source: Caselaw Access Project

author: The chief justice

license: Public Domain

text:
    BAILEY E. CLARK, v. ROBERT YOUNG, AND CO.
    In Virginia it is not absolutely necessary, in all cases, to sue the maker of a promissory note, to entitle the holder to an action against the indorser.
    If a promissory note of a third person be indorsed by the purchaser of goods to the vender, as a conditional payment for the goods; Quere, Whether the vender is, in any case, obliged to sue the maker of the note before he can resort to the purchaser of the goods on the original contract of sale? A suit against the defendant as indorser of the note, and a suit against the defendant for the goods sold, are upon distinct and different causes of action; and the first cannot be pleaded in bar of the second.
    It is not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for the goods sold.

      Error from the circuit court of the district of Columbia, sitting in the county of Alexandria.
    This was an action on the case for goods sold and delivered by Young and co. to Clark. The declaration had three counts; one for the price of the goods; one on a quantum valebant; and one for money had and received.
    The cause came on to be tried in the court below, on the general issue, at April term 1802.
    The facts, on the trial, appeared to be, that on the 9th of September, 1794, Young and co. sold to Clark 400 bushels of salt, at 4/3 per bushel, amounting to 283 dollars and 33 cents. At the time of the sale and delivery of the salt, Clark assigned to Young and co. a negociable promissory note, made by one Mark Edgar to Pickersgill and co. and by them indorsed to Clark, dated September 5th, 1794, for 289 dollars, payable 60 days after date, at the bank of Alexandria. That Young and co. instituted a suit in Fairfax county court, in Virginia, against Clark, on his indorsement of this note; upon the trial of which cause, Clark, by his counsel, “prayed the opi-"nion of the court, whether the plaintiffs could maintain "their action against him, previous to their having com-"menced a suit and obtained judgment against the draw-"er, or maker of the note; and until his insolvency “should appear;" "and the court gave it as their opi-"nion that they could not; and directed the jury ac-"cordingly.” Whereupon, a verdict was found for the defendant. It also appeared that at the time the note was indorsed by Clark to Young and co. as well as at the time when it became payable, Mark Edgar, the drawer of the note, was in bad circumstances, and was supposed and reputed to be insolvent. And that about the middle or last of December, 1794, he left Alexandria, and had never returned to it.

      The record which came up to this court contained three bills of exceptions :
    1. The first contained a demurrer, on the part of the defendant below, to the evidence, which the circuit court refused to compel the plaintiffs to join. This exception was abandoned by the counsel for the plaintiff in error.
    2. The second bill of exceptions was in these words, “ memorandum, in the trial of this cause, the defendant “gave in evidence to the jury, that the plaintiffs had in-“stituted a suit against him, in the county court of Fair-“fax, upon the indorsement of the promissory note of “ Mark Edgar, herein before mentioned; the proceed-“ings in which said suit are in these words, to wit:" (here was inserted the record of Fairfax county court) “Whereupon, the counsel for the defendant prayed the “ court to instruct the jury, that if, from the evidence "given in this cause, they should be of opinion, that “the promissory note aforesaid, was indorsed by the de-“fendant to the plaintiffs, in consequence of the goods, “wares, and merchandise, sold as aforesaid, (although "the said indorsement was not intended as an absolute “payment for the said goods, wares and merchandise, “or received as such by the plaintiffs, but merely as a “conditional payment thereof)” yet the receipt of the “said note, under such circumstances, and the institu-“tion of the aforesaid suit by the plaintiffs against the “ defendant upon his indorsement aforesaid, made the “note so far a payment to said plaintiffs, for the said “goods, wares and merchandises, as to preclude them “ from sustaining any action against the said defendant “for the goods, wares and merchandise, until they had ta-“ken such measures against the said Mark Edgar, as were “required by the laws of Virginia; and that the plain-“tiffs, having instituted the said suit upon the said note “against the defendant, and that having been decided “against the said plaintiffs, were barred from sustaining “this action against the said defendant. But the court “refused to give the instruction as prayed, and instructed “the jury that if they should be of opinion, from the “evidence, that the salt was sold and delivered by the “plaintiffs to the defendant, and the note was indorsed "by the defendant to the plaintiffs in consequence of the “salt sold, although the said indorsement was not in-"tended as an absolute payment, and received as such “by the plaintiffs, but merely as a conditional payment “thereof, then the same is a discharge for the salt sold, "unless it is proved that due diligence has been used by "the plaintiffs to receive the money due on the note; "but the bringing a suit against Mark Edgar, is not abso-“lutely a necessary part of said diligence: but the want of “such suit may be accounted for by the insolvency of the “said Edgar, if proved; or by the conduct of the de-“fendant himself preventing such suit; to which refusal “and direction of the court, the defendant by his coun-“sel prays leave to except,” &c.
    3. The third bill of exceptions stated, that “ the de-“fendant by his counsel then prayed the opinion of the “court and their direction to the jury, that the defend-“ant was entitled to a credit for the amount of the said “note, unless the plaintiffs could shew that they had in-“stituted a suit thereon against Edgar; or that Edgar had “taken the oath of an insolvent debtor, or had abscond-“ed, at the time the note became payable; or unless the “plaintiffs could shew that they had offered to return and “re-assign the said note to the said defendant previous to “the institution of this suit. But the court having be-“fore, in the trial of the said cause, on application by “the defendant to instruct the jury in the manner set “forth in his second bill of exceptions, given directions “to the jury, comprehending all the material points con-“tained in the above prayer, refused to give the instruc-“tion as prayed, to which refusal the defendant by his “counsel prayed leave to except,” &c.
    Verdict and judgment for the plaintiffs, for the full amount of the salt sold ; on which judgment the defendant brought a writ of error to this court.

      Swann and Mason for plaintiff in error.

      C. Lee and E. J. Lee for defendants.

      Swann.

    If a note is indorsed to the vender at the time of the sale of goods, although it is not agreed to be an absolute payment, yet it is a conditional payment, viz. if the note be paid, or if it be indorsed over by the vender, or if he is guilty of laches; 5 Term Rep. 513. Kearslake v. Morgan. In that case the plea (which was adjudged good on demurrer) stated that the note of one W. Peirce was indorsed by Morgan to Kearslake, "for and on account" of the goods sold, and that Kearslake " then and there accepted and received the note for and on account" of the sum due for the goods.
    The defendants in error, if they have been guilty of laches, have made the note their own, and must suffer the loss. 2 Wilson 353 Chamberlyn v. Delarive.

    The question then arises, what was due diligence in this case. As the law stands in Virginia, Young and co. ought to have sued Mark Edgar, the maker of the note. Such is the opinion of Judge Roane, in the case of Mackie v. Davis, 2 Wash. 230, which is confirmed by the judgment of the court of appeals in the case of Lee v. Love, in 1. Call’s Reports, 497.
    But it is unnecessary to resort to the general law in Virginia on this point, because the court of Fairfax county has decided the law in this case, and while that judgment stands unreversed it is conclusive. The plaintiffs have made their election of two modes of proceeding to recover the money-having failed in one, they are barred as to the other. The same evidence is necessary to support both, and this is the test to prove that they are for the same cause. 3 Wilson 304. Kitchen v. Campbell.

