE PRICE.

In an action upon a bill of exchange, the evidence of a witness, who cannot swear to the hand-writing of either party of the firm, in whose name the bill was drawn, but who testifies, that, in his opinion, the hand-writing was the same as that of many notes, he had presented to the firm and which had been paid by them, was competent, and it was proper to leave such evidence to the jury, tobe judged of by them.

By the law merchant, a protest of a bill by a public notary is, in itself, evidence. And by our Statute, Rev. Stat. ch. 13, sec. 10, such protest Is prima facie evidence.

"Where a bill has been drawn by A. upon B., in favor of C., and is protested for non payment, the acceptance by C. of another bill from B, unless it is expressly understood that this is to be a satisfaction of the debt dne by A, does not debar C. of his action against A. upon the original billj provided the bill of B. is dishonored. But it is necessary, for C., in his suit upon the original bill, to shew that he used proper diligence on the second bill and could not obtain payment.

The cases of Pope v. Askew, 1 Ire. 16, and State v. Harris, 5 Ire. 287, cited and approved.

Appeal from the Superior Court of Law of Chowan County, at the Spring Term 1849, his Honor Judge Manly presiding.

The action is assumpsit by the payee of a bill of exchange for $500, purporting to be drawn at Edenton in this State by George Price & Co., on Thomas McAdam & Co , of New York, on the 11th of November 1844, and payable at sight, and it was tried on non-assumpsit, and satisfaction pleaded.

The firm of George Price & Co,, was composed of George Price, the defendant, and one Daniel Messmore, and, at and before the drawing of the bill, did business in Edenton. To establish the drawing oí the bill, a witness *386for the plaintiff deposed, that ho knew the hand-writing of the defendant, and that the signature to the bill was not written by him ; that he had never seen the other partner, M'essmore, write, and he could not say, whether he signed the bill or not ; but that he was a constable in Edenton, while George Price & Co. did business there, and had frequently received for collection notes in their name, which he presented at their place of business, and that they were paid by the firm ; and that the bill sued on and those netes-were in the same hand-writing. This evidence was objected to on the part of the defendant, but was received.

The plaintiff further offered in evidence a protest of the bill, made on the IGth of November 1841, for non payment, purporting to be under the signature and seal of a notary in New York. On the part of the defendant, it was insisted, that it could not be received without proof of the hand-writing and official character of the person professing to be a notary. But the Court allowed it to be read to the jury.

On the part of the defendant evidence was then given, that the plaintiff lived in Norfolk in Virginia and cashed the bill there at the request of one McAdam of that place, who carried it to him for that purpose ; and that, upon the return of the bill protested and information thereof to McAdam, he offered the plaintiff a bill drawn by “McAdam & Brother,” of Norfolk, on “Thomas McAdam &

. Co.” of New York, and payable to one Gray, for the amount then duo on the bill sued on, and endorsed by Gray to the plaintiff, and that the plaintiff received the same. Thereupon the plaintiff gave evidence, that the bill last mentioned was not paid at maturity, but protested for non payment ; and that, upon the return of it, the plaintiff recovered judgment thereon against Gray, but was unable to obtain satisfaction thereof. Upon that evidence the counsel for the defendant prayed an instruc*387tion to the jury, that the second bill, so received by the plaintiff, was a satisfaction of that sued on in this action, and that the drawers were thereby discharged. But the Court refused to give the instruction, and directed the jury, that accepting the second bill would not amount to a payment or satisfaction of the bill sued on, unless it was given and received, upon an agreement that it should be a satisfaction.

After a verdict and judgment for the plaintiff the defendant appealed.

Burgwin and A. Moore, for the plaintiff.

Heath, for the defendant.

Ruffin, C. J.

Upon the point, as to the proof of the hand writing, the case seems to be one of that class, in which the proof has been allowed to come from a witness, whose knowledge of the writing was derived from papers purporting to be made by the party, which were established in the mind of the witness to be genuine, by the fact, they were so treated by the party from time to time by paying them. Pope v. Askew, 1 Ire. 16, and State v. Harris, 5 Ire. 387. It is of no consequence, that the wit • ness had no such knowledge of the writing of the partner, Messmore, derived in any manner, as would enable him to say with precision, that he believed that Messmore personally put the name of the firm to the bill; for, whether that person, or any other duly authorised, signed the bill, the firm was in law the drawer, and the witness states his belief, that, as far as could be judged from the hand-writing, this bill was signed by the same person, who habitually made notes on the house of George Price & Co., which that firm habitually took up from the witness. The substance of the testimony is, that whoever generally gave securities in the name of George Price & Co. — whether one of the partners or a Clerk — must have *388drawn the bill in question. That we think was sufficient to let the bill go to the jury, whose province it was to determine, how much credit ought to be allowed to the judgment and integrity of the witness.

By the law merchant, a notarial protest is, in itself, evidence. Chitty on Bills 405. The doctrine rests upon usage and the universal convenience of the commercial world. With us, however, it is established by statute, which extends to all kinds of bills, and makes the protest prima facie evidence, against the drawers, of a demand on the drawee and notice to the drawer. Rev. Stat. ch. 13, sec. 10.

The Court concurs also in the instructions to the jury. The note or bill of a third person taken by a creditor, may under circumstances, be a satisfaction absolutely ; that is, when so intended. If it be passed at the time of making a purchase or otherwise contracting a debt, there seems to be a natural presumption of an intention, that it should be in discharge of the debt; and that appears to be the general effect of the adjudged cases. But, at the same time, the current of the authorities, in the case of a pre-existing debt, is the other way ; establishing that the discharge of such a debt is not presumed from the creditor’s accepting a note or bill on another merely, but there must be an agreement to that effect, either express or to be inferred plainly from the circumstances and conduct of the parties. It is not necessary to refer to particular adjudications, as they are numerous, and the doctrine established. Most of the cases are collected in the note of the American decisions appended to Cumber v. Wane, in the American edition of 1 Smith’s leading cases, 146. There is nothing here to authorise an inference of an unconditional agreement for the extinguishment of the prior debt by the second bill. The contrary presumption is strong, from the circumstance, that, when the plaintiff took the second, he still kept the first bill ; as it shows he *389did not mean to give up any name until he should get actual satisfaction. It was, indeed, incumbent on the plaintiff to show on the trial of this suit, that he used proper diligence on the second bill and could not obtain payment. But that he did. It was, however, argued that the rule applies only when the creditor receives a second bill or note from some one, who was liable for the original debt, which was said not to be the case here, as McAdam, from whom the plaintiff received the bills, was not a party to either. That person is not stated not to be one of those bearing that name, who composed the firms in Norfolk and New York ; and from the transaction one would take it, that he was of those firms and in that way connected with the bills, and probably also as agent for George Price & Co., for whose accommodation it would seem the bill might have been drawn, and discounted, as it was made payable to the plaintiff, not upon any previous transaction, but to be discounted simply. But, if McAdam was really a mere stranger and only the agent of George Price & Co. to procure the discount, the case is stronger against the defendant: for then the drawers cannot avail themselves of his act, being that of a stranger, as a satisfaction of their debt. Clow v. Borst & Best, 6 John. Rep. 37.

The counsel for the defendant further insists, that the protest was premature, inasmuch as the bill was entitled to grace and yet it does not appear that it had been presented before the 16th of November — the day of the protest for non-payment. But this point is not taken in the - exception,‘"añdTherefore cannot be taken here. It cannot be told, that the plaintiff did not show by other evidence a previous presentment of the bill; or that in New York sight bills are not entitled to days of grace, as, according to our impression, such is the rule here.

Per Curiam.

Judgment affirmed.