
    Nelson v. Fotterall.
    February, 1836.
    Richmond.
    Foreign Bill of Exchange — Presentment—Acceptance Refused — Time When, Question for Jury. — In as-sumpsit by indorsee against drawers, on a foreign bill of exchange drawn by merchants in Virginia on a merchant of Liverpool, it appears, that the bill was presented to drawee at Liverpool, and acceptance refused, on 27th March, and that the bill was put into a notary’s hands for the purpose of protest, on the 28th: Held, it was properly left to the jury to decide, upon the evidence, whether the refusal of the drawee to accept was within or after business hours of the 27th, so that the bill could be put into the notary’s hands on that day, or not until the next day.
    Same — Same—Same—Authority of Clerk — Quaere.—A foreign bill of exchange drawn on Liverpool, is presented to the drawee, and acceptance refused; and the bill is proved to have «been afterwards presented to a clerk at the draw-ee’s counting house by the notary in whose hands it was put for protest; and acceptance being by him refused, the bill is protested by the notary: whether it is necessary to prove that the clerk at the drawee’s counting house, was the clerk of the drawee authorized to accept or refuse acceptance of bills drawn on the drawee? It seems that it is not necessary.
    Same-Same — By Clerk of Notary — Acceptance Refused —Protest —Regularity of Proceeding — Usage. — It seems, that a presentment of a bill to the drawee at Liverpool, by a clerk of a notary there, and on refusal of acceptance to the clerk, a protest made by the notary, is regular; especially, as it appeared in proof, that it is the usage at Liverpool for notaries there, to present bills by their clerks, and in case of refusal to accept or pay upon such presentation, for the notaries to make protest.
    Same — Indorsed in Virginia — Negotiated in New York— Quaere, Whether New York or Virginia Bill under Statute. — A foreign bill of exchange for sterling money, drawn by merchants of Petersburg, Virginia, on a merchant at Liverpool, and dated at Petersburg, expresses on its face that it is drawn for current money there received, but does not express the amount of current money received for it; the bill is indorsed by merchants of Peters-burg, at Petersburg; and the bill is so drawn and indorsed, for the accommodation of the drawers, with purpose to send it to New York to be there sold, and it is sent to New York accordingly, and there negotiated; the bill is returned protested: in assumpsit by the New York holder against the drawers, quaere, whether, upon the construction of the statute 1 Rev. Code, ch. 126. § 1. 4, this bill is to be regarded as a New York bill of exchange or a Virginia bill? Two j udges hold, that it is a New York bill, and two that it is a Virginia bill; the other judge holds, that upon the pleadings in this case it must be regarded as a Virginia bill, it being counted upon in the declaration as a Virginia bill, the action founded on the statute of Virginia, and damages claimed and given by the verdict according to the statute.
    Same —Protest — Proof — Effect as Evidence of Dis-honour. — A protest of a foreign bill of exchange, in a foreign country, is proved by the notarial seal; but the protest is only prima facie, not conclusive, evidence of the dishonour of the bill.
    Assumpsit on a foreign bill of exchange, brought by Fotterall against Nelson surviving partner of Nelson & Minge, the drawers of the bill, in the circuit court of Peters-burg. There were three counts in the declaration.
    The first alleged, that Nelson & Minge, at Petersburg, on the 13th February 1827, drew a bill of exchange on *one Gordon of Liverpool, in favour of Dunlop & Orgain, for .£500. sterling, at sixty days after sight, for value received (without stating the amount in current money given for the bill), which bill was indorsed by Dunlop & Orgain to Clarke cashier &c. and by Clarke to the plaintiff; and then averred, that, afterwards on the-day of-, diligent search and inquiry was made for Gordon the drawee, at his counting house and at divers other places in Liverpool, in order to present the bill to him for acceptance and payment, and that he could not be found, and so had never accepted the bill, or paid the contents thereof (without alleging any protest of the bill); of ail which Nelson & Minge the drawers had notice; by reason whereof, and of the statute in such case made and provided, Nelson & Minge became liable to pay the plaintiff the said ¿500. sterling, and fifteen per centum damages thereon, in all ¿575. sterling, and being so liable, in consideration thereof, assumed to pay the same to the plaintiff.
    The second count, after setting out the drawing of the bill by Nelson & Minge, and the indorsements thereof by Dunlop & Orgain .and by Clarke, (as in tlie first count,) averred that the bill was, on the-day of-at Liverpool, presented to Gordon, and payment of its contents demanded of him, but he refused to pay the same (without alleging protest) ; and further, that at the time the bill was drawn, and thenceforth until and at the time it was presented to Gordon, the drawers had no effects in the hands of the drawee, nor had he received any consideration from the drawers for the acceptance or payment of the bill, nor had the drawers sustained any damage in consequence of not receiving notice of the dishonour of the bill; of all which Nelson & Minge had notice; by reason whereof, and of the statute in such case made and provided, Nelson & Minge became liable to pay the plaintiff the contents of the bill, and ¿75. for damages thereon, in all ¿575. and being so liable, assumed &c..
    *The third count was like the first, except that this stated Nelson & Minge’s liability and assumpsit for ^500. sterling the contents of the bill only, without claiming damages, and without founding the right of action on the statute.
    The defendant pleaded the general issue.
    At the trial, the defendant filed a bill of exceptions to opinions of the court; from which it appeared, that the plaintiff offered in evidence, 1. The bill of exchange in the following words — “Petersburg, February 13thj. 1827. Sixty dajTs after sight of this our first of exchange (second, third and fourth of the same tenor and date not paid) pay to Messrs. Dunlop & Orgain or order in London ¿500. sterling, for value in current money here received, and place the same to acount &c. (signed) Nelson & Minge;” addressed “to Mr. Samuel Gordon, Liverpool;” indorsed, “Dunlop & Orgain;” “William Clarke cashier of the Farmers Bank of Virginia, Petersburg.” And ,it was admitted, that the bill in question was drawn by Nelson & Minge at Petersburg, and indorsed there by Dunlop & Orgain for their accommodation, and that the Farmers Bank of Virginia at Petersburg (of which Clarke was the cashier) undertook to dispose, and did dispose, of the bill at New York, for and on account of the drawers, who drew the bill with intent to have it negotiated in that manner. 2. A protest of the bills for non-acceptance, dated the 28th March 1827, signed by W. S. Miller, a notary public in Liverpool, stating that he had on that day, at the request of the holders, presented the bill for acceptance, to a clerk in the counting house of Gordon the drawee, and received for answer, that the bill would not be accepted, he having received no orders to accept the same. 3. The deposition of a notary public of New York, proving that the bill was returned so protested to New York, on the 7th May 1827, and that he gave immediate notice *thereof by letter addressed and sent by mail to the drawers. 4. The deposition of J. Jackson a clerk of W. & J. Brown & Co. the holders at Liverpool, proving, that the bill was received by them there, on Saturday the 24th March 1827, and about the middle of that day; and that in the afternoon of that day, shortly after the bill was received, and again during business hours on Monday the 26th March, the deponent attended, with the bill, at Gordon the drawee’s counting house in Liverpool, in the whole six several times, but on all those occasions he found Gordon’s counting house closed, so that he could not present the bill, and all he could do was to put a note under the door of the counting house addressed to Gordon; which he did, and on the evening of the same Monday, reported the result of his endeavours to present the bill, to E. Frodsham, one of the partners of W. & J. Brown & Co. the holders. 5. The deposition of E. Frodsham, proving, that Jackson, the clerk, having reported to him his unsuccessful endeavours to present the bill, he Frodsham took up the business early on Tuesday morning the 27th March; and learning that Gordon, the drawee, had very little business, and that he transacted what business he had, on the exchange, or in brokers’ offices, or in the Union newsroom, giving very little and very irregular attendance at his own counting house, either in person or by any clerk, the deponent made diligent inquiry for him accordingly, without being able to find him; but that Gordon (either in consequence of the deponent’s inquiries, or, as the deponent believed, of Jackson’s note to him) came to the deponent’s house, and the presentation of the bill to him was then effected, so as to get the same protested on the Wednesday following (28th March) after his refusal to accept the bill. And 6. the deposition of W. Holt, a clerk of Miller the notary public of Liverpool who made the protest of the bill, proving, that it was the practice of notaries in Liverpool *and elsewhere in England, to present bills of exchange to the drawees, for the purpose of protesting them for non-acceptance or nonpayment, by their the notaries’ clerks; that, accordingly, he Holt, clerk of the notary Miller, went, on the 28th March 1827, to Gordon’s counting house, with the bill in his hands to present, and presented it to a clerk whom he found there; who gave for answer, that the bill would not be accepted, he having received no orders; whereupon the bill was protested by Miller the notary. And this being all the evidence in the cause, the defendant’s counsel moved the court to instruct the jury—
    1st, That it was the duty of the holders of the bill at Liverpool, on Tuesday the 27th March 1827, when the drawee refused acceptance of the same, to put it in the hands of a notary public for protest, without waiting till the next day; unless prevented by inevitable accident, which must be proved to the jury. 2dly, That the presentment of the bill by the notar}’ to a clerk in the drawee’s counting house, and the clerk’s refusal to accept the same, was not sufficient to authorize the notary to protest the bill for non-acceptance, unless it should' be proved, that the clerk to whom the bill was presented, was the clerk of the drawee, and authorized either to accept or to refuse to accept the same, for and on account of the drawee. 3dly, That the notarial presentment of a foreign bill of exchange for acceptance, and the notarial demand of acceptance of such a bill, must be made by the notary in person, and that the presentment thereof, or demand of acceptance made by a clerk, is not sufficient to authorize the notary to protest the bill for nonacceptance, he having personally neither-seen nor sought for the drawee. 4thly, That if upon the facts admitted or proved in the cause, the plaintiff was entitled to recover, his recovery must be limited to the-nominal amount of the bill in currency, with damages, interest, costs and charges, and the current premium on bills on x'England, and that the ¿500. expressed in such bill must be held and taken by the jury as current money, and their verdict given accordingly.
    But the court refused to give such instructions, and proceeded to give the following opinion—
    1st, That the evidence ought to be submitted to the jury, for them to determine, whether the business hours of the day, on which acceptance of the bill was refused, had not then elapsed, or so nearly elapsed, that the bill could not be put in the hands of the notary on that day, within the business hours thereof; and if the fact was so, that the protest of said bill on the day following was legal and regular. 2dly, That if the facts were as stated in the depositions, it was sufficient under the circumstances of this case, for the notary to make application at the counting house of the drawee, and upon receiving the answer which he did from the clerk, to protest the bill as he did. 3dly, That as to the third; proposition of the defendant’s counsel, though the general abstract proposition might be true, yet the protest of a foreign bill of exchange, made in a foreign country,, proved itself; and the protest now produced, appearing on its face to be in all respects regular, parol evidence was not admissible, to prove that the protest was not made in the manner stated therein; but it was competent for the defendant to prove, by legal evidence of any kind, either that the bill was not presented by the holders, that acceptance was not to them refused, or that these things were not done in proper time by them. And 4thly, that a bill made and indorsed in Virginia for the purpose of being sold in New York, and actually sold there, was not within the meaning of the statute of Virginia,* as the defendant’s counsel, in their motion for the fourth instruction, supposed. And the court then added, that the defendant might introduce any evidence to prove, that he had been injured by the delay of which he complained in making the protest, or by the mode of doing it: but no such evidence .was offered. Whereupon, the defendant’s counsel excepted to the refusal of the court to give the instructions they asked, and to the opinions which the court gave.
    There was a verdict for the plaintiff, for 27Í7 dollars 77 cents, with interest on 2222 dollars and 22 cents part thereof, from the 13th November 1827, till paid; and the court gave him judgment ■ accordingly. The defendant applied by petition to this court, for a supersedeas to the judgment; which was allowed.