    That court has decided that Clarke was not liable on his indorsement of the note, because Young and co. had not brought suit against Edgar; or, in other words, they have decided that Young and co. have not used due diligence, and therefore have made the note their own; and if so, the original contract for the salt is at an end. Yet the court below have decided this very question differently. They have said that a suit against Edgar, was not a necessary part of due diligence. The same question, between the same parties, has been differently decided by the two courts.

      Mason, on the same side.
    The court below was concluded by the decision of the county court of Fairfax. Nemo bis vexari debet. The plaintiffs below had two modes of recovering their money from Clark, viz. by a suit for the salt sold, or by an action against Clark on his indorsement of the note. They made their election of the latter, and it has been decided against them. This ought to end the business. 3 Wilson 304. Kitchen v. Campbell.

      E. J. Lee, contra.
    The question seems to turn on the second bill of exceptions. It appears by that, that the note was not given as an absolute, but a conditional payment. It is unreasonable to suppose that the condition was that Young and co. should be obliged to prosecute a suit against Edgar through all the courts of Virginia.
    The prayer was to instruct the jury that a suit must be proved to have been prosecuted against Edgar, and his insolvency made to appear.
    The judgment of the county court of Fairfax is no bar. It was not even a bar to a second suit by Young and co. against Clark on the same note. For the opinion of that court was not generally that the suit would not lie against Clark on his indorsement, but that it would not lie against him previous to a suit against Edgar, and his insolvency, being made to appear. Therefore, after proving Edgar insolvent by a suit, Young and co. might have brought a second suit against Clark and recovered, for any thing that appears by the opinion of that court.
    If then Young and co. might have had a second action upon the note, they may well bring a suit upon their original cause of action. The opinion of the Fairfax court was only that the plaintiffs had brought their action too soon.
    It is said this is the same cause of action which has been decided in the county court of Fairfax, and that the judgment in that court is a bar to this action.

      In order to prove this, it is necessary to shew, not only that the same evidence applies to both, but the former judgment must have been upon the same point. And that point must be on the merits. 5 Bac. ab. new edition, p. 442.
    In the case of Kearslake v. Morgan, cited from 5 Term Rep. it did not appear what had become of the note; it might have been paid. Besides that was a case under the statute of Anne, which makes promissory notes a payment.
    The case of Chamberlyn v. Delarive, in 2 Wilson 353, was decided on the gross negligence of the plaintiff in holding the order four months without making a demand of the money, until the drawee failed.
    The refusal of the court below to give the instruction prayed, and the direction which they did give to the jury, are both justified by the decisions of the court of appeals of Virginia. That court has never decided, that a suit against the maker of the note is, in all cases, necessary before resort can be had to the indorser. It is true that in the case of Mackie v. Davis, Judge Roane said, that “the assignee of a bond acquires a legal right to bring “suit upon it, and to receive the money discharged from “any control of the assignor over the subject;" and that “it is, therefore, his duty to bring suit.” But that was only an obiter opinion, not applicable to the point of the cause. It is certainly not a self-evident truth, nor is it very apparent how the conclusion flows from the premises; and judge Carrington, in his opinion, in the same case p. 231, says “As to the lengths which it be-“hoves the assignee to go in pursuit of the obligor, before “he can resort to the assignor, it is unnecessary to lay down “any general rule; it may suffice to say, that in the pre-“sent case he went far enough.” In that case, indeed, a suit had been brought; but the courts of Virginia have never laid down any general rule as to what is due diligence in such a case. In the case of Lee v. Love, in Call’s reports, and Minnis v. Pollard, Call 226. it seems rather to be inferred that a suit is not in all cases necessary. In the case of Mackie v. Davis, the court decided that the remedy of the assignee of a bond against the assignor, was by the common law ; and it is clear from the case of Lambert v. Oakes, in 1 Lord Raymond 443, that, by the common law, the indorsee of a note had his remedy against the indorser, if the money was not paid by the maker of the note on demand.

    If, therefore, a suit against the maker of a note is not, in all cases, necessary to charge the indorser, the court below were right, both in refusing the instruction as prayed, and giving the opinion which they did.

      C. Lee, on the same side.
    1. The point arising from the first bill of exceptions is, that the court might well refuse to compel the plaintiffs below to join in demurrer to the evidence. This point being now agreed, I shall consider, 2. Whether the court did right in refusing the instruction to the jury, as prayed in the second bill of exceptions.
    It is not necessary to enquire whether the instruction which they did give was right, but whether they were bound to give that which was asked.
    If the note was not received at the time, as absolute payment for the salt, Young and co. had a right of action for the price of the salt, upon demand and refusal of payment of the note by Edgar. The liability of the indorser to the indorsee of a note is at common law, and not by the custom of merchants, or the statute of Anne. And by the common law, nothing more was necessary to fix that liability than a demand upon the maker of the note and his refusal to pay. Upon this, and this only, the right of action accrued against the indorser.
    It is true that Young and co. had two remedies. They might either sue Clark upon his indorsement, or upon the original contract for the fact. Having failed in the former, they are not precluded from resorting to the latter. Their election of the first is not a waiver of the last.
    The action in Fairfax county, on the note, was no bar to the action in the district of Columbia, upon the account. The note was no payment of the account, nor was the former action for the same cause as the present. The causes of action, and the evidence necessary to support them, were entirely different. The declaration in Fairfax county contained three counts. 1st. A special count on Clark’s indorsement of the note. 2d. For money lent. 3d. For money had and received.
    In the present action the declaration has also three counts-1st. for the price of the salt sold; 2d. a quantum valebat; 3d. money had and received.
    The same evidence will not support both actions. The indorsement of Clark is the evidence necessary in one. The delivery of the salt is the evidence to support the other.
    In the case of Kitchin v. Campbell, 2 Bl. Rep. 827, 831, The court said, “ The principal consideration is, whe- “ ther it be precisely the same cause of action in both, ap-“pearing by proper averments, in a plea; or by proper “facts stated in a special verdict, or a special case. One “great criterion of this identity is, that the same evidence “will sustain both the actions;" and cited Putt and Royston, 2. Shower, 211. Raym. 472. 3. Mod. 1. Pollexsen 634, Mortimer and Wingate, Moor 463. Bro. action on the case 97, 105.-And not only must it require the same evidence to support both, but in both the question must be the same.-2 Bl. Rep. Kitchin v. Campbell, p. 832-Esp. Rep. 130, Ruff v. Webb. This was an action for a servant’s wages, against his master, who had given him a draft for the full amount of his wages, on a third person, which was not stamped. And although the plea stated that he accepted it in absolute payment, yet it was held to be no bar.
    The case of Kearslake v. Morgan depends on the statute of Anne, which declares that a note given for a debt due by account, shall be a satisfaction, unless the plaintiff uses due diligence. No such statute exists in Virginia.
    In the case of Chamberlyn v. Delarive, there was no demand at all upon the drawee of the bill. Neither of those cases therefore were like the present.

