ception may be divided into three points; first, as to the FENWICK opinion prayed; fecond, as to the conduct of the court in not giving an opinion as to part of the prayer, and thirdly, as to the opinion which the court did give.

ance.

The prayer is to instruct the jury that it was necessary to prove notice of non-payment as well as of non-acceptThe plaintiffs, if any body, had a right to complain of the opinion of the court, in as much as it did not declare notice of non-payment to be unneceffary. But they have waved their right to except. The opinion given is what is excepted to, and that was given only on the count for money had and received.

The bill and indorsement are ftated to have been made in France. The law of France then is the Lex Loci, by which this cause is to be decided, and by which the liability of the indorfer is to be ascertained. By that law no notice is neceffary to the drawer or indorfer, if there are no effects of the drawer, or of the indorfer, in the hands of the drawee. Evans 60, 62.

And what is meant by funds, is not fecurities lodged for raifing money, upon which the money has not been raised; but is money in account. 2 Esp. rep. 515. Evans

62.

As to the ground of fraud, the court left it to the jury to decide whether the defendant knew that the drawer had no funds in the hands of the drawees. If he did know it, is it not as much a fraud as in the cafe of a drawer drawing without funds? It is in fact an accumulated fraud. If, according to juftice Afhhurst, one is a fraud, the other must be a greater fraud.

As to due diligence, the exception is not that no notice was given, but that it was not given in due time. Nɔ doubt but that by the laws in England, due notice is neceffary as a general rule. But to this there are exceptioris.

There is an American law on this fubject, which is, that in some cases the jury, and not the court, is to decide what is laches. When a particular cafe arifes, and a variety of circumstances are given in evidence in ex

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v.

FENWICK cufe for not giving notice fooner, there, by the American practice, the jury are to decide. This appears by the deSEARS'S cifions in Pennsylvania down to the year 1795. Dallas, ADMINS. Robertson v. Vogle. 2 Dal. 158. Bank of N. America v. M'Knight. 2 Dal. 192. 233. 1 Call's rep. 123. M‹Wil.

liams v. Smith.

In this country the line is more diftinctly drawn between court and jury than it is in England. By the 9th article of the amendments to the conftitution, a matter once tried by a jury fhall not be otherwife re-examined than by a jury according to the rules of the common law. If the court now make a rule as to what is due diligence in this case, they will without a jury try a fact which has once been decided by the jury in the court

below.

If the question involve matter of fact with the law, the jury must decide the facts; and it is no error in the court to fuffer them to decide the law also at the fame time.

When a rule can be laid down, then the court is to state the rule. But where that can not be done then it may be left to the jury. This is all that lord Mansfield fays in in the cafe of Tindall v. Brown.

5th. The fifth is an exception to the opinion which the court gave, and not to the conduct of the court in not giving an opinion. The opinion given was against the plaintiffs below, and they alone had a right to except to it.

There was a decifion of chief justice Jay, given upon the circuit, Gimilar to that given by judge Wilfon, that the jury and not the court were to judge of the validity of excufes for giving notice.

The judgment ought not to be reverfed because the court below did give an improper instruction to the jury.

It is hoped that the court will decide the question of notice as it is of great importance that a general rule should be established and understood.

Mafon in reply.

ift. As to the letters teftamentary.

Antecedent to the revolution the teftamentary affairs in the state of Maryland were under the fuperintendance of a commiffary general, who had a deputy in each county. If there were bona notabilia in feveral counties, the administration was granted by the commiffary general. But if the goods of the inteftate were all in one county it might be granted by the deputy commiffary of that county. By the new system of teftamentary laws, 1798 ch. 101. § 3. the affets in Maryland connot be administered but by letters of administration granted in Maryland.

In the district of Columbia, if a man now die inteftate, the administration must be granted in the district.

The laws of Maryland do not operate in the district as laws of Maryland, but as laws of the United States. Their obligatory force is not derived from the state of Maryland, but from the United States.

Does the fact that the letters were granted before the feparation of the district from Maryland, make any dif ference? If any right had vested, what was it? Was it a right to fue Fenwick who was then in France, and who came to the district after its separation.