    The cause was argued here by Johnson for the plaintiff in error, and Robertson for the defendant.
    . I. Johnson objected, that the declaration was not merely defective, but upon the plaintiff’s own shewing *in it, he had no right to recover. The first and third counts did not allege any presentation for acceptance or.for payment, or any protest for non-acceptance or non-payment; the second alleged presentation for payment and refusal of payment, but no presentation for acceptance of this bill at sixty days sight, and no protest whatever. Now, he said, by the law merchant, whenever notice of non-acceptance or of non-payment of a foreign bill was necessary, a protest was indispensably necessary; Chitt. on Bills, 278. And, mo.st certainly, a protest was necessary to entitle the party to fifteen per cent, damages under the statute of Virginia, claimed in the two first counts; upon which, manifestly, the verdict was found.
    Robertson answered, that though the protest was said to be indispensable, yet it was admitted to be a mere matter of form. But, .admitting this was a defect in the declaration, either of form or of substance, it “might have been taken advantage of by demurrer,” but was “not so taken advantage of;” so that the verdict cured the defect, by the statute of jeofails, 1 Rev. Code, ch. 128, $ 103, pp. 511, 512; Pasteuf v. Parker,-3 Rand. 458; Bailey v. Clay, 4 Rand. 346; Thompson v. Cumming, 2 Leigh 321; Jackson’s adm’xv. Henderson, 3 Leigh 196, 206, 7. It was impossible to say, on which count of the declaration the verdict was found; but, by our law and practice, if any count was good, that was enough. The first and third counts shewed a case, in which the drawee could not be found, so that the bill could be presented to him, and acceptance demanded; of which notice was given to the drawers; and, in such case, he insisted, a protest was not necessary. The second count shewed a case of a bill drawn upon a person who had no effects of the draWers in his hands; which dispensed with notice of non-acceptance or non-payment, Chitt. on Bills, 258, 260, and, by consequence, 1 rendered the protest unnecessary, Id. 278.
    *11. Johnson objected to the opinions of the court stated in the bill of exceptions.
    1st, He said, that by the law merchant, the protest for non-acceptance, or for nonpayment must be made, or at least must be noted, within the usual business hours, on the day of acceptance or payment refused, unless excused by inevitable accident; Chitt. on Bills, 288. Here, according to this rule, the bill ought to have been put into the notar3r’s hands at least as early as the 27th March, but it was not put into his hands till the 28th. The circuit court admitted the general rule; but, though there was no proof what were the business hours or that there were any business hours, no proof of the time of day on the 27th, at which the drawee refused acceptance, and no proof of any accident whatever to prevent the holders from taking the regular course on the bill, the judge told the jury, that they were to determine upon the evidence, whether the business hours of the day when acceptance was refused, had elapsed, or so nearly elapsed, that the bill could not be put into the notary’s hands on that day, and if so the protest on the following day was regular.
    Robertson said, this was not a special verdict or demurrer to evidence, but an exception to an opinion of the court. The distinction was well settled, Newsum v. Newsum, 1 Leigh 80. A special verdict or demurrer to evidence must exhibit the whole case, and that a complete one: a bill of exceptions generally stated only so much of the evidence as sufficed to shew the relevancy of the point of law, and, sometimes, all the evidence adduced before the point was raised; but, in no case, could it be regarded as stating all the evidence in the cause, since after the point moved and decided, other evidence might be adduced. Here, for aught that appeared, there might have been evidence afterwards adduced, to shew what were the business hours at Liverpool, and that it was after the business hours of the *27th March when Gordon, the drawee, called on Frod-sham, the holder. He added, that this was a question of due diligence, mixed of law and fact, and was properly left to the jury; Chitt. on Bills, 213, 214, 333, and the notes there. Bateman v. Joseph, 12 Fast 433.
    2ndly, Johnson said, the case shewn in evidence was, that the bill was presented on the 28th March by the notary's clerk to a clerk whom he found in the drawee’s counting house, not only without evidence that this clerk was authorized to accept or refuse acceptance of bills for the drawee, but that he was the clerk of the drawee for any purpose. The circuit court told the jury, that if the facts were as stated in the depositions, it was sufficient for the notary to make application at the drawee’s counting house, and upon receiving the answer he did from the clerk, to protest the bill.
    Robertson remarked again, that this point did not come before the court on a special verdict or demurrer to evidence; and for aught that appeared, direct proof might have been adducd to the jury, after the opinion was given by the court, that the clerk found in Gordon’s counting house was his duly authorized clerk. But when it was considered, that Gordon the drawee himself had already refused to accept the bill, in consequence of which it was put into the notary’s hands, and that after this, the notary presented the bill to the clerk whom he found at the drawee’s counting house, and he also refused acceptance, there could be no pretence that this clerk was not authorized to do what his principal had done before. In truth, after acceptance had been refused to the holder by the drawee, the presentations of the bill by the notary at his counting house, was mere matter of form.
    3rdly, Johnson insisted, that the bill ought to have been presented by the notary himself, and not by his clerk, in order to justify the notary in making the protest. Chitt. on Bills, 280. The circuit court did not *deny this principle; but it told the jury, that the protest of a foreign bill, made in a foreign country, proved itself, and that this protest appearing regular on its face, parol evidence was not admissible to prove that it was not made in the manner therein stated ; that is, that the evidence of the notary’s clerk was not admissible to prove that he presented the bill, against the protest which stated that the notary himself presented it. But though the protest under the notarial seal was proof that the protest was made, without proof of the notary’s signature or of his seal, Chitt. on Bills, 279, yet the protest furnished no conclusive evidence of the facts stated in it, so that they could not be contradicted by other evidence. Bayley on Bills, 332, n. 44; Browne v. Philadelphia Bank, 6 Serg. & Raw. 484; 4 Gwyl. Bac. Abr. 725.
    Robertson answered, that Mr. Chitty himself doubted the proposition, that the notary must act in person in such cases, and could not act by a clerk: he cited for it a dictum (+'or it was only a dictum) of Buller, J., in Leftley v. Mills, 4 T. R. 175, and added a quere. There was no good authority for such a rule; and in large commercial cities, like Liverpool, it would be most inconvenient in practice, if not impracticable. Besides, it was proved, that by the usage at Liverpool, notaries acted by their clerks in all such cases; and there was no reason why this particular usage of the place should *not be respected, as well as other commercial usages. If the notary might regularly act by his clerk, it was wholly unimportant whether the circuit court had given a good reason for holding that the proceeding in this particular case was to be regarded as regular. But the reason which the court gave, was a good one. The proposition was true, that the protest at Liverpool, under the notarial seal, proved itself, and was evidence of the dishonour of the bill, to which our courts must give credit; Chitt. on Bills, 280. But the protest would be wholly nugatory, it would not be evidence of dishonour, or of any thing in the least degree material, if it was not evidence of the presentation of the bill for acceptance, and of acceptance being refused, in which alone the dishonour of the bill consisted.
    4thly, Johnson maintained, that this was a foreign bill of exchange drawn in Virginia, and must be regarded as a Virginia bill, to be governed by the law of Virginia, where-ever it was negotiated, or intended to be negotiated; and by the law of Virginia, as the bill did not express the current money given for it here, the money for which it was drawn must be taken to be ^500. of our own currency, not sterling. The circuit court erred in holding this a New York bill. The bill was drawn at Petersburg, and expressed on its face that it was “for current money there received.” The contract of the drawers, too, was a contract to be performed by them in Virginia. The lex loci contractus, then, was the law of Virginia, not of New York. But the pleadings were decisive of the point: the first two counts of the declaration counted upon it as a Virginia bill, founded the action on our statute, and accordingly claimed fifteen per cent, damages ; and that the verdict was found, not on the last count, but on the first two, was apparent from the verdict itself, for it gave the damages, which were only claimed in the first two counts.
    ^Robertson answered, that though this bill was drawn and indorsed by all the indorsers at Petersburg, it was admitted, that it was a mere accommodation bill, as betweep all the parties, drawer and indorsers, and was made and indorsed with intent to be negotiated in New York; and it was in fact negotiated there. Now, an accommodation bill could never be effectual to any purpose, till negotiated for value; the contract was only perfected by the negotiation of it. Therefore, the contract between the drawer and his accommodation indorsers on the one hand, and the purchaser of the bill at New York on the other, was made, as it was intended to be made, at New York. It was, then, a New York not a Virginia, bill of exchange. The place where the bill was dated, was wholly immaterial ; the question was, where the contract upon it was in fact made; and the lex loci of the actual contract made must govern ; not the lex loci of the mere drawing and indorsing of the bill, which alone gave it no efficacy. A note made and indorsed at Clarksburg in Virginia, to be negotiated at a bank in Ohio, was held to be an Ohio contract; Bank of Marietta v. Pindall, 2 Rand. 467. It was impossible to express on the face of the bill, the current money received for it; since that could only be ascertained by the sale of it in New York. And when the bill expressed, that it was drawn “for current money here received,” that must be understood (having due regard to the facts of the transaction) to mean current money received at New York, where it was intended to be negotiated, where money was expected to be obtained for it, where money was for the first time given for it; not current money 'received at Petersburg, where no money was in fact paid, and none asked or expected. No current money of Virginia was given for the bill, but only current money of New York: the bill could not be bettered, by expressing on its face what was false. It would be a fraud upon the purchaser at New York, if ‘^Virginia merchants were allowed to draw a foreign sterling bill at home, for their own accommodation, with a view to sell it at New York, make it imperfect as a sterling bill by the law of Virginia, send it to New York for negotiation, and sell it there; and then rely upon its imperfection according to our laws, for the purpose of avoiding the obligation of paying its contents in sterling money.
    As to the argument drawn from the two first counts in the declaration counting on the bill as a Virginia contract, and claiming the fifteen per cent, damages given by our statute; he said, that admitting the verdict to have been found on those two counts, yet it did not appear, but that the same damages were given on protested bills by the law of New York as by the law of Virginia; and then the whole objection came only to this, that the lex loci con-tractus, the law of New York, was not expressly counted on to support the claim for damages. But, surely, by the statute of jeofails, such a defect in the declaration as that, was cured by the verdict. To make the application of the statute of jeo-fails perfectly plain, he said, that if the court should hold, that this was in reality a New York bill, but that, upon the strength of the plaintiff’s declaration, it must be taken as a Virginia bill, and should reverse the judgment for that reason, the plaintiff, when the cause got back to the circuit court, might amend his declaration, by adding a new count upon the bill as a New York bill, and then he would be entitled to recover the sterling money in currency with New York damages.
    Neither did this bill appear on its face, to be a Virginia bill of exchange, drawn with reference to the law of Virginia; and that, precisely because it did not express on its face the sum in current money received for it, which was a well known and peculiar characteristic of Virginia bills. That the bill being dated at Petersburg, the place of residence of the drawers and indorsers, *did not constitute it a Virginia bill, was decided in the case of The Bank of Marietta v. Pindall; and that case determined further, that the place of residence of the drawers and indorsers, did constitute it a Virginia bill; that the contract was transitory, and followed the parties wherever they might be or might go. This consideration, too, refuted the argument, that the liabilities of the drawers are to be determined by the law of Virginia, because their contract was to be performed here. They were bound to perform it in any part of the civilized world where the3r should be found.
    
