
3 U.S. 415 (____)
3 Dall. 415
CLARKE
versus
RUSSEL.
Supreme Court of United States.

*419 The general errors being assigned, and issue being joined on the plea in nullo est erratum, the cause was argued by Lee, the Attorney General, Howell (of Rhode-Island) and Ingersoll, for the Plaintiff in error; and by E. Tilghman, Dexter (of Massachusetts) and Robbins (of Rhode-Island) for the Defendant in error.[*]
*424 The opinion of the Court, after some days deliberation, was delivered by the Chief Justice, in the following terms.
ELLSWORTH, Chief Justice.
This cause comes up on a bill of exceptions, on the face of which three exceptions appear.
1. First, that bills of exchange, which had been non-accepted, and protested for non-payment, were admitted in evidence unaccompanied by protests for non-acceptance.
According to a general rule, laid down by this Court, in the case of Barry and Brown, from Virginia, and from which rule there appear no special circumstances to exempt the present case, this exception will not hold.
2. A further exception is, that the Judge in his charge to the Jury, held, that the two letters from the Defendants to the Plaintiff below, of the 20th and 21st of January 1796, which were set up to prove an undertaking, or guarrantee, might be explained by parol testimony; of which kind of testimony some had passed to the jury, without objection, but for what purpose does not now appear, as there were divers Counts, some of which parol testimony might have supported.
The undertaking declared upon, in the Count, to which the verdict applies, being for the duty of another, it must, to save it from the statute of frauds, and perjuries, be in writing, and wholly so. The two letters, therefore, which are relied upon as the written agreement, cannot be added to, or varied, by parol testimony. Nor can they be so far explained by parol testimony, as to affect their import, with regard to the supposed *425 undertaking. The charge then, of the Judge, that "they might be explained by parol testimony," expressed as a general rule, and without any qualifications, or restrictions, was too broad; and may have misled the jury. On this ground there must be a reversal.
3. It is, therefore, unnecessary to decide the remaining question  Whether the two letters did, of themselves, import an undertaking, or guarrantee? It may be proper to suggest, however, that a majority of the Court, at present, incline to the opinion that they do not.[*]
Judgment reversed, and a Venire de novo awarded.
NOTES
[*]  ELLSWORTH, Chief Justice. On this point, I would wish to see any authorities that distinguish between solemn instruments, and loose commercial memoranda. There is seemingly a distinction in principle; though I do not recollect, that it is expressly recognized by any writer on the law. I will, for instance, state this case;  A and B being at a wharf, the former says to the latter, "I will sell you my ship John." B asks an hour to think of the proposition; goes home; and shortly after sends a note to A in these words  "I will take your ship John:" May not the party go beyond the note, to explain, by existing circumstances, the word take, which, according to existing circumstances, will equally embrace a purchase, a charter-party, and a capture? This exemplification will serve to convey my general idea; and it, evidently, includes many caes of daily occurrence in commercial transactions.
[]  On opening the case, Howell observed, that it was necessary, he presumed, to call on the Judge, who presided at the trial, to acknowledge his seal affixed to the bill of exceptions.

ELLSWORTH, Chief Justice. The bill of exceptions is part of the record, and comes up with it. For that reason, the acknowledgment of the Judge's seal is unnecessary. But if the bill of exceptions had not been tacked to the record, such an acknowledgment might have been proper.
See Bull, N. P. 317, 319.
