Brown Plaintiff in Error, versus Barry

Brown Plaintiff in Error, versus Barry. ERROR from the.Circuit Court for the Diñiitft of Virginia. An a£tion of debt had been inftituted in the Circuit Court by James Barry, a citizen of Maryland, againft James Brown, a citizen of Virginia; .in which the declaration fetb forth, that the Plaintiff by his attorney^ “ complains of James Brown, &c. of a plea that he render to him the fum of ¿".770. fterling money .of Great Britain, with intereft thereon at the rate of 10 per centper annum,, from the nth of February 1793, which to him he owes, and from him „unjuftly detains: For that whereas the faid Defendant, on the nth of February 1793, ex Virginia afore faid, according to the cuftomr of merchants, did make his fill bill of exchange'to. the court . now here ftiewn, bearing date the faid 11th of February 1793, figried with his name, by his proper hand fubicribed,' and dire£ted to Me firs.- Donald csf Burton, whereby he, requefted the faid Donald & Burton at 60 days fight of that his.firftof exchange (his fecond and third not paid) to pay to the order of Mr. Sector Kennedy, ¿JJO. fterling, for value in current’ money here received, (that is to fav at Virginia aforefai,'.) and to. place the fame to the account of him the laid James Broivn.” The declaration then proceeds to let forth, in the uftnil form, fucceffive indorfements by H. Kennedy to J'fiph Hadfield, by Jofepb Hadfield to Richard Mailman IF Co. and by Richard Mailman IF Co. (on the 26th of June 1793) to James Barry, the prefent Plaintiff; and a proteft for non-payment on the 2lit of June 1793. After averring that none of the bilis of the fet had been paid, it concludes, “ whereby and by force of the a£l of the General Affembly of the Commonwealth of Virginia, in that cafe made and provided, a£iion accrued to the faid Plaintiff, tx> demand and have of the faid Defendant, the afore-faid fum, &c. &c.” To this declaration there was^a plea of nil debit, 'iftue was thereupon joined, and, after a trial, the jury found a fpecial verdict in the following words:—“ We of the jury find, that “ the consideration given for the bill of exchange in the.decla- “ ration mentioned, Was the undertaking of Andrew Clew &" “ Co. a party interefled in receiving the fame, to deliver to “ James Broivn, the drawer'thereof, other bills of exchange, “ in fterling money to the fame amount: If the,court (hall be ⅛ of opinion that the confederation. above mentioned, did not “ come vfichin the operation of the 4th feftion of the of ' “ Afiembly of the 28. Geo. 2. c. 2. entitled c an act to amend “ ah act entitled, an a£t declaring the law .concerning execu- “ tions, and for the relief of infolvent debtors, and for other ■ “ purpofes therein mentioned,’ then we find for the Plaintiff, “■'4,404 '42-100 dollars damages j—-if otherwife, we find for .“ the Plaintiff 3,303 82-xoo dollars damages.” To the fpe-cial verdidt, this memorandum, was added : “ And it is agreed “ by the parties, that if in the opinion of the court, the Plain- “ tiff could not legally give parol teilimeny t,o prove that the “bill in the-.declaration mentioned, was in foS, drawn for “ other confideration tiian current money, the verdict {hall be “ changed from- the greater, to the lefs fum' found in the faid “ verdicl.” . . The cafe was firfr argued in the Circuit CourJ, on a motion made by the Defendant to arreft the judgment, for the foilow- • ing reafons:—“ uc, Becaufe the declaration aforefiid demands “ foreign money, without feting the value thereof in the citr- “• rent money of .the United States of .America, or of the Cost, “ monwealth of Virginia, ad, Becaufe the faid declaration “ does not charge that the bill of exchange therein mentioned “ was protefed for non-acceptance; neither doth it charge, “ that the (aid bill was, prefented to the perfons on whom it' “ was drawn for acceptance,'or that they ever were required to “ accept-ii. 3d, Becaufe the faid p.Sion is founded on an a¿t • “ of AiTembly which was not in force, at the' time when the “ Loll cf exch ige mentioned in the declaration was drawn.” But thefe objedciens Slaving been over-ruled, the law arifing On the fpecial verdict was argued, and adjudged to be in favour of the Plaintiff; whereupon judgment was rendered. for the’ fum of 4404 42-100 dollars, with1 intcreil at 5 per cent from the day of rendering the judgment, and colts. From the judgment of the Circuit Court,’ the prefent writ of error v/as brought, a variety of exceptions were taken to the record, and after argument by Lee, Attorney • General, for the Plaintiff in error, and by E. Tilgbman, for the Defendant, the opinion of the court was delivered by the ghie-f justice, in the following terms. [MAJORITY — E^s worth, Chief Juftice.] E^s worth, Chief Juftice. Jn delivering ths opinior/Of the court, I ihall briefly confider the exceptions to the record* in the order in which they have been propofe.d at the' bar.. I. The fir/i exception Rates, that the aft of the Legiflature of Virginia, pafled in the year, 1748, on which ’the • action is founded, as an action of debt, was not in force, when the bill of exchange was drawn, to wit, on the nth af Feh wry 1793. • The queftion is, whether two. fubfequent acts of the Legifla-ture of that State,, pafled at a feflion in 1792 (namely, one of • November, declaring the repeal of the act of 1748, and another of December, declaring