      
      Negotiable Notes — Authority of Clerk to Refuse Acceptance — Parol Evidence, — In Stainback v. Bank ofVa., 11 Gratt. 266', it is said: “The protest in this case is in the same form as that in Nelson v. Fotterall, 7 Leigh 179. In that case the whole court seems to have thought that parol proof was admissible to show the clerk’s authority to refuse acceptance.”
      Same — Presentment—Time and Place of. — In Waring v. Betts, 90 Va. 63, 17 S. E. Rep. 739, it is said: “When the note is payable at a bank, it is to be presented during banking hours; and the payer is allowed until the expiration of banking hours for payment. But when not to be made at bank, but to an individual, presentment may be made at any reasonable time during the day during what are termed business hours, which, it is held, range through the whole day to 'the hours of rest in the evening, Parsons, 447. citing Cayuga County Bank v. Hune, 2 Hill 635; Nelson v. Fotterall, 7 Leigh 194.” See mono-graphic note on "Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      The statute concerning sterling debts and foreign bills of exchange, 1 Rev. Code, ch. 126, p. 485. —The first section provides, “that where any foreign bill of exhange is or shall be drawn, for the payment of any sum of money, in which the value is or shall be expressed to be received, and such bill is or shall be protested for non-acceptance or non-payment, the drawer or indorser shall be subject to the payment of fifteen per centum damages thereon, ard the bill shall carry an interest of six per centum per annum from the date of the protest, until the money therein drawn for shall be fully satisfied and paid.” The fourth section provides, that “ in all foreign bills of exchange, given for any debt due in current money of this commonwealth, or for currenfmoney 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 thereby, the sum of money expressed in such bill shall be held and taken as current money, and judgment shall be entered accordingly; and, if any person, so’receiving or purchasing a bill of exchange, shall express, or cause to be expressed therein, any other than the true sum in current money allowed for the $ame, every such person so offending shall forfeit and pay to the person drawing such bill, the whole sum of money for which such bill shall be drawn, to be recovered, with costs, by action of debt in any court of record within this commonwealth, wherein the same shall be recognizable.’’ — Note in Original Edition: . ' I
    
