Weisel, J.,
delivered the opinion of this Court!
This causo was before this Court on a former occasion,, and, in the aspect in which it was then presented, it was-decided that a notice from the acceptor to the diawer'of the' of the bill of its dishonor,, was sufficient to bind'the'latter y [139]*139lib at the letter-press copy of the letter from the acceptor t© to the drawer, conveying this intelligence, was admissible in evidence to prove such notice; hut that the evidence, as then presented, was not sufficient to prove the mailing of the letter. Brailsford vs. Williams & Son, 15 Md. Rep., 150.
The case was retried in the Superior Oeurt of Baltimore •city, on the procedendo from this Court, and the rulings on this trial form the subjects of the present appeal.
It is to be observed that the suit originated in an attachment upon warrant, which was levied upon a quantity of whiskey and corn of the defendant, appraised at 82,125.20. The defendant was returned “non eat" to the writ of summons, hut at the term, after the return, he appeared by attorney to the suit i,n which tin's writ was issued, and defended, the action, the attachment itself still pending, and operating as a security for the amount of the judgment which may bo recovered in the summons case. Lambden vs. Bowie, 2 Md. Rep., 340. Both appeals have proceeded from tbe trials of the summons case.
The ground of action is a bill of exchange drawn by W, S. Bmilsford, (the defendant below, and the appellee in this case.) of Charleston, S. C., on S. .1). Tongo & Co., Baltimore, in favor of Williams, Butler & Co., dated at Charleston, June 22d, 1864, payable thirty days .after date, for 81,800.92, which was accepted by 8. I).. Tongo & Co., and endorsed by ihe payees to the plaintiffs — the appellants. The bill was dishonored at maturity, and duly protested for non-payment
In order to charge the defendant with notice of the nonpayment hy ,tbe_ acceptors -of the hill, the plaintiffs offered certain testimony which was excluded hy the Court. The first bill of exceptions is to th is ruling. It appears that 8. D. Tonge, of the firm of S. D. Tongo & Co., the acceptors, proved on the first trial, that on the day the bill matured be addressed a letter to the defendant, informing him that the [140]*140bill was not and would not be paid, and produced a letterpress copy of the letter, which was allowed to go in as evidence. The writer, Tonge, although returned summoned as a witness to the term at which the second trial took place, was not present to testify, and the effort of the plaintiffs was to introduce the evidence which Tonge gave on the former trial, together with the copy of the said letter, which proof was in the record of the first trial, and in the reported case. In order to lay a foundation for the admission of this secondary proof, the testimony of witnesses was offered to prove that Tonge formerly resided in Maryland, but for the last two years he had not resided in this State, but had removed to some other place, and could not be had as a witness upon this trial, and that his testimony could not otherwise have been procured. This was offered in connection with the proof of Talbot "Wilson, the clerk of S. D. Tonge & Co., set ■out in the bill of exceptions, in relation to his agency in mailing the letters of Tonge, and which was intended to supply the deficiency of proof on the former trial. The testimony of the witnesses to prove the non-residence of Tonge was objected to on the ground that it was hearsay and matter of reputation, and that his non-residence could not be proved in this way. The Court below sustained the objection, and ruled out and rejected all the said testimony as inadmissible, being of opinion, that irrespective of any question as to the right to prove Tonge’s residence by reputation ■and hearsay, if his evidence as given on the former trial were in, it would be insufficient in connection with the testimony of Talbot Wilson now given, to prove the mailing of the letter in question, as claimed by the plaintiffs.
We concur in the opinion of the Court below as to the insufficiency of Wilson’s testimony to prove the mailing cf the letter. He proved that he was the clerk of the -acceptors from 1850 to 1855; that Tonge wrote the [141]*141trusiness letters of the firm, and generally carried them to the post office himself; that when lie did not do so, lie placed them on a desk or table in his office and directed the witness to ■carry them to the post office; and that it was the practice of the witness to carry them to the post office, when they were thus placed on the desk or table, and he was directed by Tonge to mail them; and, being specially asked on cross-■examination, whether ho always put into the post office the letters he saw on the desk or table, whether Mr. Tonge told Mm to do it -.or not, he answered that lie would not have put into the post .office any letter he might have seen there, unless Mr. _ Tonge told him to do so; and that he had no recollection of putting into the post office the letter in -question to Braiisford. This we regard .as too uncertain and indefinite to authorise an inference or conclusion that the letter was in fact mailed by Mm, and is very different from the •evidence adduced in the case of Bell vs. The Hagerstown Bank, 7 Gill, 216. In that case, it was shown that the letters written -by the cashier were never taken by Mm to the post office, but were handed by him to the messenger, or left daily on his table for the messenger, whose regular and daily .'duty it was to -take them to the post office and there deposit them, and that this was Ms — the messenger’s — invariable and daily custom and practice, and that he had no recollection of ever having failed to perform this duty ; the cashier Raving also proved that he had a distinct recollection of having received the notices in that case, and that he was very ■sure that on the day he received them, ho sealed and directed rfchem to the drawers and endorsers at their respective post offices. If, therefore, Tonge had been present, and had proved what he did on the former trial, the additional proof by ’Wilson was insufficient to establish the fact of the mailing of the letter, and complete the evidence of notice to the defendant.
