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 (Plaintiff i 
 
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 Lowti 
 
Lowtr Casadt, to wit : 
 
 IN THE aUEEN'S BENCH. 
 
 A.I>I>E-A.L SIIDE. 
 
 ^\^RIGIIT CHAM BERLIN, 
 
 ( PlaiiiliJ in the Court Uelow.) 
 
 Appellant, 
 
 — A Nn — 
 
 OR VIS IiA.LL, 
 
 ( Defendant in the Cuurl Uelow, ) 
 
 Respondent. 
 
 -A-DPFEXiXj-A-ITT'S c-a.se. 
 
 'i'hia appeal is from a judgment of the Superior Court at Sherbrooke ren- 
 dered on the 18th day of June last, dismissing the action of the Appellant. 
 
 The action was brought against the Respondent, Ball, as endorser of a 
 Promissory Note, dated Sherbrooke, May 17th, 1858, made by one Jolui 
 Turner, and payable ten days after date to tlie order of the Respondent. The 
 note was endorsed by the Respondent, by endorsement in blank, and delivered 
 to the Appellant upon the day it bears date, and was duly protested lor non- 
 payment on the 3 1st day of May, 1858, (the 30th being Sunday) and the Res- 
 pondent duly notified of sjich protest. 
 
 Besides a defense en droit (which was dismissed) and a </t/<'Mse f/i/a/f, 
 the Respondent pleaded two peremptory exceptions, which are in substance 
 as follows, to wit: — 
 
 1. That the Promissory Note was not presented to the maker, and no 
 demand of payment made of him when it becanie due, and was not legally 
 protested for non-payment. That the protest is irregular and insufficient in 
 several particulars, and that the defendant had no legal notice of protest, the 
 notice not having been sent to the po?t office nearest to his residence. 
 
 2. " That when the Promissory Note sued upon in this cause was made 
 " over to the Plaintiff by Defendant, it was sold to said Plaiiitilfat a large dis- 
 " count, and Plaintiff purchased it upon the sole credit and responsibility of 
 " the maker thereof, John Turner, and that the Plaintiff accepted the same as 
 " such, and agreed to release the Defendant from all liability thereof as endor- 
 " ser ; and the Defendant simply put his name upon said note to convoy the 
 " same to him, and order the said John Turner to pay the same <o PlaintilF; 
 " and it was distinctly agreed by and between the Plaintiff and Defendant that 
 " Defendant should incur no liability upon said note to Plaintiff by reason of 
 " his endorsing his name upon the same, and the Plaintiff accepted the same 
 «' and gave as consideration therefor only the value of one hundred and sixty 
 " dollars in consideration of taking the sole risk of the collection thereof of 
 " .lolni Turner, the maker thereof." 
 
 Lssue having been joined, and the defense en droit disposed of, the Respon- 
 dent proceeded to evidence in support of his second plea. Upon his attempt- 
 ing to adduce parol evidence, by proposing a question to the witness Seth 
 Lougee (paper 21 of record) whether at the time of the transfer of the note he 
 
!li 
 
 lioanl any agreement or ronvermlion between PlaintifTand Defendant with ro- 
 yanl to the note, tlio Appellant placed ot n^cord a formal objection to the ad- 
 duction of parol evidence to conti.idict the terms of the written contract de- 
 clared upon. This objection was reserved by the Judge at Enqtiete, and the 
 evidence ordered to bo taken <le bene esse. All other evidence of a similar na- 
 ture was taken under reserve of objections. The Respondent adduced 
 evidence, also under reserve of Appellant's objections, to show that the consid- 
 eration given to the Appellant for the note was a horse of the value of about 
 one hundred dollars, aud sixty dollars in money. This evidence as to the 
 value of the horse is rebutted by the testimony of several witnesses for the Ap- 
 pellant, who proved the horse to be worth one humire^^lTars. In support 
 of his first peremptory exception, the Respondent adduced no evidence, nor did 
 he fylc any affidavit with his picas. 
 
 The cause was heard on the I4th day of June last, when the Appellant 
 moved to reject the evidence to which he had fyled objections. 
 