    
      
      Philadelpliia edi. of 1820.
    
    
      
      It. -will be observed, that the edition of Mr. Chitty’s treatise referred to in the argument, was the Philadelphia edition of 1820. But in the 8th London edition and the 8th american edition (Springfield 1886) Mr. Chitty in the text, repeats this proposition, that the notary must, in such cases, act in a person, not by a clerk, but still with a quere: p. 363. And recurring to the subject again pp. 493-6, he says, it was a mere dictum of Buller, J., and that the practice of the notaries of Liverpool and London is in direct opposition, to the supposed necessity for the notary public himself demanding payment. And he gives, in a. note, a correspondence between the notaries and him, on the subject. — Note in Original Edition.
    
   BROCKENBROUGH, J.

The questions, to be decided, are, whether the court erred in refusing to give the instructions which were asked for, or in those which it did give?

As to the first. The presentment of a bill of exchange for acceptance, should in all cases be made during the usual hours of business. It appears, in this case, that fruitless attempts were made by the clerk of the holder to find the drawee at his counting room, on Saturday the 24th March (the very day when the bill arrived in Liverpool) and on Monday the 26th; that, on the 27th, diligent search was made' by the holder himself at the exchange, the brokers’ offices, and the news room, at which places the drawee did most of the little business which he transacted; and that, in consequence of these searches and inquiries, the drawee at length made his appearance at the house of the holder, the bill was presented to him, and he refused to accept. It does not certainly appear, that it was on the '27th that the drawee went there: it may have been on the 28th, and it is only by inference that the time can be ascertained. But admit that it was on the 27th, yet, surely, if it was too late on that day for the holder to find the notary, and put the bill into his hands to enable him to make the presentment during the usual hours of *business on that day, it was useless then to put it into the hands of the notary, since it could not be presented till the next day. Here was a case in which something less than an inevitable accident would excuse the holder from putting the bill into the notary’s hands on that day. The court, therefore, did right in refusing to give the instruction asked for, and in modifying it in the manner it did.

As to the second instruction. It is true, that the presentment of a bill should be made to the drawee himself, or his authorized agent. But I cannot perceive any good reason why this instruction should have been given. The evidence shews, that the drawee was hard to be found, that after being found he promptly refused acceptance to the holder, and that afterwards when the notary went to the counting house of the drawee, he presented the bill to the clerk there found, and demanded acceptance thereof, and received for answer that the bill would not be accepted, he having received no orders to accept the same. Under the circumstances, the notary had a right to presume, that the clerk was authorized by his principal to refuse the acceptance, and the court was right in drawing the same conclusion.

