WILSON v. LENOX AND MAITLAND

WILSON v. LENOX AND MAITLAND. A declaration in debt, under the law of Virginia, upon a protested bill of exchange for the principal, interest, damages and cost of protest, must aver the amount of those costs of protest. Quere, whether if the holder of a bill of exchange, after due notice to the indorser of the non-payment by the drawee, charge the bill in account current against the drawer, and upon the whole of that account the balance due is less than the amount of the bill, the indorser is thereby discharged? Whether the indorser is discharged by the holder's receipt of part from the drawer, after due notice given to the indorser? Whether it be necessary to aver a protest for non-acceptance in an action on protest for nonpayment? Whether the drawer be a competent witness for the indorser in an action against the latter? Error to the circuit court of the district of Columbia sitting at Alexandria, on a judgment obtained by the present defendants in error, against the plaintiff in error, in an action of debt, as indorser of a bill of exchange for L.300 sterling, drawn on the 2d January, 1799, at Alexandria, by A. and W. Ramsay, on Findley, Bannatyne and co. London, at ninety days fight, payable to Wilson, the plaintiff in error, and by him indorsed to the defendants. This bill was presented for acceptance on the 28th of February, 1799, and refused, and on the 1st of June, 1799, protested for non-payment. The declaration was "of a plea that he render unto them "the sum of L.300 sterling, with damages, interest and "charges of protest, on a protested bill of exchange, which "to them he owes, and from them unjustly detains," and goes on to state the drawing of the bill of exchange "ac- " cording to the custom of merchants," the indorsement by Wilson to Lenox and Maitland; the refusal of Findley, Bannatyne and co. to accept the bill on its being presented for acceptance (but does not state a protest for nonacceptance, nor notice of the non-acceptance given to Wilson) and the protest, "in due form, according to the custom "of merchants," for non-payment; "of which the said " defendant afterwards, to wit, on the day of " in the year aforesaid, at the town and county "aforesaid, had notice, whereby, and by force of the "act of assembly of the commonwealth of Virginia, in " such case made and provided, action accrued to the "said plaintiffs, to demand and have of the said defend- "ant the said sum of £.300 sterling, with damages, in- "terest and charges of protest; nevertheless, the said de- "fendant, although thereto often required, hath not paid "unto the said plaintiffs the said sum of three hundred "pounds sterling, with damages, interest and charges of "protest, but the same to pay hath hitherto refused, and "still doth refuse, to the damage of the plaintiffs, 750 "dollars, and thereupon they bring suit, &c" The The act of assembly of Virginia, which gives the action of debt on a protested bill of exchange (revised code, p. 121) provides, "that where any bill of exchange is or "shall be drawn for the payment of any sum of money, " in which the value is or shall be expressed to be re- "ceived, and such bill is or shall be protested for non-ac- "ceptance or non-payment, the drawer, or indorser, "shall be subject to the payment of fifteen per centum "damages thereon, and the bill shall carry an interest of "five per centum per annum, from the date of the pro- "test, until the money, therein drawn for, shall be fully "satisfied and paid." "§ 3. It shall be lawful for any person or persons, having a right to demand any sum of money upon a "protested bill of exchange, to commence and prose " cute an action of debt, for principal, damages, interest "and charges of protest, against the drawers or indorsers "jointly, or against either of them separately; and judg- "ment shall and may be given for such principal, da- "mages and charges, and interest upon such principal, "after the rate aforesaid, to the time of such judgment, "and for the interest upon the said principal money re"covered, after the rate of five per centum per annum, "until the same shall be fully satisfied." “§. 4. In all bills of exchange given for any debt due “ in current money of this commonwealth, or for cur- “ rent money advanced and paid for such bills, the sum “ in current money that was paid or allowed for the same, “ shall be mentioned and expressed in such bill, and in “ default thereof, in case such bill shall be protested, and “ a suit brought for the recovery of the money due there- “ by, the sum of money expressed in such bill, shall be “ held and taken as current money, and judgment shall “ be entered accordingly.” “§. 