The testimony offered by Mr. Erazier and Mr. Malcolm, ¡the-one to prove the non-residence of Tonge, and the other [142]*142what Tonge proved on the former occasion,, and which, is found in the second and third bills of exceptions, was also properly objected to, and excluded by the Court upon the same grounds as those .given in the first bill of exceptions.
The fourth bill of exceptions was taken to the Court’s refusal to allow a letter to be given in evidence, spoken of by Mr. Frazier in his examination the day before, and which was not produced, when the testimony on both sides was then closed, and to the future introduction of which the defendant’s counsel objected. Under the rules of the Court, the cause was ready for the prayers of the parties on both sides, and the introduction of the testimony was in the discretion of the Court, and if introduced, related only to the non-residenee of Tonge. It was, therefore, under the former rulings of no avail to the plaintiffs on the trial, and was properly rejected.
In the progress of the trial, the plaintiffs offered in evidence, to show a waiver of notice by tbe defendant, or an excuse for not giving it, the testimony of Augustus O.
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Weisel, J.,
delivered the opinion of this Court!
This causo was before this Court on a former occasion,, and, in the aspect in which it was then presented, it was-decided that a notice from the acceptor to the diawer'of the' of the bill of its dishonor,, was sufficient to bind'the'latter y [139]*139lib at the letter-press copy of the letter from the acceptor t© to the drawer, conveying this intelligence, was admissible in evidence to prove such notice; hut that the evidence, as then presented, was not sufficient to prove the mailing of the letter. Brailsford vs. Williams & Son, 15 Md. Rep., 150.
The case was retried in the Superior Oeurt of Baltimore •city, on the procedendo from this Court, and the rulings on this trial form the subjects of the present appeal.
It is to be observed that the suit originated in an attachment upon warrant, which was levied upon a quantity of whiskey and corn of the defendant, appraised at 82,125.20. The defendant was returned “non eat" to the writ of summons, hut at the term, after the return, he appeared by attorney to the suit i,n which tin's writ was issued, and defended, the action, the attachment itself still pending, and operating as a security for the amount of the judgment which may bo recovered in the summons case. Lambden vs. Bowie, 2 Md. Rep., 340. Both appeals have proceeded from tbe trials of the summons case.
The ground of action is a bill of exchange drawn by W, S. Bmilsford, (the defendant below, and the appellee in this case.) of Charleston, S. C., on S. .1). Tongo & Co., Baltimore, in favor of Williams, Butler & Co., dated at Charleston, June 22d, 1864, payable thirty days .after date, for 81,800.92, which was accepted by 8. I).. Tongo & Co., and endorsed by ihe payees to the plaintiffs — the appellants. The bill was dishonored at maturity, and duly protested for non-payment
In order to charge the defendant with notice of the nonpayment hy ,tbe_ acceptors -of the hill, the plaintiffs offered certain testimony which was excluded hy the Court. The first bill of exceptions is to th is ruling. It appears that 8. D. Tonge, of the firm of S. D. Tongo & Co., the acceptors, proved on the first trial, that on the day the bill matured be addressed a letter to the defendant, informing him that the [140]*140bill was not and would not be paid, and produced a letterpress copy of the letter, which was allowed to go in as evidence. The writer, Tonge, although returned summoned as a witness to the term at which the second trial took place, was not present to testify, and the effort of the plaintiffs was to introduce the evidence which Tonge gave on the former trial, together with the copy of the said letter, which proof was in the record of the first trial, and in the reported case. In order to lay a foundation for the admission of this secondary proof, the testimony of witnesses was offered to prove that Tonge formerly resided in Maryland, but for the last two years he had not resided in this State, but had removed to some other place, and could not be had as a witness upon this trial, and that his testimony could not otherwise have been procured. This was offered in connection with the proof of Talbot "Wilson, the clerk of S. D. Tonge & Co., set ■out in the bill of exceptions, in relation to his agency in mailing the letters of Tonge, and which was intended to supply the deficiency of proof on the former trial. The testimony of the witnesses to prove the non-residence of Tonge was objected to on the ground that it was hearsay and matter of reputation, and that his non-residence could not be proved in this way. The Court below sustained the objection, and ruled out and rejected all the said testimony as inadmissible, being of opinion, that irrespective of any question as to the right to prove Tonge’s residence by reputation ■and hearsay, if his evidence as given on the former trial were in, it would be insufficient in connection with the testimony of Talbot Wilson now given, to prove the mailing of the letter in question, as claimed by the plaintiffs.
