such case the validity of the transfer could not be questioned, and the is admissible as evidence in an action thereon without preliminary proof EVIDENCE. CONTENTS OF PAPER WHICH IS BEYOND JURISDICTION Of Court CAN BE PROVED BY SECONDARY EVIDENCE without accounting for the - IT IS LONG-SETTLED RULE OF PLEADING AND EVI- DENCE that facts which excuse demand and notice will, in law, be deemed proof of such demand and notice. Allegation of demand and notice may, NEGOTIABLE INSTRUMENTS. - IF DRAWER OF BILL COUNTERMANDS INSTRUC- TIONS to the drawee to pay it, he thereby dispenses with the necessity of protest and notice of dishonor to himself. NEGOTIABLE INSTRUMENTS SET-OFF. BY EXPRESS PROVISION OF ALABAMA CODE, SECTION 2684, commercial paper negotiated for value before ma- turity is not subject to set-off or recoupment. SET-OFF-PARTNERSHIP DEMAND AGAINST INDIVIDUAL CLAIM. In an ac- tion on a bill of exchange brought by an indorsee against the drawer, a demand due from the payee to a partnership of which the defendant is a member, if available as a set-off in any case, is not so available unless it is made to appear that the other partners gave their consent to such use of the claim before the assignment of it to the defendant, and that the plaintiff had knowledge of their consent. The consent given at the trial cannot be made to relate back to the date of the assignment, so as to ACTION by Frank M. Maroney against William Manning, for acceptance or payment; 4. Because there was no proof of notice to the defendant of the bill's dishonor. These several objections were overruled, and the defendant excepted. The deposition of N. Fontaine, one of the drawees of the bill, taken on interrogatories, was offered in evidence by the plaintiff. The third interrogatory was, whether the bill had ever been presented to the drawees for payment or acceptance; and the witness answered that it was sent to them in a letter by one Winston, the plaintiff's attorney, "for remittance, and was returned to him by us, by letter, as Hill, Fontaine, & Co. had been instructed by letter from William Manning not to pay the same." The defendant objected that the answer of the witness Fontaine was not responsive to the interrogatory, and had relation to the contents of a written instrument, the loss of which was not accounted for. The objection was overruled, and the defendant excepted. One Cochran, a member of the firm of Jordan, Manning, & Co., called as a witness by the plaintiff, testified that he wrote a letter to Hill, Fontaine, & Co. at the instance of the defendant instructing them not to pay the bill in suit, and the defendant admitted that he had instructed Cochran so to write; but he objected to the admission of this evidence, on the ground that the letter was not produced, nor its absence accounted for. Under the plea of set-off, the defendant offered in evidence an account for $13.84, in favor of Jordan, Manning, & Co. against L. Maroney, the payee of the bill, due November 13, 1886; also a note for $85.60, executed by said Maroney to said firm, dated December 28, 1885, and due one day after date. It was proved that these claims were unpaid, and said Cochran testified that the defendant was a member of said firm at that time, and had the consent of all the members of the firm to use the account and note as a set-off against this action. The plaintiff, while testifying, stated: "Before I bought said bill of exchange from my brother, I knew that he was indebted to said Jordan, Manning, & Co., and had been to see them twice about his indebtedness." The court instructed the jury, "that unless the defendant held and owned said note and account prior to the indorsement of said bill of exchange to the plaintiff, and the plaintiff knew, at or before the transfer and indorsement of said bill to him, of said indebtedness by La Fayette Maroney to Jordan, Manning, & Co., and that the defendant owned the same, then the defendant was not entitled to claim the same as a set-off in this action." The defendant excepted, and assigned error. Lusk and Bell, for the appellant. John G. Winston, Jr., and Watts and Son, contra. SOMERVILLE, J. The defense set up in the second pleaviz., a failure to present the bill sued on, and to give due notice of dishonor-was equally available under the plea of the general issue, and the record shows that the defendant had the full benefit of it on the trial of the cause. Sustaining the plaintiff's demurrer to this plea is, for this reason, error without injury, if error at all: Phoenix Ins. Co. v. Moog, 78 Ala. 284; 56 Am. Rep. 31. The objection interposed to the admission in evidence of the bill of exchange described in the complaint was not well taken. The instrument was averred to be the property of the plaintiff, transferred to him by the indorsement of the payee; and there was no sworn plea denying the fact of ownership. The validity of such transfer could not, therefore, be raised under the plea of the general issue: Code 1886, secs. 2676, 2770; Rule of Practice, No. 29, p. 810, Code 1886; Agee v. Medlock, 25 Ala. 281. The averment that the bill was indorsed to plaintiff by the payee is tantamount to an averment of the personal identity of the indorsee, F. M. Maroney, and the plaintiff, Frank M. Maroney. There was nothing in the objection that the paper was mutilated, because of the memorandum indorsed on it by the commissioner for the purpose of identification, when it was attached as an exhibit to the deposition of the witness Fontaine; nor in the suggestion that preliminary evidence of demand, protest, and notice of dishonor, or waiver of them, should first have been offered before offering the