6. In any action which hath been, or shall be “ commenced, and is or shall be depending for the reco- “ very of any sterling money, in any court of record “ within this commonwealth, wherein the plaintiff or “ plaintiffs shall recover, such court shall have power, and “ are hereby directed, by rule to be entered at the foot “ of their judgment in such action, to order such judg- “ ment to be levied or discharged in current money, at “ such a difference of exchange as they shall think just.” The cause, in the court below, was tried upon the plea of nil debet, and the jury found a verdict for the debt in the declaration mentioned, and one cent damages; it was therefore considered by the court, "that the said “ plaintiffs recover against the said defendant their debt “ aforesaid, amounting to three hundred pounds sterling, and “ their damages aforesaid, by the jurors aforesaid, in “ form aforesaid assessed, and also their costs, by them “ about their suit in this behalf expended; and the said “ defendant in mercy, &c. But his judgment (damages “ and costs excepted) is to be discharged by the payment “ of eight hundred and fifty-five dollars, twenty-three “ cents.” The record which came up contains fix bills of exceptions. 1. First. That the defendant Wilson produced in evidence to the jury the accounts of the plaintiffs Lenox and Maitland, against A. and W. Ramsay, the drawers of the bill, whereby the latter were charged as debtors to Lenox and Maitland, on the 22d of August, 1799, for the amount of the bill and damages in dollars and cents, among many other debts and credits, upon which whole accounts current, a balance of 1095 dollars only appeared to be due from A. and W. Ramsay to Lenox and Maitland; and thereupon prayed the opinion of the court whether by making the said bill an item of account as stated in the aforesaid accounts against the said A. and W. Ramsay, the said Wilson was not thereby, as indorser, discharged; and the court were of opinion that he was not. 2. Second. That the defendant offered to prove that the plaintiffs had received part of the money from the drawers of the bill since the defendant Wilson had notice of the protest, but the court were of opinion that the same, if proved, would not discharge Wilson as indorser. 3. Third. That the defendant offered to prove by the bill and protest, that after the protest of the said bill at the request of Roberts, Curtis and co. the then holders of the bill, it was paid by Dorin, Strange and co. to Roberts, Curtis and co. for the honor of Lenox and Maitland, the plaintiffs, and thereupon prayed the opinion of the court, whether, as the bill had been so paid, this action would lie against the defendant as indorser, and the court gave it as their opinion that it would lie. 4. Fourth. That the defendant prayed the opinion of the court, whether it was not incumbent on the plaintiffs to prove the value of current money received here for the bill upon which this action is brought, which bill is in these words: "Exchange for L.300 sterling, Alexandria, 2d " January, 1799. Ninety days after light of this our first " of exchange, (second, third and fourth of the same te- " nor and date unpaid) pay to the order of William Wil- " son, esq. the sum of three hundred pounds sterling, for " value here received, and place it to account as advised " by Andrew and William Ramsay." "To Meffrs. Find- " ley, Bannatyne and co. London." And the court gave it as their opinion, that it is not necessary for the plaintiffs to prove the value given here in current money for the said bill. 5. Fifth. That the defendant offered to prove by the account thereunto annexed, that the bill, upon which this suit was brought, was given in the commonwealth of Virginia, either for dollars and cents due in the said commonwealth, from A. and W. Ramsay to the plaintiffs, or for dollars and cents advanced by the plaintiffs, or some other persons, for the said A. and W. Ramsay, in the state of New-York, and prayed the opinion of the court, whether, if the said facts were proved to the jury, the said bill ought not to be settled according to its nominal amount as current money of Virginia. Whereupon, the court instructed the jury, that if they were of opinion from the evidence offered, that the bill of exchange was given for any debt due from A. and W. Ramsay, in current money of the commonwealth of Virginia, or for current money advanced and paid for the said bill, and the sum in current money, that was paid or allowed for the same, is not expressed in the bill, the sum expressed in the bill shall be held and taken as current money of Virginia; and if, from the evidence offered, they should not be of that opinion, that the sum expressed in the bill shall be taken and held, as so expressed, to wit, in sterling money. 6. Sixth. That the defendant offered to examine William Ramsay, one of the drawers of the bill, to which the counsel for the plaintiffs objected, and the court gave it as their opinion, that the said W. Ramsay was an incompetent witness in the cause. The second, third, fourth and fifth exceptions seem to have been abandoned in the argument in this court. C. Lee, E. J. Lee, and Swann for plaintiff in error. Simms for defendants. The errors infilled on by the counsel for the plaintiff in error were, 1st. The opinion of the court below, as stated in the first bill of exceptions. 