The third instruction that was asked for, was, that the notarial presentment could not regularly be made by the notary’s clerk, but must be made by the notary himself, in order to warrant the notary in making the protest. This general proposition was probably founded on a remark of Mr. Chitty, who says, “the demand is the material thing, and must, it is said, in the case of a foreign bill, be made by a notary public himself, to whom credit is given because he is a public officer, and it cannot be made by his clerk.” A similar remark had been made by Gwyllim in his edition of Bacon’s Abridgment, vol. 4, p. 725, but in rather more positive terms: ‘‘The demand of payment of a foreign bill, must be made by *the notary public himself, and not by his clerk.” But both of these writers refer for the proposition, to a dictum of Buller, J., in Leftley v. Mills, 4 T. R. 175. Chitty had certainly some doubts of its soundness, for he introduced it with an it is said ; and in the note, he adds sed quere. When we look at the case referred to, we find it as follows. It was an action by an indorsee of an inland bill of exchange, against the acceptor. The bill was dated 4th April 1790, payable fourteen days after sight, and being accepted on the 7th, consequently became due, allowing the three days of grace, on the 24th, which fell on a Saturday. There was a plea of non assumpsit as to the whole except as to £20. 7. 6. and as to that a plea of tender. On the 24th, the plaintiff having left the bill at Lockhart’s (his banker) at Pall Mall, one of Lockhart’s clerks called at the defendant’s house with the bill, but the defendant not being at home, the clerk left word where the bill lay, that the defendant might send and take it up; which not being done before six o’clock, it was noted by another clerk of Lockhart, who was a notary. Between seven and eight o’clock in the evening, the same person who first went to the defendant’s called on him again with the bill, in the character of a notary’s clerk, when the defendant offered to pay the bill, but refused to pay half a crown more which was demanded for the notary. Several questions arose in the case; but the only one decided by a majority of the court, was, that the statute of Will. 3, respecting protests of inland bills, did not apply to such bills as were made payable after sight, and applied only to such as were payable after date. A difference of opinion existed between lord Kenyon and Buller, J., as to the question,, whether the acceptor of an inland bill is. bound to pay it on demand at any reasonable time of the third day of grace, or whether he is allowed the whole of that day to pay it in. These two questions have nothing to do with the*one now under consideration. But Buller,, J., alone gives his view of what is necessary to be done in making a protest: after stating, that three things are necessary, the noting, demanding and drawing up the protest, he said — “The next and material part is the making of the demand” — “It is material too, to consider by whom the demand was made in this case. I am not satisfied that it was a proper demand, for it was only made by a banker’s clerk. The demand of a foreign bill must be made by a notary public, to whom credit is given because he is a public officer.” This opinion is clearly an obiter opinion; for the judge immediately after says that there could not be any protest at all in the case, as none was required at common law on inland bills, and the statute of William does not apply to it. Admit, however, that it has great force, on account of the eminent source from which it springs, yet what does it prove? The notary charged the acceptor with half a crown, the fee for noting the bill. If the demand of payment was made by a person properly authorized, and the acceptor refused payment to him, and the notary then noted the bill for protest, he was entitled to his fee: but if the demand was not made by a proper person, the note for protest was not properly made, and the notary had no right of his fee. But the judge was not satisfied that it was a proper demand, for it was only made by the banker’s clerk. He does not say it was made by the notary’s clerk, and therefore he does not say, that if it had been made by such an one, the demand would have been an improper one. The noting, according to the statement, was founded on the previous demand by the banker’s clerk, which was not satisfactory to the judge. At the time he made the demand, he was not the clerk of the notary. It is true, that an hour or two after the noting was made, the same clerk called again with the bill in the character of notary’s clerk, but this new character did not validate the demand *which he had previously made in a different character. The judge goes on to say, that the demand of a foreign bill must be made by'a notary public, to whom credit is given, because he is a public officer. This general observation must be taken with reference to the case before him, and clearly discountenances the demand made by a clerk who was not in the employment of the notary nor in any manner under his control: but it ought not I think to be extended further. And it seems to me, that much inconvenience would result, in commercial proceedings, from establishing the principle, that a presentment and demand made by a notary’s clerk, is not a sufficient foundation for a protest; and, on the other hand, that no injury can proceed from allowing it. In such a commercial emporium as Liverpool, a notary public of reputation must be frequently crowded with business: without the aid of his clerks, he must neglect much of it. It may be necessary to make demands in different parts of the city, at the same moment, whilst his own presence in his office is indispensable; and most of this business must be done within certain hours of the day. If the simple business of making demands on bills, or even of receiving the money due on them, cannot be done by his clerks, it must frequently go undone, or the holders must resort to other notaries of inferiour reputation, or those less approved of. Then, I ask, where is the danger of confiding this business to his clerk? He is under the control and direction of the notary, who is responsible for his acts, and his omissions of duty. The protest is to be drawn up by the notary himself, and the law may well confide in his discretion that .he will not solemnly protest, unless he is entirely satisfied that the demand has been made as it ought to be made. The necessity of employing clerks of the notaries in this matter justifies the practice; and, accordingly, it is proved in this cause, that it is the usage in Liverpool for notaries to do this *kind of business by their clerks. I think, then, that the obiter dictum of judge Buller should not be allowed to make the law, particularly as he had not before him the very case of a demand by a notary’s clerk, as the foundation of a protest by the notary. I cannot rely,-as authority, on the mere adoption of this principle by Gwyllim, nor on the hesitancy of Chittj’- in adopting it, particularly as judge Bayley in his treaties on bills has not adopted it. In the fourth edition of that work revised by himself, that principle is no where laid down; and although-in the notes he has twice referred to the case of Leftley v. Mills, he has omitted the above mentioned dictum of judge Buller. Chitty, in a subsequent edition (Philadelphia edition of 1826, p. 417), further remarks, that the doctrine which he had laid down so hesitatingly, was sanctioned in a late case, and he refers to the case of ex parte Wasley, 2 H. Blacks. 27S. In this, I think, he is mistaken. The decision there, was merely that where the rule of court required that the affidavit of the acknowledgment of a warrant of attorney to suffer a recovery, shall be attested by a notary public, that rule should be strictly observed, and th.at the taking of the affidavit before an ordinary magistrate of Gibraltar, did not come within the rule, unless it was attested by a notary public.

I am of opinion, that the third instruction was properly refused by the circuit court. The judge seemed to admit the proposition to be true, but refused it, because the protest of a foreign bill of exchange, made in a foreign country, proves itself. This position is correct. 12 Mod. 345; Bayley 332, n. 44. But the judge went further and said, that the protest now produced appearing on its face to be in all respects regular, parol evidence was not admissible to prove that the protest was not made in the manner stated therein. This is laid down too broadly, for it seems sufficiently clear that the notarial protest is' only prima facie not conclusive evidence, *that the bill was not accepted, or not paid, and therefore may be contradicted by other evidence. 4Gwyl. Bac. Abr. 725. But I do not think, that this erroneous reason given by the judge, is a sufficient ground for reversing the judgment. He did not mean to say, that evidence might not be admitted to prove that the presentment and demand were not made at all; if he had intended to say so, he would have given an opinion on a mere abstract proposition, for no such case was made by the evidence before him: he merely meant to say, that as the protest stated that the notary himself had made the demand, evidence was not admissible to prove that the clerk of the notary had made it. Taking it in this restricted sense, the opinion is not so objectionable as has been supposed: for on the concession that the demand may be made by the notary’s clerk, as the foundation for the notary’s protest, it is useless to introduce evidence to contradict the protest in this respect; because, quacunque via data, the protest is unexceptionable. I therefore repeat, that this reason given by the court is no ground for setting aside the judgment.