paper. This was mere matter of defense, not necessary to be negatived by anticipation on plaintiff's part before introducing the paper. The execution of the paper by the drawee, moreover, was sufficiently proved, and it was admissible under the other counts of the complaint. The contents of the letter written by order of the defendant, Manning, to the drawees of the bill, Hill, Fontaine, & Co., instructing them not to pay the bill, was properly admitted in evidence. We discover nothing in the record introduced on this point not entirely relevant. The drawees resided in Mem phis, Tennessee, and the letter was received by them there. Presumptively, it continued to remain out of the jurisdiction of the court, and was in Tennessee at the time of the trial. If the contrary was true, it should have been proved by the defendant. Where a paper is beyond the jurisdiction, its contents can be proved by secondary evidence without proving its loss or destruction: Young v. East Ala. R'y Co., 80 Ala. 100; Elliott v. Dyche, 80 Id. 376; Gordon v. Tweedy, 74 Id. 232; 49 Am. Rep. 813. It is objected that the statement as to the contents of the letter, which was disclosed by the witness Fontaine in his deposition, was not responsive to the third interrogatory, under which it was introduced. The inquiry made by this interrogatory was, whether the bill in suit had ever been "presented" to the drawees "for payment or acceptance." The answer shows both a presentation and excuse for nonpayment, viz., a specific instruction of the drawer not to pay. The rule is settled as one of pleading and evidence, and was long ago announced in this state, that facts which excuse demand and notice will, in law, be deemed proof of such demand and notice. Allegation of these facts may, therefore, be proved by any fact showing a waiver of them; demand and notice, and waiver of them, being in law the equivalent of each other: Kennon v. McRea, 7 Port. 175; Shirley v. Fellows, 9 Id. 300; Spann v. Baltzell, 1 Fla. 301; 46 Am. Dec. 346; Hibbard v. Russell, 16 N. H. 410; 41 Am. Dec. 733. The answer of the witness, in this view of the law, was responsive, and, as such, admissible, because the answer showed a good excuse for failure to give notice of dishonor to the defendant as drawer. "If the drawer of a bill or draft countermands payment, he thereby dispenses with presentment and notice of dishonor to himself. So if he informs the payee that he has withdrawn the funds against which the bill is drawn": 3 Randolph on Commercial Paper, sec. 1385; 2 Daniel on Negotiable Instruments, Becs. 1105, 1147; Byles on Bills, 286, 298; Jacks v. Darwin, 3 E. D. Smith, 558. This instruction not to pay, by which the drawer brought dishonor on his own paper, was equally a good excuse for failure to protest the bill; the rule being that, generally, whatever will in law excuse or amount to a waiver of notice of dishonor will equally excuse protest: 3 Randolph on Commercial Paper, Becs. 1148, 1161. In such cases, the drawer, being the real debtor, and having knowledge of the fact in advance that pay ment will be refused by the drawee by reason of his countermand, can suffer no injury from the alleged negligence of the holder: Campbell v. Webster, 2 Com. B. 258. The instructions of the court as to the set-off were correct. The bill was commercial paper, and being negotiated for value before maturity, was not subject to set-off or recoupment by the express provisions of the statute: Code 1886, sec. 2684; Bank v. Poelnitz, 61 Ala. 147. In any event, unless the defendant, Manning, was the owner of the cross-demands prior to the indorsement of the bill of exchange to the plaintiff, and this fact was known to the plaintiff before he acquired title to the bill, the set-off would not be available in an action on the bill, as in the present suit. The note and account claimed by the defendant as a set-off were the property of Jordan, Manning, & Co., a partnership of which defendant was a member. They were due by La Fayette Maroney, the payee and indorser of the bill, not by the defendant. As against such payee, they were not a legal set-off at the time of the indorsement, for want of mutuality: Cannon v. Lindsey, 85 Id. 198; 7 Am. St. Rep. 38, and cases there cited. And admitting that a partnership demand against the plaintiff in an action may, by consent of all the partners, be set off against a demand by the plaintiff against an individual partner, that principle can have no application here, because it does not appear that there was any consent of the partners to such use of their claim before the assignment of it to defendant, and that the plaintiff knew of such consent, even if that would avail. The consent given at the trial cannot relate back to the date of the assignment so as to make the set-off good against the assignor; and unless it was good against him, it cannot be so against the defendant, not being his debt, and the paper sued on being governed by the commercial law: Jones v. Blair, 57 Ala. 457; Code, secs. 1765, 2684; McKenzie v. Hunt, 32 Ala. 494. The charge given by the court recognized these principles, while the instructions refused, on request of the defendant, either ignored, or were in direct conflict with them. The rulings of the court are free from error, and the judgment is affirmed. HARMLESS ERROR. For instances of errors which work no injury, and are harmless, see Columbus etc. R'y Co. v. Bridges, 86 Ala. 448; 11 Am. St. Rep. 58, and note 64. Sustaining a demurrer to a special plea is harmless, where, under general issue, appellant had the full benefit of the matters alleged in such special plea: Jones v. State Bank, 34 Ill. 313; 85 Am. Dec. 306. |