2d. The rejection of W. Ramsay as a witness. 3d. That there was no protect for non-acceptance of the bill. 4th. That the declaration does not state any demand of payment of the bill, made on the drawees. 5th. The damages are not laid in the same currency as the debt. 6th. The jury have awarded that the sterling debt should be discharged by the payment of 855 dollars and 23 cents. 7th. The debt demanded is not certain. E. J. Lee, for the plaintiff in error. 1st. The court below erred in not instructing the jury that the defendants in error, by charging the bill in account against the drawers, in the manner stated in the accounts, had discharged the indorser. The court ought at least to have lest it to the jury to decide whether the circumstances did not amount to a discharge of Wilson. By the account of Lenox and Maitland against the drawers of the bill, it appears that after charging the amount of the bill, and damages, interest and charges of protest, and turning the amount into dollars and cents at such rate of exchange as the defendants in error pleased, there was only a balance of about 1000 dollars due to them from the drawers; it is not reasonable that they should recover more than is due to them against an innocent indorser who must look to insolvent drawers for his indemnification. The defendants have in fact given credit to the drawers for the amount due on the bill, and have agreed to liquidate it in account. If the holder of a bill receives part of the money from the acceptor without giving notice to the drawer, the latter is discharged. Buller N. p. 275. So if he receives part from the drawer, he discharges the indorser. Here no notice was given to Wilson; or if there was, it is waived by the conduct of Lenox and Maitland. In the cases of Dingwall v. Dunster, Doug. 247 (235.) it is true that judge Buller says, that nothing but an express agreement can discharge an acceptor, but the court are careful to distinguish between the case of an acceptor, and that of a drawer or indorser. The implication is, that there are many circumstances which will discharge the latter, without an express agreement. The court ought, at least, to have instructed the jury that they might infer a discharge from the circumstances of this case. 2dly. W. Ramsay, the drawer of the bill, ought to have been admitted as a witness. He had no interest which would render him incompetent. The verdict in this case could not have been given in evidence either for or against the witness; and whether Lenox and Maitland recovered against Wilson, or not, he was still liable to an action as drawer-to Lenox and Maitland if they failed against Wilson-or to Wilson, if they succeeded. In the case of Smith qui tam v. Prager, 7 Term, rep. 62. the rule is clearly laid down to be, that “ no objection “ could be made to the competency of a witness upon the ground “ of interest, unless he were directly interested in the event of “ the suit, or could avail himself of the verdict in the cause, “ so as to give it in evidence on any suture occasion in support of “ his own interest.” The objection only goes to his credit, unless the judgment can be given in evidence for him in any other suit. The same principle is confirmed in the case of Jordaine v. Lashbrooke, 7 Term, rep. 601, where, in a suit between the indorsee and the acceptor of a bill, the payee was called and allowed as a witness to defeat the action, by proving that the bill, although dated at Hamburgh, was in fact drawn in London, and so void for want of a stamp. It may be observed in that case, that it was admitted that there could be no objection on the ground of interest, but the objection relied on was, that the witness ought not to be permitted, from motives of policy as it respected mercantile credit, to impeach a negociable instrument to which he had assisted in giving currency by his indorsement; and even that objection was over-ruled. In the case of Carter v. Pearce, 1 Term, rep. 163, the court said that, “ the bare possibility of an ac- “ tion being brought against a witness, is no objection to “ his competency;” and that “ in order to shew a witness “ interested, it is necessary to prove that he must derive a “ certain benefit from the determination of the cause one “ way or the other.” 3dly. Here was no protest for non-acceptance, nor does the declaration state a demand of payment from the drawees, nor notice of the non-payment, or non-acceptance given to Wilson. The protest for non-payment is not evidence that the money was demanded at the time the bill became payable. 