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WILSON without a release from Wilson. The court were right in

rejecting him both on the grounds of interest and of public AL

.

If judgment should be rendered against Wilson, Ramsay as drawer would be clearly liable to refund Wilson the colts 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 thall 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 fuch verdiæ. Rev. Code, u18. But the averment was not necessary. The declaration contains an allegation that the bill was proteitcd 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, Wilson and not on the custom of merchants; and by the act it is only necessary that it should be a protested bill of ex- LENOX & Al. change.

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 ift 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-pay

ment. *

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 dollarst; the ba

Chase, Juftice.--A protest for non-acceptance is absolutely necessary in the case of a foreign bill.

. The fact does not so appear in the record.

Wilson lance of the account therefore, and not the rate of ex

change, must have been the guide of the jury. LENOX & AL.

3. The testimony of Ramsay was not to destroy the paper, but to explain the nature of the confideration ; to thew 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 indorfee and indorser, as between payee and drawer*; and if the bill was given for current money due in Virginia, the fum 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 payabic, 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 protested bill of exchange.” The holder, therefore, muft 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 fating 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 proteft 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 Wasb. 165, Skipwith, v. Baird. The court of appeals of Virginia in

Chicf flice.-The law has been so construed in Virginia.

ling.*

that cafe decided that the damages must be laid in ster

WILSON

LENOX & AL 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 faid should discharge the debt, is not the exchange but the balance of account.t

Simms cited 3 Dall. 365, Brown v. Barry, to fhew that a protest for non-acceptance was not necesary; 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. Wafh. 203. Stevens v. White. I

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.

*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.

+ Cbase, Juftice. 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.

Cbief Justice. If it is bad, the defendant cannot complain. It is for his benefit

Cbase, Justice. That may be the opinion of the chief justice ; but I have confidered 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 duc.

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

WILSON Simms, for defendants in error, was now permitted to

support the declaration. LENOX & AL.

ist. 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 fum capable of being ascertained, though not ascertained at the time of the action brought. Doug. 6. Walker v. Witter. It is not neceffary 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 wels fettled that in an action of debt, judgment may rendered for less than is demanded in the declaration. Doug. 6. Walker v. Witter. 1 H. Blackstone, 249, M.Quillin v. Cox.

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