a fufpenfion of that repeal till OSiober 1793J did in Repeal, and leave repealed, the faid adt of 1748 ? This, it is contended, nfuft have been their effect, . as afeertained and limited by two other flatutes, namely,, one of 1789, declaring, that the repeal of a repealing adl .ihall not revive the adt fir ft repealed; the other of 1783, declaring, that flatutes ihould take effedt from the day, on which they in. fadt pafled, unlefs another day. was. named. It muft be taken, ■ however, that the a.dlof 1748, remained in force; and that,. until after the bill was drawn, for the following reafons. x.,,. The adt, fufpending the repealing adt of November 1792, is' not within the adt of 1789, which declares, that the repeal of a repealing act ihall not revive the adt firil repeáled. The fuf-penfion of an .adl: for a limited time,, is not a repeal of it: And the, adt of 1789, being in derogation of the common law, is.to be taken ftridtly. 2.The repealing adt, and the act fufpending . it, adts of the lame feflion, are, according to the Britifh con-flruction of flatutes, and the rule, which appears to have prevailed in Virginia, parts of the fame act, and.have effect from the fame day : and, taken together as'parts of .the fame, act, they only amount toa provision, that a repeal of. jhe act of 17.48, ihould take place at a day then future. The act of 1785, declaring the commencement of acts to he from.the' day, on . which they in fact país, does not apply here; for, by the third-fection of the act of 1789, it is provided, that when a qneflicii ' fliall arife, whether, a law pafled during any feflion .changes, or repeals, a former lav/ during the fame fefEon, which is the . prefent cafe, the fame coflruction ihall’ be made, as if the act ¿f \ T785, had never been pafled, that ip, both acts being of the fame . ieiiioa, ihall have the fame commencement, on the flrft day of the feifion. 3. The manifcfl intent of the fufpending act was, that the act, repealed by the repealing .act, ihould continue in force till a day then future, the "firil. of October, 1793. it could ■have had-no other intent: -And the intention of the Legiflature, when difeovered, rauft prevail, any rule of conftruction decia- . red In previous acts to'the cqntcary^ctwkhflanding. Thus, *^6 aCt clearly was ’n ^orce when the hill was drawn. . ' ' .11. The fccotid exception Rates, that there; is no averment' of a-proteft for non-acceptance of the bills. This exception is invalid on two grounds, i. Ic does not appear, that ih * bill wcs not. accepted, fo that there could have been: fuch proteft ; and, if accepted, it would have been immaterial for the Plaintiff to ihew, that it was fo, as his right' of action could in no mcafure depend on that fact. The filence of the.declaration as to the quaftian, whether the bill was accepted or not, doss not vitiate-it; the action being on a pro-teft for non-payment. %. A's to bills drawn in the United Statei ■and payable ih Europe, of which this-is one; the 'cuftom of merchants in this country does not ordinarily require, to recover on a proteft for non-payment, that a proteft for non-acceptance ihould be. produced, though the bills were no.taccepted. I fay the cuftom of merchants in this country; for the cuftom of merchants fomewhat varies in different countries, in order to accommodate itf lf to particular courfes of bufinefs, or other local circumftances. III. The third exception ftates, that the judgment is for too large a furn, the1 bill having been taken for fterling, when, by the act of-1775, it ought fo have been taken for current money of Virginia. That act requires, that if the confideration of a bill he a pre-exifting currency debitor be current money paid at the time of the draft, the bill fliall exprefs the amount of the debt! or currency paid, which was the real confideration. . And that on fajiur.e fo to do, the bill, though it may be expreff-ed for fterling, as in this cafe,- (hail- be taken to be for current money. The^ill is thus expreffed, wFor value received in “ current money;” but it docs not: fay how much. The jury, however, have; by their fpecial verdict afeertained, that the real confideration of the bi.ll was an engagement to draw other fterling bills. Now it-is clear, that the confideration in fact, though variant from the face of á bill, is regarded by the act, and muft be fought for,- to-gi ve the act effect. Upon inquiry the jury have found the "confideration to be fuch as to'fake the cafe out of the ftatute. In this bill theft, the words added to value" received, viz. .“in current money;” were immaterial and without effect: And, therefore, the words in the deqlara- ■ tion, as deferiptive of the bills, might be difregarded by the jury and the court. ■IV1 Thefourth exception ftates, that the action is for foreign money, and its value is notaverréd. The-verdict cures . this. The jui;.y have found the value, -their verdict being in ■ dollars.- The v'álue of fterling money, here fued for, ha^ been long afeo tained-in Virginia by ftatute, and was certain enough. V. The fifth exception Rates, that the declaration is jn the debet, as well as the detinet, though for foreign money. The reafon of the rule, that debet. for foreign money is ill, is the uncertainty of its value; and, therefore, both the an-fwers given to the fourth, apply to this prefent, exception. Let the judgment of the Cireuk'Courtbe affirmed.