Clarke v. Russell
3 U.S. 415 (1799)

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U.S. Supreme Court

Clarke v. Russell, 3 U.S. 3 Dall. 415 415 (1799)

Clarke v. Russell

3 U.S. (3 Dall.) 415

ERROR TO THE CIRCUIT COURT FOR

THE DISTRICT OF RHODE ISLAND

Syllabus

Bills of exchange unaccompanied by protests for nonacceptance, but which had been protested for nonpayment, were admitted in evidence.

Parol evidence cannot be given to explain the terms used in written papers which were set up to prove an undertaking or guarantee.

The undertaking declared upon being for the duty of another, it must, to save it from the statute of frauds and perjuries, be in writing and wholly so.

On the return of the record, it appeared that a declaration containing the following count had been filed in an action brought by

"Nathaniel Russell 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 & Nightingale."

1st Count.

"That the said John Innes Clarke and Joseph Nightingale, then in full life, on 10 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 endorse seven several sets of bills of exchange of the date, tenor, and description as set forth in the annexed schedule, drawn by a certain Jonathan Russell who was agent and partner in that particular of the company of Robert Murray & 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

Page 3 U. S. 416

of said bills did not pay the same to the said plaintiff. And the said plaintiff in fact saith that in consideration of and trusting to the said assumption and promise, he did endorse the said bills; and the said plaintiff further in fact saith 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 nonpayment, of which nonpayment and protest notice was given in due form of law to the drawer thereof and also to the plaintiff, to-wit, on 13 September, 1796, at said District of Rhode Island, by reason whereof, in consequence of said endorsement, the plaintiff was obliged to pay the said bills, with damages, costs and interest thereon, amounting to

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