Leeds v. Marine Insurance Co. 6 W. affidavit, such as it now appears to this court, that court would not have taken upon itself to deprive the legal plaintiff of a legal advantage, in favor of the assignee of a chose in action, where the equity of the case was so strong in favor of the legal plaintiff. It is obvious, that the principal difficulties in this case arise from the inverted and peculiar state of the parties. Hodgson, (and with him his indorser,) who is really the party to be relieved, appears in the character of defendant, and the question presents itself, why should the underwriters be at liberty to quit their hold upon their note for indemnity and come upon the judgment holder on the policy for satisfaction in the first instance? But to this several answers present themselves. Why, if the underwriters had several remedies, should they, by the act of the opposite party, be deprived of any one of them? [* 570] Why, if they might legally have availed themselves of their remedy by discount, should they now be deprived of it because they were prevented, unconscientiously, by their antagonist, from asserting it in its proper place? And why, if they can in this way certainly save their money, should they be put to the risk and labor of prosecuting a recovery upon their note? But the case affords another answer of a more general nature. Notwithstanding Hodgson's insolvency, his claims upon this policy remain unpaid, if it be only for the purpose of shielding his indorsers; and notwithstanding his appearance here as a co-defendant, it is obvious that dismissing this bill must give rise to new suits between the persons liable to pay this note, and the assignee of Straas's interest under the policy. This consideration affords the additional reason, that entertaining this suit terminates litigation, and the reverse would be the consequence of dismissing this bill. If having been deprived by his antagonist of his remedy at law, is a sufficient ground for entertaining the suit of the complainant, it is certainly no objection to it, that relief is at the same time extended to one who, though nominally a co-defendant, is essentially a co-plaintiff, and might have been made such. Had he been made such, the case would have presented fewer difficulties. If Straas himself could not have demanded of Hodgson this policy, or the money recovered on it, without securing him against the premium note, neither can his assignee. Even the [571] courts of law have recognized the lien of a broker on a chose in action for a general balance of account, and much more so ought a court of equity in the application of a principle so peculiarly its own, as that which gives effect to a transfer by assignment of a chose in action not in its nature negotiable. The Union Bank v. Hyde. 6 W. The parties in this case sue only. to be restored to their legal advantages; as that cannot be done specifically, they certainly have a claim on this court to secure to them all the beneficial consequences that would have resulted from them. And as Straas's interest in The Hope would have been amply sufficient to enable Hodgson to pay this premium note, had the money on the policy come into his hands, there is nothing unreasonable in making it, in the hands of the officer of this court, subject to be disposed of in the same manner. Let it be distinctly understood that the court does not, in this decision, countenance the idea that a separate debt may be set off to a joint action. The debtor and creditor at law are the same. And upon Hodgson's reducing the money into possession, the same identity of parties would exist. For Leeds and Straas do not appear in the case at all, in the relation of copartners in trade, but Leeds himself represents them as holding distinct interests, although in the same subject. Leeds's defence rests altogether on Straas's assignment, not on their blended rights; nor does he pretend to ignorance of the offset now contended for, when he took the assignment, but only observes, with a view, it is presumed, to show he had no reason to believe it to be a subsisting * debt, [*572] that it was at that time enjoined before the chancellor of Virginia. This is setting up a wrong in Straas to support a right in his assignee. Decree affirmed. THE UNION BANK V. HYDE. 6 W. 572. A protest of an inland bill or promissory note is not necessary, nor is it evidence of the facts stated in it. The following undertaking of the indorser of a promissory note: "I do request that hereafter any notes that may fall due in the Union Bank, on which I am or may be indorser shall not be protested, as I will consider myself bound in the same manner as if the said notes had been or should be legally protested," held to be a waiver of demand and notice; both parties having had a course of dealing founded on that construction. ERROR to the circuit court for the District of Columbia. Jones, for the plaintiff in error. Swann and Key, for the defendant in error. JOHNSON, J., delivered the opinion of the court. This cause turns upon the construction of a written instrument in these words: "I do request that hereafter [573] The Union Bank v. Hyde. 6 W. any notes that may fall due in the Union Bank, on which I am or may be indorser shall not be protested, as I will consider myself bound in the same manner as if the said notes had been or should be legally protested. (Signed) THOMAS HYDE." Two constructions have been contended for: the one, literal, formal, vernacular; the other, resting on the spirit and meaning, as a mercantile and bank transaction. The former has been sustained in the court below, and the correctness of that opinion is now to be examined. The defendant, it appears, became indorser to one Foyles, and the note was discounted in the Union Bank: on its falling due, it is admitted that no demand was made on the drawer, or notice given to the indorser. The case presents the right of the plaintiffs under two aspects: 1. Upon the just construction of the written instrument. 