4 Bac. ab. 735, Gwyllim’s edition. In the case of Rushton v. Aspinall, Doug. 679. (653) it is expressly decided that the plaintiff must allege in his declaration a demand, and refusal of the acceptor on the day when the note was payable, and notice thereof to the indorser before he can be made liable; and that the want of such averments in the declaration is not cured by a verdict. And Lord Mansfield there lays down the rule to be, “ that where the plaintiff has stated his title “ or ground of action defectively or inaccurately (because, “ to entitle him to recover, all circumstances necessary in, “ form and substance, to complete the title so imperfectly “ stated, must be proved at the trial) it is a fair presump- “ tion, after a vereict, that they were proved , but that “ where the plaintiff totally omits to state his title or “ cause of action, it need not be proved at the trial, and “ therefore there is no room for presumption.” The demand and refusal of the drawee to pay is the very substance of the plaintiffs’ title to recover; and therefore the not setting it forth in the declaration is a total omission of his cause of action. 4th. The damages are not laid in the same currency with the bills and the promise. To support this objection he relied on the decision of the court of appeals of Virginia, in the case of Scott's executors v. Call, 1 Wash. Rep. 115, and Skipwith v. Baird, 2 Wash. 165. C. Lee, on the same side. 1st. The question to the court below was whether the plaintiffs by making the bills an item of the accounts, as therein stated, had not discharged the indorser Wilson. The accounts of Lenox and Maitland against the drawers of the bill, begin in 1798 and end in 1800. The bills are entered in account, on the 22d of August 1799, and charged with interest and damages; and the amount carried out from sterling into dollars and cents, at such rate of exchange as the defendants in error pleased. They have therefore changed the nature of the demand, and given credit to the drawers for a certain sum in the currency of the United States. They have, as far as they were able, manifested their intention to give credit to A. and W. Ramsay. These circumstances being subsequent to the notice to Wilson are a discharge in law, and are equivalent to an express discharge. If I am right the court ought to have instructed the jury that these facts discharged all persons but A. and W. Ramsay. Perhaps the court might have left it to the jury to infer an intention to discharge the indorser; but the court ought not to have instructed the jury that Wilson was not thereby discharged as indorser. 2d. The objection to the competency of W. Ramsay as a witness was not good. If he had any interest, it was in favor of the plaintiffs. The objection was made generally and goes to his proving any fail whatever. A witness may be competent to prove some facts and not others. Pie was competent to prove, not only that the bill was charged in account, but that it was given up, and came surreptitiously to the possession of the plaintiff’s, if the fact had been so. I state this only to shew that he ought not to have been wholly excluded. On a criminal prosecution for forgery, the party, whose name is forged, may be a witness, 1 Dall. 110. The doctrine that a man shall not be permitted to disprove a paper to which he has put his name to give it credit, is over-ruled in the case of Jordane and Lashbrooke cited from 7 Term. Rep. 601. In the case of Walpole v. Pulteney, cited in Doug. 249 ( 237. )in the note, at the second trial of the cause at Guildhall at the sittings after Michaelmas term 1779, before Skynner, chief Baron, Alexander, the indorser of the bill was sworn as a witness for the acceptor, and no objection made to his competency. But in this case there is not any interest whatever in the witness. For if the evidence of Ramsay went to discharge Wilson, (till it would not go to discharge Ramsay itself. There is a case also in Espinasse’s reports, in which the acceptor was sworn as a witness in a question between the indorsee and drawer. Simms, contra. 1st. The charge of the bill in account against the drawers, does not amount to a legal discharge of the indorser. It is neither an express or an implied discharge. The holder has a remedy against all or any of the indorsers or the drawer, until he gets full satisfaction. If he gives due notice to the party to whom he means to resort, he is not bound to commence suit instanter. If he receives part from the drawer, it is so much to the benefit of the indorser, and he has no right to complain. Due notice is all that the indorser has a right to require, and if he does not then secure himself, it is his own fault. The case from Buller, N. P. 275, is not denied to be law; but Buller there says, “ if the indorsee give credit to the “ drawer, without notice to the indorser, it will discharge “ him.” But here it is admitted that notice was given, and the allegation is, that notwithstanding such notice, the subsequent charge in the accounts of Lenox and Maitland against the drawers has discharged the indorser. Lenox and Maitland might have brought suit against the drawers, without prejudice to their claim against the indorser; a fortiori, the charging a bill in account against the drawers cannot prejudice the claim against the indorser. 