      Swann, contra.
    If a note is agreed to be taken in payment absolutely, it is a satisfaction; but where there is no such agreement, the law implies a condition that the holder shall use due diligence. The county court of Fairfax has decided that Young and co. have not used due diligence. That decision is valid and conclusive all over the world until reversed by a competent authority. How then does this case stand? Young and co. sold salt to Clark, and received a note, as a conditional payment, or a collateral security, no matter which; which note they have made their own by their own laches. The maker of the note has become insolvent and run away. Who ought to bear the loss? The law says clearly, the person who has been negligent, who has not complied with the requisites of the law.
    It is immaterial whether the judgment in Fairfax, is an absolute or a temporary bar; for if it is a temporary bar only, yet Young and co. have not done what that court decided to be necessary.
    Mason, on the same side.
    A judgment on the same question between the same parties is conclusive until reversed. What is the same question? It is the real merits, the matter of right between the parties.
    The same evidence is not the criterion. Trespass and trover require different evidence; yet if the merits of the same question are the gift of both, the one is a bar to the other. Here the question was the same as in Fairfax, viz. Whether Young and co. had not been guilty of laches in respect to the note, for if they had, they had barred themselves not only from a right to recover upon the note, but upon the original contract for the salt. One and the same question will decide both cases. That question is upon the merits, and is in fact the only question in dispute between the parties.
    It is not important whether the note was received as an absolute or a conditional payment. For if it was a conditional payment, the laches of Young and co. have made it absolute. There is no evidence of notice to Clark, of the default of Edgar, until the bringing of the suit in Fairfax county, which was 18 months after the note became payable. Having two remedies for the price of the salt, Young and co. could not resort to both. They made their election to sue upon the note, and having pursued that remedy to judgment against themselves, they are forever barred.
    The county court of Fairfax have decided the only question which existed between the parties, the negligence of the plaintiffs below, whereby they had made the note their own; and therefore they must abide the loss.
    Feb. 17th.
   The chief justice

delivered the opinion of the court.

This was a suit brought by the defendants in error against the plaintiffs, in the circuit court of the district of Columbia sitting in the county of Alexandria, and the declaration contains two counts for goods, wares and merchandizes sold and delivered, and one for money had and received to their use. The cause came on to be tried on the general issue and a verdict was found for the plaintiffs below, on which the court rendered judgment.

At the trial of the cause it appeared that the suit was brought for a quantity of salt sold and delivered by Robert Young and co. to Clark; after which Clark indorsed to Robert Young and co. a promissory note made by Mark Edgar to John Pickersgill and co. which had been indorsed by them to the said Clark, and which was payable 60 days after date.

This note was protested for non-payment; after which a suit was brought thereon by Robert Young and co. in the county court of Fairfax against Clark; and the declaration contained two counts, one on the indorsement, and the other for money had and received to the use of the plaintiffs. In this suit verdict and judgment was given for the defendant Clark, the court of Fairfax being of opinion that a suit could not be maintained against the indorser of the note, until a judgment had been first obtained against the drawer, and his insolvency made to appear.

After the determination of that action, this suit was instituted on the original contract; and, at the trial, the counsel for the defendant moved the court to instruct the jury, that if from the evidence given in the cause, they should be of opinion that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandizes sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandizes, or received as such by the plaintiffs, but merely as a conditional payment thereof, yet the receipt of the said note under such circumstances, and the institution of the aforesaid suit by the said plaintiffs against the said defendant, on his indorsement aforesaid, made the said note, so far a payment to the said plaintiffs, for the said goods, wares and merchandizes, as to preclude them from sustaining any action against the said defendant for the said goods, wares and merchandizes, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia; and that the plaintiffs, having instituted the suit aforesaid upon the said note against the said defendant, and that having been decided against the said plaintiffs, they were barred from sustaining this action against the said defendant.

This instruction the court refused to give, but directed the jury, that if they were of opinion, from the evidence, that the salt was sold and delivered as alleged, and that the promissory note aforesaid was indorsed by the defendant to, the plaintiffs in consequence of the salt sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said salt or received as such by the plaintiffs, but merely as a conditional payment thereof, the same is a discharge to the defendant for the salt sold to him, unless it is proved that due diligence has been used to receive the money due on the note; but that the bringing suit on the said note against Mark Edgar was not essentially necessary to constitute the said diligence; and that the said diligence may be proved by other circumstances, and their omitting to bring the said suit against Edgar may be accounted for by the insolvency of Edgar, if proved, or any conduct of the defendant which may have prevented the bringing of the said suit.

To this opinion the counsel for the defendant excepted, and then prayed the court to direct the jury that the defendant was entitled to a credit for the amount of the said note, unless the plaintiffs could shew that they had instituted a suit thereon against Edgar, or that Edgar had taken the oath of insolvency, or absconded at the time the note became payable, or unless the plaintiffs could shew that they had offered to return and re-assign the said note to the said defendant, previous to the institution of this suit.

This direction the court refused to give, and referred the jury to their opinion already given on the principal points now stated and to which an exception had already been taken. This opinion was also excepted to. A verdict and judgment was then rendered for the plaintiff without giving credit for Edgar’s note, which judgment is now brought into this court by writ of error.

On these exceptions it has been argued that the court; has erred, because,

1st. The conduct of the plaintiffs, Young and co. has disabled them from maintaining this action, and such ought to have been the direction to the jury.

2dly. The verdict and judgment in Fairfax court is a bar to this action.

The conduct of the plaintiffs was entirely before the jury, to be judged of by them from the evidence, excepting only that part of it respecting which the court gave an opinion. We are therefore only to enquire whether the opinion given by the court be erroneous.

It is agreed on both sides that the note in this case was not received, as payment of the debt, and consequently did not extinguish the original contract. It was received as a conditional payment only, and the opinion of the court was, that in such a case the want of due diligence to receive the money due thereon would discharge the defendant. But the court proceeded to state that due diligence might be proved although no suit was instituted; and that circumstances, such as the known insolvency of Edgar, the drawer of the note, or any conduct of Clark, preventing a suit, would excuse Young and co. for not having instituted one.

This opinion of the court seems perfectly correct. The condition annexed to the receipt of the note can not be presumed to have required that a suit should be brought against a known insolvent, or that it should be brought against the will of the indorser; if he chose to dispense with it, or took means to prevent it, nothing can be more unreasonable than that he should be at liberty to avail himself of a circumstance occasioned by his own conduct.

It is not intended to say that the person receiving such a note is compellable, without special agreement, to sue upon it in any state of things. It is not designed to say that he may not, on its being protested, return it to the indorser, and resort to his original cause of action; it is only designed to say, that under the circumstances of this case, nothing can be more clear than that there was no obligation to sue.

The court gave no opinion that the suit in Fairfax was, or was not, a bar to that brought in the county of Alexandria.

It is however clear that no such bar was created.

To wave the question, whether in such a case as this, with declarations for such distinct causes, a verdict in a prior suit may be given in evidence as a bar to another suit really for the same cause of action: it is perfectly clear that in this case the same question was not tried in both causes.

