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 fterling debt fhould 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 neceflary to aver a demand of payment from the drawee.

C. Lee. The act of jeofails in Virginia is construed to be the fame as that of England, although the words are fomewhat broader. 2. Wafb. 203. Stevens v. White.‡

Feb. 22d. At a fubfequent 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 protest which are uncertain are joined as part of the debt declared for.

Chief Juftice In that cafe the court spake of the damages which conftitute part of the debt in an action under the ftatute 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, Fuftice. If you have no law of Virginia authorising such a judgment, it is bad, becaufe 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 juftice; but I have confidered the queftion in a greater cafe 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 duc.

Chief Juftice. The decifions 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 eafily be reduced to a certainty.

Nothing can be more eafily afcertained and rendered certain than charges of protest 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 afcertained 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 protefted bill of exchange particularly defcribed in the declaration, is good, because the fum or amount of those charges is capable of being afcertained 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 intereft, reference must be had to the proteft, to find its date, from which time the intereft begins to accrue; a reference to the fame 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 reverfed on that account; because the judgment is not rendered for the charges of protest, but is rendered for .300 fterling, the principal of the bill. It is now well fettled that in an action of debt, judgment may be rendered for less than is demanded in the declaration. Doug. 6. Walker v. Witter. ↑ H. Blackstone, 249, M‹Quil

lin v. Cox.

v.

In the prefent cafe the demand is for the principal fum WILSON drawn for by the bill of exchange, with damages, interest and charges of proteft thereon. It appears by the record LENOX & AL. 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 due, the refidue having been fettled and paid. Shall the judgment then be reversed for not ftating the amount of the charges of proteft, which had been previously paid, and for which the judgment was not rendered?

No other action can be brought by Lenox and Mait, land against Wilfon for the charges of protest on the bill of exchange, ftated in the declaration; no judgment has been rendered for them in the prefent action. How then has he been injured, or how can he be injured by the omiffion to ftate the amount of the charges in the declaration?

In the declaration four diftinct things are demanded, viz. 1, the principal; 2, the damages on the protest; 3, the intereft; 4, the charges of protest.

I take it to be fettled law, that if a declaration be good in part, though bad as to another part, the plaintiff is entitled to judgment for fo much as is well alleged, efpecially if it be not of an entire demand.

An action of debt might be brought for the principal fum due on a bill of exchange, without including the damages, intereft and charges of proteft. If then an action of debt be brought for the principal, damages, interest and charges of proteft, and the damages, interest and charges of proteft, or either of them, fhould not be demanded with fufficient certainty, it would not be error to render judgment for that which was fufficiently alleged.

In this cafe the principal fum is demanded with fufficient certainty, and for the principal fum only is the judgment rendered. Cro. Jac. 104. Woody's cafe. 4 Bac. ab. 25, 26.

D 2

WILSON

V.

LENOX & AL.

A man fhall not reverse a judgment for error, if he cannot fhew that the error is to his disadvantage. 5 Co. 39. (b.) Tey's cafe. It appears by the record that judgment was not rendered for the charges of proteft, therefore the plaintiff in error has fuftained no damage or injury by reafon of not alleging in the declaration the amount of the charges of proteft.

3d. If the omiffion of the amount of the charges of proteft could in any stage of the proceedings be confidered as an error, it is cured by the verdict. By the act of affembly of Virginia, (rev. code, p. 118.) it is declared that after a verdict of twelve men, no judgment shall be ftayed or reverfed, for any mifpleading or infufficient pleading. The omiffion, if it is an error, must be one or the other. In Jacob's Law Dict. it is faid to be mifpleading if any thing be omitted that is effential to the action or defence.

The title to recover in the action is the protested bill of exchange; that is fet forth in the declaration. The title, therefore, is not wholly defective in itself, though it may be fet forth defectively in not stating the amount of the charges of proteft: fo that it comes within the rule in the cafe of Rushton v. Afpinall, and 1 Call, 98, Vafs v. Chichefter.

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

E. J. Lee, in reply.

The cafe of Walker v. Witter in Doug. 6, does not fay that the fum demanded may be uncertain, but only that you may recover a lefs fum than that demanded. The demand must be certainly expreffed, if it be poffible, at the time of bringing the action.

In the cafes of Scott's exr. v. Call, 1 Wash. 115, and Skipwith v. Baird, 2 Wafb. 165, the amount of the charges of proteft are particularly mentioned; in one they were 4/6, in the other 7/8.

1

Feb. 26. The Chief Justice delivered the opinion of WILSON

the court.

In this cafe there was an objection taken to the plaintiffs' declaration, which was in debt on a protested bill of exchange. The declaration claims £300 fterling, with damages, intereft and charges of proteft, on a protested bill of exchange, without ftating, in any part of it, the amount of thofe charges. The verdict is for the debt in the declaration mentioned, on which judgment is rendered, to be difcharged by a lefs fum.

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

The claufe of the act on which this fuit is instituted is in these words, "It fhall be lawful for any person or "perfons," &c. "to profecute an action of debt, for prin«cipal, damages, intereft, and charges of protest against the "drawers," &c. The charges of proteft conftitute an effential part of the debt, and the declaration would not purfue the act, if thofe charges fhould be omitted. This part therefore cannot be confidered as furpluffage. It is a component part of the debt for which the action is given. Being a neceffary 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 difregard it, if it was not a principle, deemed effential in the action of debt, that the declaration fhould state the demand with certainty.

The cafes cited by the counsel for the defendant in error, do not come up to this cafe. They relate to different debts; this to a fingle debt compofed of different parts.

Judgment reversed and arrested.

See the cafe of Rudder v. Price, 1 H. Bl. reports, 559.

v.

LENOX & AL.