2d. W. Ramsay was offered as a witness generally, without a release from Wilson. The court were right in rejecting him both on the grounds of interest and of public policy. If judgment should be rendered against Wilson, Ramsay as drawer would be clearly liable to refund Wilson the costs 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 shall 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 such verdict. Rev. Code, 118. But the averment was not necessary. The declaration contains an allegation that the bill was protested 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, and not on the custom of merchants; and by the act it is only necessary that it should be a protested bill of exchange. 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 1st 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-payment. 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 dollars; the balance of the account therefore, and not the rate of exchange, must have been the guide of the jury. 3. The testimony of Ramsay was not to destroy the paper, but to explain the nature of the consideration; to shew 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 indorsee and indorser, as between payee and drawer; and if the bill was given for current money due in Virginia, the sum 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 payable, 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 protected bill of exchange.” The holder, therefore, must 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 stating 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 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 assembly has authorised sterling debts to be sued for and recovered as such. Sterling money is not to be considered as foreign money, 2 Wash. 165, Skipwith, v. Baird. The court of appeals of Virginia in that case decided that the damages must be laid in sterling. 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 said should discharge the debt, is not the exchange but the balance of account. Simms cited 3 Dall. 365, Brown v. Barry, to shew that a protest for non-acceptance was not necessary; 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. Wash. 203. Stevens v. White. 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. Simms, for defendants in error, was now permitted to support the declaration. 1st. 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 sum capable of being ascertained, though not ascertained at the time of the action brought. Doug. 6. Walker v. Witter. It is not necessary 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 well settled that in an action of debt, judgment may be rendered for less than is demanded in the declaration. Doug. 6. Walker v. Witter. I H. Blackstone, 249, M'Quillin v. Cox. In the present case the demand is for the principal sum drawn for by the bill of exchange, with damages, interest and charges of protest thereon. It appears by the record 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 clue, the residue having been settled and paid. Shall the judgment then be reversed for not stating the amount of the charges of protest, which had been previously paid, and for which the judgment was not rendered? No other action can be brought by Lenox and Maitland against Wilson for the charges of protest on the bill of exchange, stated in the declaration; no judgment has been rendered for them in the present action. How then has he been injured, or how can he be injured by the omission to state the amount of the charges in the declaration? In the declaration four distinct things are demanded, viz. 1, the principal; 2, the damages on the protest; 3, the interest; 4, the charges of protest. I take it to be settled law, that if a declaration be good in part, though bad as to another part, the plaintiff is entitled to judgment for so much as is well alleged, especially if it be not of an entire demand. An action of debt might be brought for the principal sum due on a bill of exchange, without including the damages, interest and charges of protest. If then an action of debt be brought for the principal, damages, interest and charges of protest, and the damages, interest and charges of protest, or either of them, should not be demanded with sufficient certainty, it would not be error to render judgment for that which was sufficiently alleged. In this case the principal sum is demanded with sufficient certainty, and for the principal sum only is the judgment rendered. Cro. Jac. 104. Woody’s case. 4 Bac. ab. 25, 26. A man shall not reverse a judgment for error, if he cannot shew that the error is to his disadvantage. 