In Fairfax the point decided was, that the suit against the indorser would not lie 'till a suit had been brought against the drawer; in the suit in Alexandria the point to be decided was whether the plaintiffs had lost their remedy on the original contract, by their conduct respecting the note. These were distinct points, and the merits of the latter case, were not involved in the decision of the former.

On the second bill of exceptions, the only real new point made, is, whether the action is maintainable unless Robert Young and co. had offered to return and re-assign the note before the institution of the suit.

Unquestionably Clark is entitled to the benefit of the note, but as it was no extinguishment of the original cause of action, there was no absolute necessity to prove an offer of the note before the institution of the suit. Indeed it does not appear, in this bill of exceptions, whether the note was merely a collateral security, or a conditional payment. This is no where stated positively. In the first opinion of the court it is stated hypothetically, and that opinion must be considered on the presumption that such was the fact. But no such presumption is raised respecting the second bill.

Judgment affirmed with costs.


author: The Chief Justice

text:
    WILSON v. LENOX AND MAITLAND.
    A declaration in debt, under the law of Virginia, upon a protested bill of exchange for the principal, interest, damages and cost of protest, must aver the amount of those costs of protest. Quere, whether if the holder of a bill of exchange, after due notice to the indorser of the non-payment by the drawee, charge the bill in account current against the drawer, and upon the whole of that account the balance due is less than the amount of the bill, the indorser is thereby discharged? Whether the indorser is discharged by the holder's receipt of part from the drawer, after due notice given to the indorser? Whether it be necessary to aver a protest for non-acceptance in an action on protest for nonpayment? Whether the drawer be a competent witness for the indorser in an action against the latter?

      Error to the circuit court of the district of Columbia sitting at Alexandria, on a judgment obtained by the present defendants in error, against the plaintiff in error, in an action of debt, as indorser of a bill of exchange for L.300 sterling, drawn on the 2d January, 1799, at Alexandria, by A. and W. Ramsay, on Findley, Bannatyne and co. London, at ninety days fight, payable to Wilson, the plaintiff in error, and by him indorsed to the defendants. This bill was presented for acceptance on the 28th of February, 1799, and refused, and on the 1st of June, 1799, protested for non-payment. The declaration was "of a plea that he render unto them "the sum of L.300 sterling, with damages, interest and "charges of protest, on a protested bill of exchange, which

      "to them he owes, and from them unjustly detains," and goes on to state the drawing of the bill of exchange "ac- " cording to the custom of merchants," the indorsement by Wilson to Lenox and Maitland; the refusal of Findley, Bannatyne and co. to accept the bill on its being presented for acceptance (but does not state a protest for nonacceptance, nor notice of the non-acceptance given to Wilson) and the protest, "in due form, according to the custom "of merchants," for non-payment; "of which the said " defendant afterwards, to wit, on the day of " in the year aforesaid, at the town and county "aforesaid, had notice, whereby, and by force of the "act of assembly of the commonwealth of Virginia, in " such case made and provided, action accrued to the "said plaintiffs, to demand and have of the said defend- "ant the said sum of £.300 sterling, with damages, in- "terest and charges of protest; nevertheless, the said de- "fendant, although thereto often required, hath not paid "unto the said plaintiffs the said sum of three hundred "pounds sterling, with damages, interest and charges of "protest, but the same to pay hath hitherto refused, and "still doth refuse, to the damage of the plaintiffs, 750 "dollars, and thereupon they bring suit, &c" The
    The act of assembly of Virginia, which gives the action of debt on a protested bill of exchange (revised code, p. 121) provides, "that where any bill of exchange is or "shall be drawn for the payment of any sum of money, " in which the value is or shall be expressed to be re- "ceived, and such bill is or shall be protested for non-ac- "ceptance or non-payment, the drawer, or indorser, "shall be subject to the payment of fifteen per centum "damages thereon, and the bill shall carry an interest of "five per centum per annum, from the date of the pro- "test, until the money, therein drawn for, shall be fully "satisfied and paid."
    "§ 3. It shall be lawful for any person or persons, having a right to demand any sum of money upon a "protested bill of exchange, to commence and prose " cute an action of debt, for principal, damages, interest "and charges of protest, against the drawers or indorsers "jointly, or against either of them separately; and judg- "ment shall and may be given for such principal, da- "mages and charges, and interest upon such principal, "after the rate aforesaid, to the time of such judgment, "and for the interest upon the said principal money re"covered, after the rate of five per centum per annum, "until the same shall be fully satisfied."
    “§. 4. In all bills of exchange given for any debt due “ in current money of this commonwealth, or for cur- “ rent money advanced and paid for such bills, the sum “ in current money that was paid or allowed for the same, “ shall be mentioned and expressed in such bill, and in “ default thereof, in case such bill shall be protested, and “ a suit brought for the recovery of the money due there- “ by, the sum of money expressed in such bill, shall be “ held and taken as current money, and judgment shall “ be entered accordingly.”
    “§. 6. In any action which hath been, or shall be “ commenced, and is or shall be depending for the reco- “ very of any sterling money, in any court of record “ within this commonwealth, wherein the plaintiff or “ plaintiffs shall recover, such court shall have power, and “ are hereby directed, by rule to be entered at the foot “ of their judgment in such action, to order such judg- “ ment to be levied or discharged in current money, at “ such a difference of exchange as they shall think just.”
    The cause, in the court below, was tried upon the plea of nil debet, and the jury found a verdict for the debt in the declaration mentioned, and one cent damages; it was therefore considered by the court, "that the said “ plaintiffs recover against the said defendant their debt “ aforesaid, amounting to three hundred pounds sterling, and “ their damages aforesaid, by the jurors aforesaid, in “ form aforesaid assessed, and also their costs, by them “ about their suit in this behalf expended; and the said “ defendant in mercy, &c. But his judgment (damages “ and costs excepted) is to be discharged by the payment “ of eight hundred and fifty-five dollars, twenty-three “ cents.”
    The record which came up contains fix bills of exceptions.