 On the 18tb day of the same month, the following judgment was rendered, 
 viz : — 
 
 " The Court having heard the parties by their respective Counsel, as well 
 
 " on the Plaintiff's motion to reject the Defendant's evidence as upon the 
 
 " merits, and examined the pleadings and proceedings of record, and upon the 
 
 " whole deliberated, considering the evidence adduced heroin by the Defendant 
 
 " is legal, and he hath maintained the allegations of the exceptions by him 
 
 " pleaded, that the Promissory Note sued upon was transferred by the Defen- 
 
 " dantto the PlaintifI"on the expressed agreement of the Plaintiff's looking for 
 
 " payment solely to John Turner, the maker, and no legal presentment for 
 
 " payment of said note was made at the? maturity thereof, and no notice of 
 
 " non-payment was given to the Defendant, and the endorser thereon is fully 
 
 " discharged from all liability therein, doth overrule the Plaintiff's motion to 
 
 " reject the evidence adduced by the Defendant, and doth dismiss the action of 
 
 " the Plaintiff, and doth condemn him to pay the Defendant the costs of this 
 
 " suit, distraction of whicli is awarded to Messrs. Sanborn & Hrooks, the De- 
 
 " fendant's Attorneys." 
 
 The legal pretensions of the Appellant, and upon which he relies for a 
 reversal of the judgment appealed from, may be briefly stated in the following 
 propositions : — 
 
 1. The Promissory Note sued wpnu was duly presented for payment, and 
 the protest and notice are regular and sufficient. 
 
 2. That even if there be any irregularity in such presentment, protest 
 and notice, it was waived by the Hcspondent, who neglected to avail himself 
 r)f the only legal method of objecting to the sufficiency of such protest and 
 notice. 
 
 3. That in the absence of an allegation of fraud, parol evidence is inad- 
 missible m support of a contemporaneous verbal iigrecnient to contradict a va- 
 lid written instrument ; and, consequently, 
 
 •1. That the evidence adduced by the Respondent "i support of his plea 
 was illegal, and ought to nave been rejected. 
 
 These propositions the Appellant will, he apprehends, be able to support 
 by numerous and undoubted authorities. 
 
 Hut tlie aliogaiions of the Respondent's pleas arc not, as Appellant hnm- 
 i)ly maintains, established by the evidence, (illegal though it be) whiih he has 
 placed of record in the cause. The Respondent pleads that at the lime when 
 the note was trann/eired the Appellant agreed to release him and look to th(> 
 maker only, in consideration of Appellant's not giving the full value of the note, 
 I^ougce, the Respondent's principal witness, and the only one who professes to 
 have any personal kuowleilge of the transaction, admits that he never saw the 
 note in question, and " ivas not present when the bargain was made between 
 "the Plaintifl and Defendant in this cause. The conversation which 1 have 
 
fcnclunt with ro- 
 ction to the ad- 
 ten contract de- 
 Inqiiete, and the 
 of a similar na- 
 indent adduced 
 that the consid- 
 value of about 
 lence as to the 
 3808 for the Ap- 
 rs. In support 
 fidence, nor did 
 
 the Appellant 
 
 it was rendered, 
 
 /ounsel, as well 
 e as upon the 
 I, and upon tlie 
 ' the Defendant 
 ptions by him 
 by the Defen- 
 F's looking for 
 resentment for 
 d no notice of 
 ereon is fully 
 iff's motion to 
 !s the action of 
 le costs of this 
 rooiip, the De- 
 
 lio relics for a 
 1 the following 
 
 payment, and 
 
 itment, protest 
 
 avail himself 
 
 h protest and 
 
 dence is inad- 
 mtradict a va- 
 
 t of his plea 
 
 )lc to support 
 
 ppellant huni- 
 which he has 
 'le time wlien 
 il look to the 
 ue of the note. 
 o professes to 
 never saw tlu; 
 Hide between 
 which 1 have 
 
 «' mentioned in my cxaini nation in chief took place sliortli/ after the bargain ! 
 " have spoken of. I was not shewn the said note by cither party, and 1 did 
 " not know what were the terms or the conditions of the said note, nor even 
 " who was the maker of the said note." The pretended agreement attempted 
 to be proved was mhsetjuent to t/te endorsinn of the note, and is not pleaded by 
 the Respondent, being entirely different from that referred to in the Respon- 
 dent's second plea. No evidence whatever is adduced to show that, at the time 
 of the transfer of the note, it was understood to be sold for less than its full 
 value, an<l the evidence of the Appellant proves conclusively that such was not 
 the (;ase. 
 
 The Appellant humbly maintains that the judsnicnt apinaled from is con- 
 trary to law and is not supported by the evidence illegally admitted, and he 
 confidently looks for its reversal l)y this HoiKirablc (Jourt. 
 
 T. VV. KITCHIK, 
 (; II. HOUI-ASK. 
 
 /'«) AjijirlhiiH. 
 .Monltctl, Auun.l, i«.'i'».