But no right at all had vested in the plaintiffs. If the separation had not taken place, and Fenwick had come, they might have fued; but as it had taken place before he came, they can not.

By the laws of this part of the district, the adminiftrator must give bond duly to administer the estate, and to pay the debts pari paffu. He must advertise in a certain manner, &c. The only evil refulting from this conftruction of the law is, that plaintiffs muft take out letters of. administration here.

2d. As to the fecond bill of exceptions. The question is, whether Hanson was a notary before he took the oath

FENWICK prefcribed by the law of 1779. The conftitution fays, V. that before he enters upon the execution of the duties of SEARS'S his office he fhall take the oath of allegiance. The law ADMINRS. of 1779 fays, he fhall take the other oath therein pre

scribed, and if he acts without having taken it he fhall be fubject to a penalty. The conftitution and the law are to be coupled together, and then the taking the oath prescribed by the act of 1779, becomes a pre-requifite to his capacity to act as notary.

3d. The third bill of exceptions is that the proteft for non-payment was not a proper one to go to the jury. It was not in itself evidence. It is no answer to say that no proteft for non-payment was neceffary; the counfel below did not chufe to risk their caufe without it. If the opinion of the court is erroneous, and if the protest was improperly admitted to go to the jury, the judgment must be reversed. It may be a good reason why the court should refuse to let it go to the jury, that it was not neceffary. It is therefore unimportant to decide whether it was neceffary or not. But that it was neceffary appears in Kyd, 120, 137, 138, (77, 87.)

As to the cafe of the notary who refufed fix pence for noting the bill, 4 Term rep. 173. It is the opinion of lord Kenyon only, that the acceptor had till the laft moment of the last day of grace to pay the bill; and that was the cafe of an inland bill, and decided exprefsly upon tae ftatute of William. But Buller ftates the law to be otherwise on a foreign bill, and that, by the custom, the bill is payable at any reasonable time of the last day of grace when demanded. And the law is fo ftated in Kyd, 121, (78.) The practice in Alexandria may be as stated, but in Baltimore they proteft on the 3d day, in banking hours. There is a difference between the law refpecting inland and foreign bills; and this difference arifes from the ftatute of William, which gives the proteft on inland bills and requires it to be made after the expiration of the three days, Kyd, 151, (91.) It is upon this ftatute, which is in force in Maryland, that the banks have adopted the practice of protesting promiffory notes on the day after the expiration of the three days of grace. A promiffory note as foon as it is indorfed becomes an inland bill of exchange.

V.

4th. It is objected to the fourth bill of exceptions that FENWICK it does not contain the whole evidence. But if a bill of exceptions states evidence, it has been decided by this court that it is prefumed to ftate the whole evidence. 3 Dal. 19, 38, Bingham v. Cabott.

It is faid that the exception is not to the refusal of the prayer, but to the opinion which was given. If the opinion prayed was correct, and the court refufed to give it, or, by being divided, failed to give the inftruction to the jury as prayed, it is error. The court will difregard the inaccurate form of words, and come at the fubftance of the exception.

As to the want of funds in the hands of the drawees, the court are to prefume that the whole evidence is stated in the exception. We deny the principle that fuch funds can be only money in account. There was reason for Fenwick to believe that the drawees had funds, and he ought therefore certainly to have had notice. There is not the least ground for a suspicion of fraud in Fenwick.

As to the count for money had and received, it is a common law count; but upon that count the plaintiffs can not recover by means of evidence resulting from that bill, unless they have done every thing to entitle them to recover upon the bill itself, by using due diligence, giving due notice, &c.

It is faid that the indorfement was made in France, and therefore the law of France is to decide the refponfibility of the indorfer; and that by that law notice is not neceffary to the indorfer, if neither the indorfer nor the drawer has funds in the hands of the drawee; and Evans is cited as the authority. It is doubted whether Evans is correct in that pofition; but whether correct or not, it does not apply, because the money was to be paid here, and the contract is perfonal. If Fenwick had been fued in France it might have applied; but being fued here, the law of this country muft decide his case.

As to the questions what is due notice, and whether it be a matter of fact or of law, the decifions cited from Dallas are no authorities in this cafe. They all turned

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