The fourth instruction asked for involves a question of the lex loci con-tractus. It was admitted at the trial, that the bill of exchange was drawn at Peters-burg for the accommodation of the drawers residing there; that Dunlop & Orgain indorsed it, also for the accommodation of the drawers; and that the Farmers Bank of Petersburg, whose cashier also indorsed it, undertook to dispose and did dispose of it, in New York, for and on account of the drawers, who made it with the intention of having it negotiated in that manner. The plaintiff appears to have been the purchaser. The bill came back protested from Liverpool; and in ascertaining the extent of the recovery to which the holder is entitled from the drawers, the question is, whether the law of New York, or that of Virginia, is to prevail?

*The general rule is, that where persons enter into a personal contract in a foreign state or country, and a litigation grows out of it, the law of the place where the contract was made, gives the rule of decision. There is, however, an exception to this general rule; which is, that where the transaction is entered into with a view to the laws of another country, then the law of the place of contract will not govern. The rule, and the exception, are laid down by lord Mansfield in Robinson v. Bland, 2 Burr. 1078. There, the first count in the declaration was on a bill of exchange drawn at Paris by sir John Bland on himself in England, for the sum of sterling, payable to the order of Robinson the plain tiff, ten days after sight, value received, and accepted by sir John Bland. The bill was given for ,£300. lent at Paris by the plaintiff to Bland, at the time and place of play, and for ,£372. more, lost at the same time and place, by Bland to the plaintiff, at play. The judge, after laying down the rule and exception, said— !;i[ow, here, the payment is to be in England ; it is an english security, and so intended by the parties.” Huberus is quoted by' lord Mansfield, and in the passage referred to, that author, after laying down the general rule, says — “Nevertheless, the place in which the contract is entered into is not so entirely to be respected, as that if the parties, in contracting, look to another place, that place is not the rather to be considered. Eor every one is understood to have contracted in that place in which he bound himself that he would pay.” In the case of Warders v. Arell, 2 Wash. 282, the authority of Robinson v. Bland and of Huberus was approved and relied on. There have been several interesting decisions in the supreme court of the CJ. States that bear on this question. The rule and the exception seem to be clear enough, and yet the application of them to the case under consideration is sometimes attended with difficulty. See Slacum v. Pomeroy, 6 *Cranch 221; Lanusse v. Barker, 3 Wheat. 101, 146; Boyce & Henry v. Edwards, 4 Peters 123.

How was it in the case before us? Although the bill was drawn in Virginia, yet it was sold in New York. There was no contract in Virginia, between the drawer on the one hand, and Eotterall on the other. It was no contract till the bargain was made for the sale of the bill; and that was made in New York. The contract was not even begun at Petersburg ; it begun and ended at New York. That being the place of contract, the law of that place must govern, unless the parties, when the sale was affected, had reference to Virginia as the place in which the defendant would repay the money, in case the bill should come back protested. I incline to the opinion that they had no such reference. The money was advanced in New* York, and according to Eanusse v. Barker, it was to be replaced there.

But if I am wrong in this particular; if the parties, though contracting in New York, had reference to Virginia as the place for the payment, by the drawer, of the contents of the bill and its incidents accruing upon the dishonour of it; I am yet confident, that the circuit court did not err in its construction of our statute directing that the current money paid or allowed on foreign bills shall be expressed on the face of them. The statute contemplates bills purchased in this state. The 4th section speaks, first, of bills given for a debt due in current money of Virginia: a debt due in current money of Virginia is a debt contracted in Virginia; and if the bill be given for such debt, it is still a Virginia transaction. So, if the current money of Virginia be advanced and paid for such bill, the bill is purchased and paid for in Virginia. A man advancing or paying money at Philadelphia or New York, for any article sold there, although it comes from Virginia, does not pay in Virginia currency,, but in Pennsylvania or New York currency. In this case, although the bill was drawn *'and indorsed in Virginia, it was not drawn and indorsed for any money' advanced or paid here, because it was drawn and indorsed expressly for the purpose of being negotiated in New York. It was made to be sold there, and was sold there: there was no contract till it was sold there: it was, as to Eotterall, a mere blank piece of paper till he purchased it, and when he purchased it, he paid for it in the current money of the place where the transaction occurred. Although the bill expresses on its face that it is for current money here advanced (if that meant Petersburg) it was not necessarily true; and the sale of the bill in New York shews that in fact it was not true. The purchaser cannot be estopped from shewing that that averment was not agreeable to the fact. It was of no importance to the validity of the bill, whether it expressed the consideration to be for Virginia currency paid, or not; all that was important was, that the bill should express “value received,” as the consideration. But the last clause of the section shews, clearly, that it extends only to bills purchased and sold in Virginia. It inflicts a penalti' on the purchaser. It is to be remarked, 1. that the law supposes that the drawer can have no inducement to insert an untrue sum in the bill, but that the purchaser may express a false consideration, or cause it to be expressed: it supposes, then, that the purchaser is to be present by himself or his agent when the bill is drawn ; present at its concoction; the actor in the insertion of a false consideration on the face of the bill. It does not apply to the case of a drawer being himself the criminal actor, inserting a false consideration, and sending out the bill ready drawn and indorsed to another state to be sold for what it is really worth. It does not apply to a purchaser of such bill in another state, who takes the bill as he finds it prepared, and pay's for it in his own currency. 2. The imposition of a penalty shews that the law contemplates the purchase to be in ^Virginia. Our courts can take no cognizance of an offence committed in another state. The legislature would not do so vain a thing as to inflict a penalty on the making of a contract in another state, which if done here is unlawful, and might well be punished, but may not be unlawful in the state where it is done, and if unlawful can only be punished by their own tribunals. If this law be applicable to the present case, then the innocent purchaser might be punished, and the guilty drawer rewarded.

I have not turned much of my attention to the„ pleadings in this case. The counsel for the appellant began with an attack on the declaration, but in the progress of the discussion he seemed to abandon his objections to it, and relied on the alleged errors in the instructions of the court, as the ground for reversal of the judgment. The declaration does not charge a protest for non-acceptance or non-payment of the bill. But this is no ground for arresting the judgment. At the most, the omission could only be taken advantage of by a special demurrer; Bayley 285, n. 236. But even if it would be bad on general demurrer, the judgment could not be arrested under the broad words of our statute of jeofails, which, after verdict, cures every defect, ‘ ‘ whether of form or substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of.”

It has been suggested, that the verdict and judgment are erroneous in giving damages for the protest, the declaration not having set forth a protest. If the defendant had thought proper to make this objection, and to move the court to direct the jury not to give such damages, because there was no allegation of a protest, I will not say that such direction should not have been given; but as the defendant waived the objection, or did not make it at the proper time, and before the proper tribunal, I do not think the appellate court ought to help him.

