Anderson, hands, in which, it was alleged, the bill in question had Bannaline & been put.

Co.

One witness proved, that the defendant Robson acknowledged in Charleston, that he had drawn the original bill, on which this action was brought, but there was no positive proof of its loss. In order, therefore, to supply this defect of positive proof, the plaintiffs resorted to presumptive evidence; and the plaintiffs' correspondent in Charleston, to whom the originals had been addressed, swore that he had been employed by the plaintiffs' house in Glasgow, to recover the amount of this bill; and that he had received by the next ship which sailed from Glasgow after the sailing of the Britannia, a duplicate of the letter written by that ship, from the plaintiffs, enclosing notarial copies of the protests, with a copy also of the original bill; in which they informed him, they had sent on the originals by the Britannia; he also proved that the Britannia arrived without any letters, and that the captain and mate of the ship had both assigned as a reason for not bringing letters for Charleston, that the letter-bag had been thrown overboard, when the ship was chaced by the French privateer, on the passage.

An objection was taken to this kind of testimony by the defendants' counsel, as not bringing this case within the rules of law; as there was no other proof of the original being put on board the Britannia but the plaintiffs' own letter; and the throwing the letter-bag overboard, containing the originals, was only hearsay testimony.

To this it was replied by the counsel for plaintiffs, that from the nature of the transaction itself, the matter was not well capable of higher proof; and in mercantile affairs, in the course of trade between merchant and merchant in foreign countries, less strictness was observed, and a much greater latitude was allowed, than in the contracts made, and to be observed between citizen and citizen residing in the same country. That every thing had been proved in this case, which was usual and customary in the way of

Bannaline &
-Co.

V.

Jones.

trade. Letters of advice, invoices, bills of lading, pro- Anderson, tests, and all those kinds of documents, usual in commercial cases, were every day given in evidence to juries, and ad- Robson and mitted by courts of justice; and without it, trade could never be conveniently carried on. The duplicate of the letter, enclosing notarial copies of the protests, and the bill of exchange, could not possibly be a fabrication, as it was written soon after the sailing of the Britannia, and as there was but one original bill, a duplicate or triplicate could not be sent. Every thing, therefore, seems to have been done by the plaintiffs in this case, which it was incumbent on them to do, in order to establish their right; and the fact of the letter-bag being thrown overboard when the ship was chased by the French privateer, was unquestionably proved and corroborated by the actual arrival of that ship in Charleston, without letters; and the declaration of the principal officers of the ship to that effect, on their arrival, who could have had no interest in making a wilful misrepresentation upon a point of so much importance to all concerned, and in which their own characters as honest men were deeply concerned.

Judge JOHNSON, who tried this cause, in his charge to the jury, observed, that this was a case to be governed more by the usage and course of trade, than by the rigid rules of the common law; and much greater latitude was allowable in a case of this nature, than could be permitted by the courts of justice, in cases relating to the loss of deeds, specialties, and other instruments, which were to be regu lated by the strict rules of evidence.

That there appeared to be no doubt, as to the existence and contents of the bill. The only point for the consideration of the jury was as to its loss; and he left it to them to determine, upon the whole of the circumstances of this case, whether the loss of the bill had been satisfactorily accounted for, or not?

Anderson,

Bannaline &

Co.

And the jury being fully satisfied upon all the points of the case, found upon the copy of the bill and protests, under Robson and the notarial seal in Glasgow, the amount of the bill with interest and costs.

V.

Jones.

The present was, therefore, a motion for a new trial, on the grounds that the verdict was without evidence and against law, &c.

The court, after hearing arguments on both sides, was of opinion, that the case was very properly submitted, under all the circumstances of the case, by the presiding judge to the jury, who had found a verdict for the plaintiffs; and as the loss of the original bill was a matter for their consideration, arising from the nature of the evidence offered, and the whole of the case together, the court did not think proper to disturb the verdict.

Rule for new trial discharged.

Turnbull, for plaintiffs. Cheves, for defendants..