      1. First. That the defendant Wilson produced in evidence to the jury the accounts of the plaintiffs Lenox and Maitland, against A. and W. Ramsay, the drawers of the bill, whereby the latter were charged as debtors to Lenox and Maitland, on the 22d of August, 1799, for the amount of the bill and damages in dollars and cents, among many other debts and credits, upon which whole accounts current, a balance of 1095 dollars only appeared to be due from A. and W. Ramsay to Lenox and Maitland; and thereupon prayed the opinion of the court whether by making the said bill an item of account as stated in the aforesaid accounts against the said A. and W. Ramsay, the said Wilson was not thereby, as indorser, discharged; and the court were of opinion that he was not.
    2. Second. That the defendant offered to prove that the plaintiffs had received part of the money from the drawers of the bill since the defendant Wilson had notice of the protest, but the court were of opinion that the same, if proved, would not discharge Wilson as indorser.
    3. Third. That the defendant offered to prove by the bill and protest, that after the protest of the said bill at the request of Roberts, Curtis and co. the then holders of the bill, it was paid by Dorin, Strange and co. to Roberts, Curtis and co. for the honor of Lenox and Maitland, the plaintiffs, and thereupon prayed the opinion of the court, whether, as the bill had been so paid, this action would lie against the defendant as indorser, and the court gave it as their opinion that it would lie.
    4. Fourth. That the defendant prayed the opinion of the court, whether it was not incumbent on the plaintiffs to prove the value of current money received here for the bill upon which this action is brought, which bill is in these words: "Exchange for L.300 sterling, Alexandria, 2d " January, 1799. Ninety days after light of this our first " of exchange, (second, third and fourth of the same te- " nor and date unpaid) pay to the order of William Wil- " son, esq. the sum of three hundred pounds sterling, for " value here received, and place it to account as advised " by Andrew and William Ramsay." "To Meffrs. Find- " ley, Bannatyne and co. London." And the court gave it as their opinion, that it is not necessary for the plaintiffs to prove the value given here in current money for the said bill.
    5. Fifth. That the defendant offered to prove by the account thereunto annexed, that the bill, upon which this suit was brought, was given in the commonwealth of Virginia, either for dollars and cents due in the said commonwealth, from A. and W. Ramsay to the plaintiffs, or for dollars and cents advanced by the plaintiffs, or some other persons, for the said A. and W. Ramsay, in the state of New-York, and prayed the opinion of the court, whether, if the said facts were proved to the jury, the said bill ought not to be settled according to its nominal amount as current money of Virginia. Whereupon, the court instructed the jury, that if they were of opinion from the evidence offered, that the bill of exchange was given for any debt due from A. and W. Ramsay, in current money of the commonwealth of Virginia, or for current money advanced and paid for the said bill, and the sum in current money, that was paid or allowed for the same, is not expressed in the bill, the sum expressed in the bill shall be held and taken as current money of Virginia; and if, from the evidence offered, they should not be of that opinion, that the sum expressed in the bill shall be taken and held, as so expressed, to wit, in sterling money.
    6. Sixth. That the defendant offered to examine William Ramsay, one of the drawers of the bill, to which the counsel for the plaintiffs objected, and the court gave it as their opinion, that the said W. Ramsay was an incompetent witness in the cause.
    The second, third, fourth and fifth exceptions seem to have been abandoned in the argument in this court.

      C. Lee, E. J. Lee, and Swann for plaintiff in error.

      Simms for defendants.
    The errors infilled on by the counsel for the plaintiff in error were,
    1st. The opinion of the court below, as stated in the first bill of exceptions.

      2d. The rejection of W. Ramsay as a witness.

      3d. That there was no protect for non-acceptance of the bill.

    4th. That the declaration does not state any demand of payment of the bill, made on the drawees.
    5th. The damages are not laid in the same currency as the debt.
    6th. The jury have awarded that the sterling debt should be discharged by the payment of 855 dollars and 23 cents.

    7th. The debt demanded is not certain.

      E. J. Lee, for the plaintiff in error.
    1st. The court below erred in not instructing the jury that the defendants in error, by charging the bill in account against the drawers, in the manner stated in the accounts, had discharged the indorser. The court ought at least to have lest it to the jury to decide whether the circumstances did not amount to a discharge of Wilson.
    By the account of Lenox and Maitland against the drawers of the bill, it appears that after charging the amount of the bill, and damages, interest and charges of protest, and turning the amount into dollars and cents at such rate of exchange as the defendants in error pleased, there was only a balance of about 1000 dollars due to them from the drawers; it is not reasonable that they should recover more than is due to them against an innocent indorser who must look to insolvent drawers for his indemnification. The defendants have in fact given credit to the drawers for the amount due on the bill, and have agreed to liquidate it in account. If the holder of a bill receives part of the money from the acceptor without giving notice to the drawer, the latter is discharged. Buller N. p. 275. So if he receives part from the drawer, he discharges the indorser. Here no notice was given to Wilson;
      or if there was, it is waived by the conduct of Lenox and Maitland. In the cases of Dingwall v. Dunster, Doug. 247 (235.) it is true that judge Buller says, that nothing but an express agreement can discharge an acceptor, but the court are careful to distinguish between the case of an acceptor, and that of a drawer or indorser. The implication is, that there are many circumstances which will discharge the latter, without an express agreement. The court ought, at least, to have instructed the jury that they might infer a discharge from the circumstances of this case.

    2dly. W. Ramsay, the drawer of the bill, ought to have been admitted as a witness. He had no interest which would render him incompetent. The verdict in this case could not have been given in evidence either for or against the witness; and whether Lenox and Maitland recovered against Wilson, or not, he was still liable to an action as drawer-to Lenox and Maitland if they failed against Wilson-or to Wilson, if they succeeded. In the case of Smith qui tam v. Prager, 7 Term, rep. 62. the rule is clearly laid down to be, that “ no objection “ could be made to the competency of a witness upon the ground “ of interest, unless he were directly interested in the event of “ the suit, or could avail himself of the verdict in the cause, “ so as to give it in evidence on any suture occasion in support of “ his own interest.” The objection only goes to his credit, unless the judgment can be given in evidence for him in any other suit. The same principle is confirmed in the case of Jordaine v. Lashbrooke, 7 Term, rep. 601, where, in a suit between the indorsee and the acceptor of a bill, the payee was called and allowed as a witness to defeat the action, by proving that the bill, although dated at Hamburgh, was in fact drawn in London, and so void for want of a stamp. It may be observed in that case, that it was admitted that there could be no objection on the ground of interest, but the objection relied on was, that the witness ought not to be permitted, from motives of policy as it respected mercantile credit, to impeach a negociable instrument to which he had assisted in giving currency by his indorsement; and even that objection was over-ruled. In the case of Carter v. Pearce, 1 Term, rep. 163, the court said that, “ the bare possibility of an ac- “ tion being brought against a witness, is no objection to “ his competency;” and that “ in order to shew a witness “ interested, it is necessary to prove that he must derive a “ certain benefit from the determination of the cause one “ way or the other.”

    3dly. Here was no protest for non-acceptance, nor does the declaration state a demand of payment from the drawees, nor notice of the non-payment, or non-acceptance given to Wilson. The protest for non-payment is not evidence that the money was demanded at the time the bill became payable. 4 Bac. ab. 735, Gwyllim’s edition.

    In the case of Rushton v. Aspinall, Doug. 679. (653) it is expressly decided that the plaintiff must allege in his declaration a demand, and refusal of the acceptor on the day when the note was payable, and notice thereof to the indorser before he can be made liable; and that the want of such averments in the declaration is not cured by a verdict. And Lord Mansfield there lays down the rule to be, “ that where the plaintiff has stated his title “ or ground of action defectively or inaccurately (because, “ to entitle him to recover, all circumstances necessary in, “ form and substance, to complete the title so imperfectly “ stated, must be proved at the trial) it is a fair presump- “ tion, after a vereict, that they were proved , but that “ where the plaintiff totally omits to state his title or “ cause of action, it need not be proved at the trial, and “ therefore there is no room for presumption.”
    The demand and refusal of the drawee to pay is the very substance of the plaintiffs’ title to recover; and therefore the not setting it forth in the declaration is a total omission of his cause of action.
    4th. The damages are not laid in the same currency with the bills and the promise. To support this objection he relied on the decision of the court of appeals of Virginia, in the case of Scott's executors v. Call, 1 Wash. Rep. 115, and Skipwith v. Baird, 2 Wash. 165.