*It is further suggested, that there is no allegation in the declaration that the bill, though drawn and indorsed at Petersburg, was negotiated in the city of New York. I do not know that this was at all necessary, but if it was, it would have been enough to have alleged it under a scilicet: that the bill after being made and indorsed in Petersburg, was sold and transferred to the plaintiff at the city of New York, to wit, at Petersburg aforesaid. The want of such allegation is surely cured by the statute of jeofails. Again, at the trial the defendant did not object to the evidence proving that the contract was made at New York; he therefore waived all objection to the want of this allegation, and it cannot now be brought forward to operate in his favour.

I am of opinion, that there is no error whatever in the judgment, and that it should be affirmed.

CARR, J.

I concur with my brother Brockenbrough, on all the points; andas to the first two, I shall add nothing to what he has said.

The third instruction asked for the defendant, was that the notarial presentment of a foreign bill, and the notarial demand of acceptance &c. must be made by the notary himself, and that a presentment and demand by his clerk is not sufficient to authorize a protest, the notary having personally neither seen nor sought for the drawee. The circuit court in answer to this, admitted that the general abstract proposition was correct; but it added, that “the protest of a foreign bill of exchange, made in a foreign country, proved itself:” and this proposition is certainly correct; all the books so lay it down. But the court went on to say, that “the protest now produced, appearing on its face to be in all respects regular, parol evidence was not admissible to prove that the protest was not made in the manner stated therein; but it was competent for the defendant to prove by legal evidence of any sort, either that *the bill was not presented by the holders, that acceptance was not to them refused, or that these things were not done in time by them.” We are to observe, that before this motion was. made, all the evidence had been, in fact, gone through; that it was all stated by the defendant, in his motion to the court to instruct; and that he stated it to be all the evidence in the cause: and though this cannot be noticed in order to give the exceptions the effect of a demurrer to evidence, yet it may be noticed, in order to understand the opinion of the court, and to estimate its effect upon the cause. The court, then, having all the evidence before it, when it declared, that the protest being regular upon its face, parol evidence was-not admissible to prove that it was not made in the manner stated therein, we may, I think, fairly construe this with reference to the particular proofs stated, thus — The notary, in his protest, says, that he exhibited the original bill of exchange to a clerk in the counting house of Gordon the drawee and demanded acceptance thereof, and received for answer, that the bill would not be accepted &c. Here is a positive statement of the notary, that the bill was protested on his own personal presentation. Then comes the deposition of his clerk, who says, that he presented the bill to a clerk in Gordon’s counting house who refused acceptance, and that upon this (the clerk’s) presentation, the protest was made. The court having these two proofs before it, although it uses a very general phrase, may be understood to say, the notary certifies that he protested on his personal presentation ; and the deposition of his clerk that the protest was on his presentment, shall not be received to contradict this. Although we may think that these expressions of the court, taken alone, are too. broad, yet when thus referred to the proofs, on which they were intended to bear, they are not incorrect; and that they were meant in this restricted sense, is the more probable, when we look at *the conclusion, by which the court gave leave to the defendant to prove by legal evidence of any sort, that the bill was not presented by the holders, that acceptance was not refused, or that these things were not done in time. Surely, no injury could result to the defendant from the instruction ; because, having stated all his evidence, we cannot presume he had any more; and because, if he had had more, he might, under the latter part of the opinion, have introduced it.

The question upon the fourth instruction asked for the defendant, and on the opinion of the court on the point, depends on the construction and effect, or rather the application to this case, of the 4th section of our statute concerning sterling debts and foreign bills of exchange. If that provision of the statute applies to a bill drawn and indorsed for the accommodation of the drawers in Virginia, for the purpose of being sold in New York, and actually sold there, the circuit court was wrong; if the statute does not apply to such a case, the circuit court was right. Booking back to the origin of, this statute, I find that it was first enacted in 1755 ( 6 Hen. stat. at large, p. 479), and that it has been continued in all our revisáis since, exactly in its original form. In Proudfit v. Murray, 1 Call 404, Pendleton, P., commenting on this provision, says — “When the act of 1748 passed, the execution on all sterling judgments was to be levied in current money at 25 per ■cent, for difference of exchange; which was found to be inconvenient from the fluctuating state of exchange; and therefore by the act of 1755, the courts were empowered to settle the rate of exchange at the time of giving judgment, and in order to ■enable them to distinguish bills bought at a low exchange, knowing they would be protested (then too frequent in practice), from such as were drawn in the ordinary course of business at the current exchange, the law required, that in all bills drawn for current money debts, or for current money *paid for them, the sum of money paid or allowed should be •expressed in the bill; or in default thereof, the sum of money expressed in such bill should be taken as current money, and judgment entered accordingly.” It may be remarked, in the first place, that this statute inflicts a penalty, and does not therefore call for a liberal construction; if the sum in current money paid or allowed for the bill be not expressed on its face, the holder forfeits the difference between sterling money and currency. But let us look at this law, first in its letter, then in its ■spirit, and see whether this bill of exchange ■be embraced by either. “In all foreign bills of exchange given for any debt due in ■current money of this commonwealth, or for current money advanced and paid for such bills;” was this bill given for any •debt due in current money of this commonwealth? In Price v. Campbell, 2 Call 123, Carrington, J., said, it was the usual course ■of business in that dajr, for the debtor to draw a bill of exchange payable to his creditor, and get it guarantied by an indorser; a course, no doubt, growing out of the ■state of the country, and of our relations with England, where all our produce was disposed of and our funds deposited. Did the bill before us spring from this source? No, for we are told it was made and indorsed for the purpose of being sold in New York. It was given, then, for no debt due in the current money of this commonwealth. Was it given for current money of this commonwealth advanced and paid? Assuredly not; for it was made to be sold, and was ■actually sold, in New York. How then could that part of the law be complied with, which directs, that the sum in current money which was paid or allowed for the bill, shall be mentioned and expressed in it? The bill then is clearly not within the letter of the statute. It is quite as clear to my mind, that it is not within its spirit. What was the object of this law? Judge Pendleton tells us, it was to enable the courts, *when settling the rate of exchange on judgments, to distinguish between bills bought at a low exchange, and such as were drawn in the •ordinary course of business at the current exchange. However this may be, or whatever was the particular object of the legislature, it is evident from every part of the act, and indeed from the very nature of legislation, that the sphere of its operation was limited to this commonwealth. The legislature never dreamed of regulating the trade in bills of exchange, which should be carried on in other countries or states. If the drawer and indorsers, being in New York, had there drawn this bill on Diver-pool, and there sold it, it would hardly be contended, that, because they were citizens of Virginia, it came within our law. And yet, I insist, that if such had been the case, if the bill had been drawn, indorsed and sold there, the transaction could not have been more completely beyond the operation of our law, more entirely a New York negotiation, and a New York bill, than it is now. I ground this upon the legal proposition, that an accommodation bill, as this was, is mere waste paper until it is passed to some real holder for a valuable consideration. This is so well established, that it may seem superfluous to cite cases in its support; yet I will call to my aid one or two. In Downs v. Richardson, 5 Barn. & Ald. 674, 7 Eng. C. E. Rep. 227, a bill of exchange was drawn, accepted and indorsed, ail for accommodation; it was also properly stamped; but before it was passed away for value, the date was changed: and the question was, whether this had not made it a new bill and rendered a new stamp necessary? All the judges agreed, that if it could be considered a bill at all, before the change of date, a new stamp was necessary ; but they were equally clear, that it was no bill till negotiated. Abbott, C. J., said, “that until negotiated, it was an unavailable instrument; and that it first became a bill of *exchange, when it was issued for a valuable consideration.” Bayley, J., said, “if an alteration be made before a bill is issued, a fresh stamp is not necessary. Then, when is a bill issued? I am of opinion, that it is issued as soon as there is some person who can make a valid claim upon it; but if it remains in the hands of the original drawer, even with names upon it, under such circumstances as that he cannot have a legal claim upon those persons; it is not issued.” Holroyd, J., compared it to a bond before delivery. But although this, as a general legal proposition, be admitted, it is supposed, that though this bill was made and indorsed to be sold in New York, and was actually sold there, yet that it was a Virginia bill, and within our law, because the bill is dated “Petersburg, Virginia,” and says “for value in current money here received.” The first answer to this is that the date of the bill, like the signing and indorsing, is mere preparation; it is no bill merely because it is dated; and as to the words “for value received here,” we know that they do not state the fact; there was no value received at Petersburg, but only in New York on the sale there. But the case of the Marietta Bank v. Pindall, 2 Rand. 465, is a conclusive answer: there, the note was dated at Clarksburg, and was admitted to have been executed and indorsed in Virginia; yet, as it was negotiated in Ohio, this court pronounced it an Ohio transaction, and subject to the laws of Ohio.