All the Judges present.

Charleston, 1803.

Rice or any other staple

VANDERHORST & Co. against DAVID M‘TAGGArt.

ASSUMPSIT for a quantity of rice sold by plaintiffs

commodity of as factors.

Carolina, should be ex

The rice in question had been sent down to the plaintiffs amined at the for sale, by Mr. Bowman, from his plantation on Santee shipping port,

on board. Its

before it is put river. The defendant purchased it, and there was a balance quality is not of 84/. 17s. 10d. unpaid, for which this suit was brought.

to be

deter

mined by an

examination

The defence was, that the rice was damaged and not

at a foreign merchantable; and, therefore, that defendant was not bound

port. The

neglect on the

part of the purchaser to make such examination, is a tacit admission of the merchantable quality of the article, and he thereby takes the risk upon himself.

& Co.

V.

M'Taggart.

to pay. On the part of defendant it was proved, that Vanderhorst fifteen tierces of it had been shipped by him to Alexandria in Virginia; that the vessel had only eight days passage; that the weather was very fine, the vessel staunch and airy, and that no damage could have happened during the passage. That upon the examination of the rice after it was landed at Alexandria, the whole of it in the casks was found to be dark, musty, and unmerchantable; so that a purchaser who had bought it as merchantable returned it to the consignee, who was obliged to sell it at public auction as damaged rice, when it brought little or nothing; so that the damages upon such sale amounted to a sum considerably above the balance claimed by the plaintiffs in the present action.

For the plaintiffs, in reply, it was proved by the person who managed Mr. Bowman's plantation, that these fifteen casks of rice had only been beaten out ten days before the sale to defendant, and that it was put up in good merchantable order. The master of the schooner who brought it to Charleston from Santee, proved that it was delivered dry and in good order. And Mr. Mitchell, the cooper, who had coopered all the casks after their arrival in Charleston, proved that they were all in good order. And the wharfinger, a Mr. Keating, shewed the rice to defendant when he purchased it. And Mr. McTaggart was so well satisfied with it, that he had only two casks opened, when he immediately went to the plaintiffs' counting-house, and made the purchase without further examination; and further, that all the parcel appeared to him to be in fine order for shipping. All the witnesses stood fair on both sides, and the only difficulty was to account for the damage, which the rice had sustained.

The case was submitted by the presiding Judge to the jury, as a matter for their consideration, and they found a verdict for the defendant.

After this verdict was given in, this was thought to be a cause of more importance than at first it was considered to

Vanderhorst be, as affecting both the planting and shipping interests of

& Co.

V.

McTaggart.

this country.

Accordingly a new trial was moved for, on the ground of its being a new case of much importance, and meriting a fuller consideration, than it had undergone on the above trial.

On the part of defendant it was contended, that the credit and interest of Carolina very much depended upon the integrity and good conduct of the planters, in putting up their staple commodities in good order for a market; particularly rice, which was so easily damaged. That merchants and strangers reposed a high confidence in their honour, and advanced their money freely, upon the faith and credit which was given to their care and circumspection, in putting up. this valuable article dry and in a good condition for shipping off to a foreign market; and if at any time it turned out otherwise, they, and not the merchant or purchaser, should bear the loss. That receiving a sound price, warranted a sound commodity, and if the article sold turned out unsound, the seller should return the price, and all damages besides.

In the present case, it was said, it was almost impossible that the rice could have been damaged or injured after it came into the defendant's possession; as the vessel was a fine dry airy one, had met with no bad weather, and was only eight days on the passage, so that it was fair to conclude that the rice must have been in a damp or moist condition, when it was put into the casks at Mr. Bowman's plantation; or received some injury afterwards, before it was shipped for Alexandria. That this presumption was so strongly inferable, that it was difficult to draw any other conclusion.

For the plaintiffs, in reply, it was admitted, that the interest and credit of the country did depend a good deal on the care and circumspection of the planters in putting up their staple commodities in good and merchantable order for shipping off to a foreign market, and par