      C. Lee, on the same side.
    1st. The question to the court below was whether the plaintiffs by making the bills an item of the accounts, as therein stated, had not discharged the indorser Wilson. The accounts of Lenox and Maitland against the drawers of the bill, begin in 1798 and end in 1800. The bills are entered in account, on the 22d of August 1799, and charged with interest and damages; and the amount carried out from sterling into dollars and cents, at such rate of exchange as the defendants in error pleased. They have therefore changed the nature of the demand, and given credit to the drawers for a certain sum in the currency of the United States. They have, as far as they were able, manifested their intention to give credit to A. and W. Ramsay.
    These circumstances being subsequent to the notice to Wilson are a discharge in law, and are equivalent to an express discharge. If I am right the court ought to have instructed the jury that these facts discharged all persons but A. and W. Ramsay. Perhaps the court might have left it to the jury to infer an intention to discharge the indorser; but the court ought not to have instructed the jury that Wilson was not thereby discharged as indorser.
    2d. The objection to the competency of W. Ramsay as a witness was not good. If he had any interest, it was in favor of the plaintiffs. The objection was made generally and goes to his proving any fail whatever. A witness may be competent to prove some facts and not others. Pie was competent to prove, not only that the bill was charged in account, but that it was given up, and came surreptitiously to the possession of the plaintiff’s, if the fact had been so. I state this only to shew that he ought not to have been wholly excluded. On a criminal prosecution for forgery, the party, whose name is forged, may be a witness, 1 Dall. 110. The doctrine that a man shall not be permitted to disprove a paper to which he has put his name to give it credit, is over-ruled in the case of Jordane and Lashbrooke cited from 7 Term. Rep. 601. In the case of Walpole v. Pulteney, cited in Doug. 249 ( 237. )in the note, at the second trial of the cause at Guildhall at the sittings after Michaelmas term 1779, before Skynner, chief Baron, Alexander, the indorser of the bill was sworn as a witness for the acceptor, and no objection made to his competency. But in this case there is not any interest whatever in the witness. For if the evidence of Ramsay went to discharge Wilson, (till it would not go to discharge Ramsay itself. There is a case also in Espinasse’s reports, in which the acceptor was sworn as a witness in a question between the indorsee and drawer.

      Simms, contra.
    1st. The charge of the bill in account against the drawers, does not amount to a legal discharge of the indorser. It is neither an express or an implied discharge. The holder has a remedy against all or any of the indorsers or the drawer, until he gets full satisfaction. If he gives due notice to the party to whom he means to resort, he is not bound to commence suit instanter. If he receives part from the drawer, it is so much to the benefit of the indorser, and he has no right to complain. Due notice is all that the indorser has a right to require, and if he does not then secure himself, it is his own fault. The case from Buller, N. P. 275, is not denied to be law; but Buller there says, “ if the indorsee give credit to the “ drawer, without notice to the indorser, it will discharge “ him.” But here it is admitted that notice was given, and the allegation is, that notwithstanding such notice, the subsequent charge in the accounts of Lenox and Maitland against the drawers has discharged the indorser.
    Lenox and Maitland might have brought suit against the drawers, without prejudice to their claim against the indorser; a fortiori, the charging a bill in account against the drawers cannot prejudice the claim against the indorser.
    2d. W. Ramsay was offered as a witness generally, without a release from Wilson. The court were right in rejecting him both on the grounds of interest and of public policy.
    If judgment should be rendered against Wilson, Ramsay as drawer would be clearly liable to refund Wilson the costs of suit; and a relief from that liability was a clear interest.
    A party to a negociable paper ought not to be permitted to discredit it.
    An underwriter can not be a witness for another underwriter in an action upon the same policy.
    The case in Doug. 247, does not affect the present. The note in 249, is of an ancient case; and there Walpole’s own book was produced with a memorandum that Pulteney was discharged from his liability as acceptor.
    All the cases cited are where a party to the bill has been admitted as a witness either ex necessitate, or on the ground of public conveniency and policy. The case of Jordane v, Lashbrooke, was one where the revenue would have been defrauded of the stamp duty, if the witness had been excluded; and to prevent that evil he was admitted.
    In the cases of usury the maker of the note or other security is not admitted unless the debt has been paid. And in the case of forgery, it is a public criminal prosecution in which the injured party is always admitted.
    The fault of the declaration, if it does exist, is cured by the verdict under the statute of jeofails of Virginia, which declares, that no judgment after verdict shall be stayed or reversed, for mispleading, insufficient pleading, or for omitting the averment of any matter, without proving which, the jury ought not to have given such verdict. Rev. Code, 118. But the averment was not necessary. The declaration contains an allegation that the bill was protested in due form, according to the custom of merchants, for non-payment; and by the custom of merchants, the bill could not have been protested until demand and refusal of payment.

      But this action is grounded on the act of assembly, and not on the custom of merchants; and by the act it is only necessary that it should be a protested bill of exchange.
    As to notice of the non-acceptance and non-payment not being alleged in the declaration, the fact is not so. The declaration alleges that the bill was presented for acceptance and refused; and afterwards, on the 1st of June, protested in due form according to the customs of merchants for non-payment; of which, (that is, of all the facts before recited) the defendant had notice, &c.
    As to the damages being laid in current money; this is always done when tobacco, or foreign money is sued for. There are some unintelligible cases in the court of appeals of Virginia; but they have never decided the present point. In one case the court said that if the suit is for a sterling debt, its value must not be laid in current money, because the law of Virginia authorizes an action of debt for sterling money.

      Simms, on a subsequent day, stated that a demand of payment was not necessary where the bill was not accepted, and cited Lilly’s entries, 44 and 45. The declaration states the non-acceptance, and the protest for non-payment.

    He also mentioned a case in Peake’s reports, where a party to a bill of exchange was refused as a witness; but did not produce the book.