We concur in the opinion of the Court below as to the insufficiency of Wilson’s testimony to prove the mailing cf the letter. He proved that he was the clerk of the -acceptors from 1850 to 1855; that Tonge wrote the [141]*141trusiness letters of the firm, and generally carried them to the post office himself; that when lie did not do so, lie placed them on a desk or table in his office and directed the witness to ■carry them to the post office; and that it was the practice of the witness to carry them to the post office, when they were thus placed on the desk or table, and he was directed by Tonge to mail them; and, being specially asked on cross-■examination, whether ho always put into the post office the letters he saw on the desk or table, whether Mr. Tonge told Mm to do it -.or not, he answered that lie would not have put into the post .office any letter he might have seen there, unless Mr. _ Tonge told him to do so; and that he had no recollection of putting into the post office the letter in -question to Braiisford. This we regard .as too uncertain and indefinite to authorise an inference or conclusion that the letter was in fact mailed by Mm, and is very different from the •evidence adduced in the case of Bell vs. The Hagerstown Bank, 7 Gill, 216. In that case, it was shown that the letters written -by the cashier were never taken by Mm to the post office, but were handed by him to the messenger, or left daily on his table for the messenger, whose regular and daily .'duty it was to -take them to the post office and there deposit them, and that this was Ms — the messenger’s — invariable and daily custom and practice, and that he had no recollection of ever having failed to perform this duty ; the cashier Raving also proved that he had a distinct recollection of having received the notices in that case, and that he was very ■sure that on the day he received them, ho sealed and directed rfchem to the drawers and endorsers at their respective post offices. If, therefore, Tonge had been present, and had proved what he did on the former trial, the additional proof by ’Wilson was insufficient to establish the fact of the mailing of the letter, and complete the evidence of notice to the defendant.
The testimony offered by Mr. Erazier and Mr. Malcolm, ¡the-one to prove the non-residence of Tonge, and the other [142]*142what Tonge proved on the former occasion,, and which, is found in the second and third bills of exceptions, was also properly objected to, and excluded by the Court upon the same grounds as those .given in the first bill of exceptions.
The fourth bill of exceptions was taken to the Court’s refusal to allow a letter to be given in evidence, spoken of by Mr. Frazier in his examination the day before, and which was not produced, when the testimony on both sides was then closed, and to the future introduction of which the defendant’s counsel objected. Under the rules of the Court, the cause was ready for the prayers of the parties on both sides, and the introduction of the testimony was in the discretion of the Court, and if introduced, related only to the non-residenee of Tonge. It was, therefore, under the former rulings of no avail to the plaintiffs on the trial, and was properly rejected.
In the progress of the trial, the plaintiffs offered in evidence, to show a waiver of notice by tbe defendant, or an excuse for not giving it, the testimony of Augustus O. Andrews and Richard M. Butler, of South Carolina, taken under a commission issued by them, and in connection with other proof admitted in the cause. The introduction of the proof taken under the commission was objected to by tbe defendant’s counsel when offered, but the Court allowed it to go in then, and be read subject to exceptions, to be after-wards discussed and decided. Its admissibility was considered in connection with the prayers that were offered, and the Court sustained 'the exceptions to the testimony of the two witnesses above named, and ruled it out of tbe cause. The Court also rejected the plaintiff’s prayers and granted the defendant’s. To all which rulings the fifth exception was taken.