5 Co. 39, (b.) Tey's case. It appears by the record that judgment was not rendered for the charges of protest, therefore the plaintiff in error has sustained no damage or injury by reason of not alleging in the declaration the amount of the charges of protest. 3d. If the omission of the amount of the charges of protest could in any stage of the proceedings be considered as an error, it is cured by the verdict. By the act of assembly of Virginia, (rev. code, p. 118.) it is declared that after a verdict of twelve men, no judgment shall be stayed or reversed, for any mispleading or insufficient pleading. The omission, if it is an error, must be one or the other. In Jacob’s Law Dict. it is said to be mispleading if any thing be omitted that is essential to the action or defence. The title to recover in the action is the protested bill of exchange; that is set forth in the declaration. The title, therefore, is not wholly defective in itself, though it may be set forth defectively in not stating the amount of the charges of protest: so that it comes within the rule in the case of Rushton v. Aspinall, and 1 Call, 98, Vafs v. Chichester. The court is not bound to enquire into errors, if the party does not shew them. 2 Bac. ab. 217. E. J. Lee, in reply. The case of Walker v. Witter in Doug. 6, does not say that the sum demanded may be uncertain, but only that you may recover a less sum than that demanded. The demand must be certainly expressed, if it be possible, at the time of bringing the action. In the cases of Scott’s exr. v. Call, 1 Wash. 115, and Skipwith v. Baird, 2 Wash. 165, the amount of the charges of protest are particularly mentioned; in one they were 4/6, in the other 7/8. Feb. 26. Chief Justice.-Docs the bill of exceptions state that notice was not given to Wilson ? If it does not you can not argue upon the want of notice. tice, E. J. E. J. Lee.-It does not. But the declaration does not allege notice of the non-acceptance, nor of the non-payment ; but only of the protest for non-payment, and a material fact not averred can not be presumed to have been proved. Chafe, Justice. There is no doubt a drawer or indorser maybe discharged in express terms; or by facts amounting to a discharge; but where the discharge is not express but by implication arising from facts, the jury, and not the court, are to decide whether it is a discharge; the court ought not to say it was a discharge. Chafe, Justice. Upon the statute of gaming, usury and the like, but in no other case, are the drawers, indorsers, &c. competent witnesses. The cases all shew it. Chafe, Justice.—A protest for non-acceptance is absolutely necessary in the case of a foreign bill. The fact does not so appear in the record. Chief Justice.—The law has been so construed in Virginia. 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. Chafe, Justice. 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 Justice. If it is bad, the defendant cannot complain. It is for his benefit Chafe, Justice. That may be the opinion of the chief justice ; but I have considered 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 due. Chief Justice. The decisions have been so, although the statute of Virginia is broader than the English statute. 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. [MAJORITY — The Chief Justice] The Chief Justice delivered the opinion of the court. In this case there was an objection taken to the plaintiffs’ declaration, which was in debt on a protested bill of exchange. The declaration claims £ 300 sterling, with damages, interest and charges of protest, on a protested bill of exchange, without stating, in any part of it, the amount of those charges. The verdict is for the debt in the declaration mentioned, on which judgment is rendered, to be discharged by a less sum. The objection is, that the demand is uncertain, in as much as the amount of the charges of protest, which constitute a part of the debt claimed, is not stated. The clause of the act on which this suit is instituted is in these words, “ It shall be lawful for any person or “ persons,” &c “to prosecute an action of debt, for prin- “ cipal, damages, interest, and charges of protest against the “ drawers,” &c. The charges of protest constitute an essential part of the debt, and the declaration would not pursue the act, if those charges should be omitted. This part therefore cannot be considered as surplussage. It is a component part of the debt for which the action is given. Being a necessary 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 disregard it, if it was not a principle, deemed essential in the action of debt, that the declaration should state the demand with certainty. The cases cited by the counsel for the defendant in error, do not come up to this case. They relate to different debts; this to a single debt composed of different parts. Judgment reversed and arrested. See the case of Rudder v. Price, 1 H. Bl. reports, 550.