2. The practical exposition of it by the defendant himself; and it might also have presented a third: the specific waiver of demand and notice on the note in suit. By some assumed analogy, or mistaken notions of law, this practice of protesting inland bills, has now become very generally prevalent; and since the inundation of the country with bank transactions, and the general resort to this mode of exposing the breaches of punctuality which occur upon [*574] notes, a solemnity, cogency, and legal effect have been given to such protests in public opinion, which certainly has no foundation in the law-merchant. The nullity of a protest on the legal obligations of the parties to an inland bill, is tested by the consideration that, independently of statutory provision (if any exists anywhere) or conventional understanding, the protest on an inland bill is no evidence in a court of justice of either of the incidents. which convert the conditional undertaking of an indorser into an absolute assumption. * The protest belongs altogether to foreign mercantile transactions, upon which, on the contrary, it is an indispensable incident to making a drawer of a bill, or indorser of a note, liable. On foreign bills, it is the evidence of demand, and an indispensable step towards the legal notice of non-payment, in consequence of which the undertaking of the drawer or indorser becomes absolute. Hence, as to foreign transactions, it is justly predicated of a protest, that it has a legal or binding effect. But the writing under consideration has reference exclusively to inland bills, and as to them the protest has no legal or binding effect. The Union Bank v. Hyde. 6 W. The indorser became liable only on demand and notice, and of these facts the protest is no evidence. How, then, shall the waiver of the protest be adjudged a waiver of demand and notice, or in effect convert his conditional into an absolute undertaking? Had the defendant omitted one word from his undertaking, it would have been difficult to maintain an affirmative answer to this proposition. But what are we to understand him [* 575 ] to intend, when he says: "I will consider myself bound in the same manner as if said notes had been or should be legally protested?" Except as to foreign bills, a protest has no legal binding effect, and as to them it is evidence of demand, and incident to legal notice. It either then had this meaning or it had none. This reasoning, it may be said, goes no further than to a waiver of the demand; but what effect is to be given to the word bound? It must be to pay the debt, or it means nothing. But to cast on the indorser of a foreign bill an obligation to take it up, protest alone is not sufficient; he is still entitled to a reasonable notice in addition to the technical notice communicated by the protest. To bind him to pay the debt, all these incidents were indispensable, and may, therefore, be well supposed to have been in contemplation of the parties, when entering into this contract. It It is not unworthy of remark, that the writing under consideration asks a boon of the plaintiff, for which it tenders a consideration. requests to be exempted from an expense, exposure, or mortification, on the one hand; and on the other, what is tendered in return? The intended object and conceived effect of the protest on the one hand, is to convert his undertaking into an unconditional assumption, and the natural return is to make his undertaking at once absolute, as the effectual means of obtaining the benefit solicited. If this course of reasoning should not be held conclusive, * it would at least be sufficient to prove the language of [*576] the undertaking equivocal; and that the sense in which the parties used the words in which they express themselves, may fairly be sought in the practical exposition furnished by their own conduct, or the conventional use of language established by their own customs or received opinions. On this point the evidence proves that, by the understanding of both parties, this writing did dispense with demand and refusal; that the company, on the one hand, discontinued their practice of putting the notes indorsed by defendant in the usual course for rendering his assumption absolute, and the defendant, on the other, continued up to the last moment to acquiesce in this practice, by renewing his indorsements without ever requiring demand or notice. Clark v. Graham. 6 W. This was an unequivocal acquiescence in the sense given by the company to his undertaking, and he cannot be permitted to lie by, and lull the company into a state of security, of which he might at any moment avail himself, after making the most of the credit thus acquired. Judgment reversed, and venire facias de novo awarded. 4 H. 262. CLARK et al. v. GRAHAM. 6 W. 577. A title to lands can only be acquired and lost according to the laws of the State in which they are situate. The laws of Ohio require all deeds of land to be executed in the presence of two witnesses, and a deed executed in the presence of one witness only is void. A parol exchange of lands, or parol evidence, that a conveyance was intended to operate as an exchange, will not convey any estate or interest in lands. TODD, J., delivered the opinion of the court in this cause, which was submitted without argument. This is an action of ejectment brought in the circuit court for the district of Ohio. At the trial, the plaintiff proved a title sufficient in law, primâ facie, to maintain the action. The controversy turned altogether upon the title set up by the defendants. That title was as follows: A letter of attorney, purporting to be executed by John Graham, bearing date the 23d of September, 1805, authorizing Nathaniel Massie to sell all his estate, &c., in all his lands in Ohio. This power was executed in the presence of two witnesses in Richmond, in Virginia, and was there acknowledged by Graham before a notary public. [* 578] * Nathaniel Massie, by a deed dated the 7th day of June, 1810, and executed by him in Ohio, in his own right, as well as attorney to John Graham, conveyed to one Jacob Smith, under whom the defendants claimed the land in controversy. This deed was executed in the presence of one witness only, and was duly acknowledged and recorded in the proper county in Ohio. The deed and letter of attorney, so executed and acknowledged, were offered in evidence by the defendants, and were rejected by the court, upon the ground that they were not sufficient to convey lands according to the laws of Ohio. The defendants also offered in evidence a deed from Jacob Smith and wife, to the said Graham, dated the 7th of March, 1811, duly witnessed, acknowledged, and recorded, conveying a certain tract of land in Ohio, and offered further to prove, that the tract of land so conveyed was given in exchange for and in |