The counsel for the appellants, in his argument on this appeal, and in his brief, did not insist upon the merits of the [143]*143prayers, but confined Ms views to an examination of the question of the competency of Andrews and Butler to testify for the plaintiffs below, and to the sufficiency of their proof to warrant the jury in finding either that the defendant had received due notice of the dishonor of the- bill, or that he had waived his right to take advantage of the want of such notice.
The witnesses named', were both members of tho firm of Williams, Butler & Co., the payees and indorsers of the? draft or bill of exchange, both at the time of its making and maturity, and their co-partner, Williams, was also a; member of the firm of John Williams & Son, the plaintiffs,, being the indorsees and holders of the draft.
It was proved in the cause by the plaintiffs’ answers to a bill of discovery filed by the defendant, that the draft was received by the plaintiffs from Williams, Butler & Co., and credited to them in account current between the firms, and that the amount had not been, repaid to them, the plaintiffs; that at the time the draft was received by the plaintiffs, there were current open accounts between the firms, and upon a final settlement, Williams, Butler & Co. would have been debtors to the plaintiffs; that when the suit was instituted the draft was the property of the plaintiffs, John Williams & Son, and the accounts between the two firms was at that time closed, and the firm of Williams, Butler & Co. had before that time been dissolved, and there was no account then between them.
These witnesses were parties to the bill as indorsers, and they wore offered to charge the defendant, the drawer,, with notice of its dishonor by the acceptors, or its equivalent, and thus to enable the plaintiffs to recover a judgment against the drawer, whose effects were held, by virtue of the attachment, as security for the amount, as upon the recovery the plaintiffs could have moved for and obtained a judgment of condemnation in the attachment suit.-
[144]*144The objection to their competency is not because they are* parties to the bill. That is no longer a question. Nor were they called to impeach its original validity, having given it currency by their indorsement, (about which the Courts have been much divided,) but to prove a matter affecting a recovery upon it, subsequent to their indorsement.
The only objection that can be urged to them as witnesses is on the score of interest. If they were directly or necessarily interested in the event of this suit, under the circumstances in which it was presented, and were called to support such interest, they were incompetent to testify, and their proof was correctly excluded, (the trial in this case having taken place before the passage of the Act of Assembly of 1861, ch. 109.) The general rule in favor of the competency of an indorsee of a bill as a witness against the acceptor or drawer, with the reasons for it, is given by Professor Green-leaf, (1 Greenl'f Ev., sec. 400,) and with this accord all the authorities and text-writers. In every case where the party standing in this relation has been permitted to testify, his interest was equally balanced between the parties,, or he was released by the party hindering him.
It becomes the Court, then, to inquire, whether in the attitude in which these parties were presented as witnesses,, there were special facts which created an interest in their favor which would exclude them from testifying.
Such facts, we think, are disclosed by their own testimony.. They received notice as endorsers of the dishonor of the bill which fixed their liability to the plaintiffs, whilst they failed to serve the defendant with the notice for him, either personally or at his place of residence or business, which relieved him from his liability to them. By enabling the plaintiffs to-recover from the defendant, especially in an action which secured the payment of the judgment by means of the attachment they would effectually shield themselves from suit and liability to the plaintiffs. The holders would not be induced [145]*145to resort to them, when, by a recovery against the defendant, they would have, as it were, the means of payment already in reserve. If they should abandon this advantage and institute suit against the indorsers, these in their turn would be hopeless of recovery from the drawer by reason of their failure to give him the necessary notice. They did not, therefore, occupy an indifferent position between the parties, as endorsers ordinarily would where both they and the drawer had regularly received notice, and if compelled to pay the holder they could successfully resort to the drawer for reimbursement.
(Decided June 22d, 1866.)
We, therefore, are of opinion that the testimony of these witnesses was properly excluded by the Court, and that the defendant’s prayers were properly granted.
The plaintiff’s prayers were obviously incorrect, the first in assuming that in order to charge the defendant, the jury should find that he was a citizen of the State of Maryland at the time of the maturity of the bill, and had a place of business or residence in it at said time; and the second, in dispensing with notice to him, although he had lived in Charleston, but had left it for Baltimore on a visit before notice could have reached him in the regular course of the mail, and that he had no regular place of business in Charleston, and left no person there to attend to his business in his absence. They were properly rejected.
Concurring with the Court below on all its rulings, we affirm the judgment.
Judgment affirmed,