      Swann, in reply.
    1. The plaintiffs below having assumed a rate of exchange, and charged the amount in account against the drawers, is conclusive evidence of their intention to extinguish the sterling debt.
    2. The jury have awarded that the sterling debt should be discharged by the payment of 800 dollars; the balance of the account therefore, and not the rate of exchange, must have been the guide of the jury.
    3. The testimony of Ramsay was not to destroy the paper, but to explain the nature of the consideration; to shew that it was given for current money of Virginia, so as to bring it within the operation of the 4th section of the act of assembly respecting bills of exchange given for current money due in Virginia. This act applies as well between indorsee and indorser, as between payee and drawer; and if the bill was given for current money due in Virginia, the sum mentioned in the bill is to be taken as current money, and not as sterling.
    4. A protest for non-acceptance, and a demand of payment from the drawee, at the time the bill became payable, were requisite to enable the plaintiffs below to recover. Kyd on bills, 76, 87. It being an action on the statute makes no difference, because the statute gives the action only to such persons as have “ a right to demand any " sum of money upon a protected bill of exchange.” The holder, therefore, must shew a right to demand the money, independent of the provisions of the statute; and to ascertain whether he has such a right, we must resort to the custom of merchants, and see whether he has complied with all the requisites of that custom.
    5. This is an action of debt; and the demand is uncertain. The debt demanded is the principal, damages, interest and charges of protest, without stating the amount of the charges of protest. The principal is certain, because it is stated to be £.300; and the damages and interest are certain, because the law has ascertained their relative proportion to the principal; but there is nothing in the declaration by which the amount of the charges of protest can be rendered certain.
    6. The damages ought to have been laid in sterling and not in dollars. The damages follow the nature of the debt. The act of assembly has authorised sterling debts to be sued for and recovered as such. Sterling money is not to be considered as foreign money, 2 Wash. 165, Skipwith, v. Baird. The court of appeals of Virginia in that case decided that the damages must be laid in sterling.

    The court are to fix the rate of exchange; but here the jury have awarded at what sum in current money, the sterling debt should be paid, and it is evident that the 800 dollars which the jury said should discharge the debt, is not the exchange but the balance of account.

      Simms cited 3 Dall. 365, Brown v. Barry, to shew that a protest for non-acceptance was not necessary; and that a protest for non-payment being alleged in the declaration, it was not necessary to aver a demand of payment from the drawee.

      C. Lee. The act of jeofails in Virginia is construed to be the same as that of England, although the words are somewhat broader. 2. Wash. 203. Stevens v. White.

    Feb. 22d. At a subsequent day, the court having suggested an error, not noticed by the counsel, or not much relied on at the argument, as being apparently fatal, viz. that the costs of protest which are uncertain are joined as part of the debt declared for.

      Simms, for defendants in error,
    was now permitted to support the declaration.
    1st. The declaration is sufficiently certain. An action of debt will lie for what may easily be reduced to a certainty.
    Nothing can be more easily ascertained and rendered certain than charges of protest on a protested bill of exchange. They always appear upon the protest; and the indorsement on the protest is always considered as evidence of their amount. No other evidence is ever required.
    Debt may be brought for a sum capable of being ascertained, though not ascertained at the time of the action brought. Doug. 6. Walker v. Witter. It is not necessary that the plaintiff in debt should recover the exact sum demanded; same case and page. 2 W. Bl. Rep. 1221, Aylett v. Love. If so, then a demand of the charges of protest on a protested bill of exchange particularly described in the declaration, is good, because the sum or amount of those charges is capable of being ascertained by the protest without further evidence.
    It is admitted that the amount of damages or interest need not be stated in the declaration.
    To ascertain the amount of interest, reference must be had to the protest, to find its date, from which time the interest begins to accrue; a reference to the same protest will ascertain the amount of charges.
    2d. But if the charges of protest are not demanded with sufficient certainty, yet the judgment ought not to be reversed on that account; because the judgment is not rendered for the charges of protest, but is rendered for £.300 sterling, the principal of the bill. It is now well settled that in an action of debt, judgment may be rendered for less than is demanded in the declaration. Doug. 6. Walker v. Witter. I H. Blackstone, 249, M'Quillin v. Cox.

      In the present case the demand is for the principal sum drawn for by the bill of exchange, with damages, interest and charges of protest thereon. It appears by the record and by the evidence produced by the plaintiffs in error, which is made a part of the record, that a part only of the original demand on the bill was clue, the residue having been settled and paid. Shall the judgment then be reversed for not stating the amount of the charges of protest, which had been previously paid, and for which the judgment was not rendered?
    No other action can be brought by Lenox and Maitland against Wilson for the charges of protest on the bill of exchange, stated in the declaration; no judgment has been rendered for them in the present action. How then has he been injured, or how can he be injured by the omission to state the amount of the charges in the declaration?
    In the declaration four distinct things are demanded, viz. 1, the principal; 2, the damages on the protest; 3, the interest; 4, the charges of protest.
    I take it to be settled law, that if a declaration be good in part, though bad as to another part, the plaintiff is entitled to judgment for so much as is well alleged, especially if it be not of an entire demand.
    An action of debt might be brought for the principal sum due on a bill of exchange, without including the damages, interest and charges of protest. If then an action of debt be brought for the principal, damages, interest and charges of protest, and the damages, interest and charges of protest, or either of them, should not be demanded with sufficient certainty, it would not be error to render judgment for that which was sufficiently alleged.
    In this case the principal sum is demanded with sufficient certainty, and for the principal sum only is the judgment rendered. Cro. Jac. 104. Woody’s case. 4 Bac. ab. 25, 26.

      A man shall not reverse a judgment for error, if he cannot shew that the error is to his disadvantage. 5 Co. 39, (b.) Tey's case. It appears by the record that judgment was not rendered for the charges of protest, therefore the plaintiff in error has sustained no damage or injury by reason of not alleging in the declaration the amount of the charges of protest.
    3d. If the omission of the amount of the charges of protest could in any stage of the proceedings be considered as an error, it is cured by the verdict. By the act of assembly of Virginia, (rev. code, p. 118.) it is declared that after a verdict of twelve men, no judgment shall be stayed or reversed, for any mispleading or insufficient pleading. The omission, if it is an error, must be one or the other. In Jacob’s Law Dict. it is said to be mispleading if any thing be omitted that is essential to the action or defence.
    The title to recover in the action is the protested bill of exchange; that is set forth in the declaration. The title, therefore, is not wholly defective in itself, though it may be set forth defectively in not stating the amount of the charges of protest: so that it comes within the rule in the case of Rushton v. Aspinall, and 1 Call, 98, Vafs v. Chichester.

    The court is not bound to enquire into errors, if the party does not shew them. 2 Bac. ab. 217.

      E. J. Lee, in reply.
    The case of Walker v. Witter in Doug. 6, does not say that the sum demanded may be uncertain, but only that you may recover a less sum than that demanded. The demand must be certainly expressed, if it be possible, at the time of bringing the action.
    In the cases of Scott’s exr. v. Call, 1 Wash. 115, and Skipwith v. Baird, 2 Wash. 165, the amount of the charges of protest are particularly mentioned; in one they were 4/6, in the other 7/8.

      Feb. 26.

        Chief Justice.-Docs the bill of exceptions state that notice was not given to Wilson ? If it does not you can not argue upon the want of notice. tice, E. J.

        E. J. Lee.-It does not. But the declaration does not allege notice of the non-acceptance, nor of the non-payment ; but only of the protest for non-payment, and a material fact not averred can not be presumed to have been proved.

         Chafe, Justice. There is no doubt a drawer or indorser maybe discharged in express terms; or by facts amounting to a discharge; but where the discharge is not express but by implication arising from facts, the jury, and not the court, are to decide whether it is a discharge; the court ought not to say it was a discharge.

