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WILSON

v.

LENOX & AL.

without a release from Wilson. The court were right in rejecting him both on the grounds of interest and of public policy.

If judgment fhould be rendered against Wilson, Ramfay as drawer would be clearly liable to refund Wilson the cofts of fuit; and a relief from that liability was a clear intereft.

A party to a negociable paper ought not to be permitted to difcredit it.

An underwriter can not be a witness for another underwriter in an action upon the fame policy.

The cafe in Doug. 247, does not affect the present. The note in 249, is of an ancient cafe; and there Walpole's own book was produced with a memorandum that Pulteney was discharged from his liability as acceptor.

All the cafes cited are where a party to the bill has been admitted as a witness either ex neceffitate, 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 ftamp duty, if the witnefs had been excluded; and to prevent that evil he was admitted.

In the cafes of usury the maker of the note or other fecurity is not admitted unless the debt has been paid. And in the cafe of forgery, it is a public criminal profecution in which the injured party is always admitted.

The fault of the declaration, if it does exift, is cured by the verdict under the statute of jeofails of Virginia, which declares, that no judgment after verdict fshall be ftayed or reversed, for mifpleading, infufficient pleading, or for omitting the averment of any matter, without proving which, the jury ought not to have given fuch verdict. Rev. Code, 118. But the averment was not neceffary. The declaration contains an allegation that the bill was proteited in due form, according to the cuftom 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 affembly, and not on the custom of merchants; and by the act it

WILSON

v.

is only neceffary 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 fo. The declaration alleges that the bill was prefented for acceptance and refufed; and afterwards, on the 1ft 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 fued for. There are fome unintelligible cafes in the court of appeals of Virginia; but they have never decided the prefent point. In one cafe the court faid that if the fuit 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 fterling money.

Simms, on a subsequent day, stated that a demand of payment was not neceffary where the bill was not accepted, and cited Lilly's entries, 44 and 45. The declaration ftates the non-acceptance, and the proteft for non-pay

ment.*

He also mentioned a cafe 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 affumed a rate of exchange, and charged the amount in account against the drawers, is conclufive evidence of their intention to extinguish the fterling debt.

2. The jury have awarded that the fterling debt. should be discharged by the payment of 800 dollars; the ba

Chafe, Juftice-A proteft for non-acceptance is abfolutely necessary in the cafe of a foreign bill.

The fact does not so appear in the record,

WILSON lance of the account therefore, and not the rate of exchange, must have been the guide of the jury.

v.

LENOX & AL.

3. The teftimony of Ramfay was not to destroy the paper, but to explain the nature of the confideration; to fhew that it was given for current money of Virginia, fo as to bring it within the operation of the 4th section of the act of affembly refpecting bills of exchange given for current money due in Virginia. This act applies as well between indorsee and indorfer, 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 proteft for non-acceptance, and a demand of payment from the drawee, at the time the bill became payabic, were requifite 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 fuch perfons as have "a right to demand any "fum of money upon a protested bill of exchange." The holder, therefore, muft fhew a right to demand the money, independent of the provifions of the ftatute; and to afcertain whether he has such a right, we must resort to the custom of merchants, and fee whether he has complied with all the requifites of that custom.

5. This is an action of debt; and the demand is uncertain. The debt demanded is the principal, damages, intereft and charges of proteft, without ftating the amount of the charges of proteft. The principal is certain, because it is ftated to be £.300; and the damages and intereft are certain, becaufe the law has afcertained 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 affembly has authorised sterling debts to be fued for and recovered as fuch. Sterling money is not to be confidered as foreign money, 2 Wafb. 165, Skipwith, v. Baird. The court of appeals of Virginia in

Chief flice. The law has been so construed in Virginia.

that cafe decided that the damages must be laid in fterling.*

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

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

C. Lee. The act be the fame as that fomewhat broader.

of jeofails in Virginia is construed to
of England, although the words are
2. Wafb. 203. Stevens v. White.‡

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

•Chief Justice In that cafe the court spake of the damages which conftitute 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 fuch decifion refpecting the latter.

↑ Chafe, 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. Chief Juftice. If it is bad, the defendant cannot complain. It is for his

benefit

Chafe, Juftice. That may be the opinion of the chief justice; but I have confidered the question in a greater case than this I am well fatisfied (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 fum really due.

‡ Chief Justice. The decisions have been so, although the statute of Virginia is broader than the English ftatute. 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.

WILSON

v.

LENOX & AL

WILSON

v.

LENOX & AL.

Simms, for defendants in error, was now permitted to fupport the declaration.

Ift. The declaration is fufficiently certain. An action of debt will lie for what may easily be reduced to a certainty.

Nothing can be more eafily afcertained and rendered certain than charges of proteft on a protested bill of exchange. They always appear upon the proteft; and the indorsement on the proteft is always confidered as evidence of their amount. No other evidence is ever required.

Debt may be brought for a fum capable of being afcertained, 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; fame cafe and page. 2 W. Bl. Rep. 1221, Aylett v. Love. If fo, then a demand of the charges of protest on a protested bill of exchange particularly described in the declaration, is good, because the fum 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 ftated in the declaration.

To afcertain the amount of intereft, reference must be had to the proteft, to find its date, from which time the intereft begins to accrue; a reference to the same protest will afcertain the amount of charges.

2d. But if the charges of proteft are not demanded with fufficient certainty, yet the judgment ought not to be reversed on that account; because the judgment is not rendered for the charges of proteft, but is rendered for .300 sterling, the principal of the bill. It is now well fettled that in an action of debt, judgment may be rendered for lefs than is demanded in the declaration. Doug. 6. Walker v. Witter. 1 H. Blackstone, 249, M'Quillin v. Cox.

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