         Chafe, Justice. Upon the statute of gaming, usury and the like, but in no other case, are the drawers, indorsers, &c. competent witnesses. The cases all shew it.

        Chafe, Justice.—A protest for non-acceptance is absolutely necessary in the case of a foreign bill.

       The fact does not so appear in the record.

         Chief Justice.—The law has been so construed in Virginia.

         Chief Justice In that case the court spake of the damages which constitute part of the debt in an action under the statute upon a bill of exchange, and not of those damages, which are demanded at the end of the declaration for the non payment of that debt. There is no such decision respecting the latter.

        Chafe, Justice. If you have no law of Virginia authorising such a judgment, it is bad, because at common law no condition or alternative can be added to the judgment. It is not a good judgment at common law.

        Chief Justice. If it is bad, the defendant cannot complain. It is for his benefit
      Chafe, Justice. That may be the opinion of the chief justice ; but I have considered the question in a greater case than this I am well satisfied (and it will be difficult to alter my opinion) that at common law no condition can be annexed to a judgment.

        Simms. It is the practice of Virginia. The law of Virginia allows discounts to actions of debt, and the judgment is to be rendered for the debt,to be discharged by the sum really due.

        Chief Justice. The decisions have been so, although the statute of Virginia is broader than the English statute. The general principle decided by the court of appeals of Virginia is, that a verdict will not cure the want of an averment of a material fact which goes to the gift of the action.

   The Chief Justice

delivered the opinion of the court.

In this case there was an objection taken to the plaintiffs’ declaration, which was in debt on a protested bill of exchange. The declaration claims £ 300 sterling, with damages, interest and charges of protest, on a protested bill of exchange, without stating, in any part of it, the amount of those charges. The verdict is for the debt in the declaration mentioned, on which judgment is rendered, to be discharged by a less sum.

The objection is, that the demand is uncertain, in as much as the amount of the charges of protest, which constitute a part of the debt claimed, is not stated.

The clause of the act on which this suit is instituted is in these words, “ It shall be lawful for any person or “ persons,” &c “to prosecute an action of debt, for prin- cipal, damages, interest, and charges of protest against the “ drawers,” &c. The charges of protest constitute an essential part of the debt, and the declaration would not pursue the act, if those charges should be omitted. This part therefore cannot be considered as surplussage. It is a component part of the debt for which the action is given. Being a necessary part, its amount ought to be stated with as much certainty as the amount of the bill.

As this is a mere technical objection, the court would disregard it, if it was not a principle, deemed essential in the action of debt, that the declaration should state the demand with certainty.

The cases cited by the counsel for the defendant in error, do not come up to this case. They relate to different debts; this to a single debt composed of different parts.

Judgment reversed and arrested.

See the case of Rudder v. Price, 1 H. Bl. reports, 550.


author: The court

text:
    CLARKE v. BAZADONE.
    A writ of error does not lie from the supreme court of the U. States to the general court for the Territory north-west of the Ohio.
    This was a writ of error issued from this court to the general court for the territory north-west of the river Ohio, to reverse a judgment rendered in that court against Clarke, the plaintiff in error, in favor of Bazadone, on a foreign attachment for 12,200 dollars damages, and 95 dollars, and 30 cents costs.
    The general court of the North-western Territory was established by the ordinance of the old congress, under the consideration, and the principal question was, whether a writ of error would lay from this court to the general court of that Territory.
    There was no appearance for the defendant in error.
    Mason, for plaintiff in error,
    contended,
    1st. That this court possesses a general superintending power over all the other courts of the United States, resulting from the nature of a supreme court, independent of any express provisions of the constitution or laws of the United States.
    2d. That this court has the power under the constitution of the United States.
    1st. It is a general principle that the proceedings of an inferior tribunal are to be corrected by the superior, unless the latter is expressly restrained from exercising such a control. This is a principle of the laws of that country from which we derive most of our principles of jurisprudence, and is so intimately connected with them that it is difficult to separate them.
    In the Saxon times, the Wittenagemote was the supreme court, and had the general superintendance.
    But in the time of William the conqueror, the aula regis was established as the sovereign court of the kingdom, and to that court devolved all the former judicial power of the Wittenagemote; the power of superintending the other courts was derived from the principle of supremacy. 1 Crompton's practice, 3, 5, 12, 21, 22, 26, 27, 28. 1 Bac ab. 553. 2 Bac. ab. 187. A writ of error is a commission to judges of a superior court, by which they are authorized to examine the record, upon which a judgment was given in an inferior court, and on such examination to reverse or affirm the same, according to law.
    2. Bac. ab. 2'3. The court of king’s bench superintends the proceedings of all other inferior courts, and by the plenitude of its power, corrects the errors of those courts; hence it is that a writ of error lies in that court, of a judgment given in the king’s bench in Ireland. And upon a judgment in Calais, when under the subjection of the king of England, a writ of error lay in the king’s bench, 4 Inst. 282. A writ of error would have laid to the king’s bench from these colonies, before the revolution, but for the particular provisions of charters, &c. 2 Bac ab. 194. Wherever a new jurisdiction is erected by act of parliament, and the court acts as a court of record, according to the course of the common law, a writ of error lies on their judgments.
    The power is inherent in every superior court, to revise the judgments of its inferior.
    2d. By the constitution of the United States, art. 3, sec. 1, 2, the judicial power is vested in one supreme court and such inferior courts as congress shall, from time to time, ordain and establish; and shall extend to all cases arising under the constitution, and laws of the United States, and to controversies in which the United States shall be a party. And the supreme court is to have appellate jurisdiction in all these cases, with such exceptions and under such regulations as congress shall make. Congress has made no exception of the present case; and no regulation of congress was necessary to give this court the appellate power. It derives it from the constitution itself.
    This is a case arising under the laws of the United States.

      The very existence of the court whose judgment is complained of, is derived from the United States. The laws adopted for the North-western Territory derive their whole obligatory effect from the ordinance of the old congress, and are in fact, laws of the United States, although copied from state laws. All power and authority exercised in that territory have emanated from the United States; and all offences there committed are against the authority of the United States.
    If then this is a case by the constitution cognizable by the judicial authority of the United States; if by the constitution, this court has appellate jurisdiction in all such cases, and if this case is not within any exception made by the constitution or by any act of congress, nothing is wanting but to devise a mode to bring the cause before this court. The writ of error is the common and well known process in like cases, and by the fourteenth section of the judiciary act of 1789, every court of the United States is expressly authorized " to issue writs of scire facias, “ habeas corpus, and all other writs not specially provided “ for by statute, which may be necessary for the exercise of “ their respective jurisdictions, and agreeable to the princi- “ ples and usages of law.” If then the court has jurisdiction, no difficulty can occur as to a mode of exercising it.
   The court

quashed the writ of error,

On the ground that the act of congress had not authorized an appeal or writ of error, from the general court of the North-western Territory, and therefore, although from the manifest errors on the face of the record, they felt every disposition to support the writ of error, they were of opinion they could not take cognizance of the case.