The cases cited by my brother Brocken-brough are also strong to prove, that, as a general rule, the law of the place of contract must govern. I will add one to those cases; Van Reimsdyk v. Kane, 1 Gallison 375, where it is laid down (backed by numerous authorities) as the settled rule, that the law of the place where a contract is made is to govern, as to the nature, validity and construction of such contract.

*CABELL, J.

I think that the circuit court erred on the second point stated in the bill of exceptions. The question involved in the instruction moved for, was not an abstract one. It was applicable to the case made by the evidence, and necessarily arose in the cause; for the protest exhibited by the plaintiff, as proof of the presentment and dishonour of the bill, expressly states that the presentment was made to a clerk in the counting house of the drawee, and that he refused to accept it: and it is perfectly clear, that n'o presentment will justify the protest of a bill, unless it be made to the drawee, or to his authorized agent. The defendant, therefore, was entitled to an instruction, that such a presentment was not sufficient to justify a protest, unless the clerk was authorized to accept or refuse. But the court declined giving any opinion on-the point submitted to it, but proceeded to give an opinion on a point not submitted by either party. I do not deem it necessary to inquire, whether this opinion given by the court was correct or not; for however that may be, the court ought to have given its opinion upon the point which it was asked.

Then as to the third instruction ; I shall consider the instruction which the court gave, before I proceed to consider that ' which it refused. The instruction given, as I understand it, denies to the defendant the right to controvert the truth of the facts stated in the protest. The court, it is true, admitted that it was competent to the defendant to prove that the bill was not presented by the holders, that acceptance was not refused to them, or that these things were not done in proper time by them. But it is manifest to my mind, that the court was studiously drawing a distinction between those things which may have been done by or to the holders, previous to the protest, and those things which are stated by the notary, in the protest; and that the court intended to say, that while the former might be controverted, *the latter were incontrovertible. This opinion, as to the inadmissibility of testimony to disprove facts stated in a protest, is, I think, entirely erroneous. I readily admit, that the mere exhibition of a protest, under a notarial seal, is evidence, not only of the fact of the protest, but of the facts which it states in relation to the dishonour of the bill: but it is prima facie evidence only, liable, like all other prima facie testimony, to be rebutted or controverted by other evidence. The idea, that it cannot be contradicted, is not supported by even a dictum in any of the books that I have had access to. The case decided by lord Holt, 12 Mod. 345, is the foundation of the doctrine that a protest proves itself. In that case the plaintiff having, in order to prove a protest, produced an instrument attested by a notary public, the defendant insisted that he should prove this instrument, or at least give some account how he came by it: lord Holt held it unnecessary, because it would destroy commerce and public transactions, of this nature. The extent of this decision, and of those founded on it, is, that the plaintiff shall not be obliged to produce other testimony than that afforded by the protest itself. But not a word is said as to the inadmissibility of disproving it by opposing testimony. The interests of commerce do require such a rule as that laid down by lord Holt; but it would be monstrous, that a notary who may have actually received payment of a bill, and pocketed the money, should, by protesting it as unpaid, put it otit of the power of the drawer to prove the fact of payment, and thus compel him to pay it again to the holder. I think, therefore, that the court erred in the instruction which was given on his subject. I think it equally clear, that it erred in declining to give the instruction moved for as to the insufficiency of a presentment and demand of acceptance or payment by a clerk, to justify a protest by the notary. * Justice Buller clearly expressed this opinion in Leftley v. Mills; and although that opinion was extrajudicial, yet the extrajudicial opinion of such a judge on such a subject, is, in the absence of any judicial opinion to the contrary, entitled to very great weight. But I think the opinion is supported by good reason. We may give full credit to the statement of facts made by a notary, as the foundation of a protest, when we know that ne is an officer selected and duly appointed for the purpose, and that he is required to found his statements on .his own knowledge. But such credit ought not, and would not, be given to his statements, if it be admitted that he may make those statements, not on his own knowledge, but on the confidence reposed by him in the statements of others, vested with no legal authority, and acting under no sense of official responsibility. To subject men to the consequences of protests thus carelessly made, would greatly lessen the disposition to deal in bills of exchange, and consequently would do great injury to commerce. If such a custom as that stated in the record exists at Liverpool, I think it is against law, and ought not to be tolerated. I am therefore of opinion, that the court erred in declining to give the third instruction.

As to the fourth instruction: after much consideration, I came to the opinion (in which, I own, I had no little confidence) that the court acted correctly in refusing the instructior moved for, and in giving that which was given. But I have since been convinced, by the strong views which the president has taken of this subject, that the court erred in both respects; and I now declare my entire concurrence in the opinion which he has prepared and will deliver on this branch of the cause.

I am of opinion, that the judgment be reversed, and the cause sent back for a new trial, on which the court is to avoid the errors committed on the former trial.

*BROOKE, J.

The declaration in all three of the counts, alleges, that the bill of exchange was drawn by Kelson & Minge at Petersburg in Virginia, indorsed there by Dunlop & Orgain to Clarke, and indorsed there by Clarke to the plaintiff Fotterall. There is no allegation of protest in any of them. The first and second counts claim fifteen per cent, damages under the statute of Virginia: the third claims only the ^500. sterling money for which the bill was drawn, without damages. The jury found a verdict for the plaintiff 2777 dollars 77 cents, with interest on 2222 dollars 22 cents &c. and the court gave, the plaintiff judgment according to the verdict. In this state of the case, looking to the pleadings as laying the foundation of the action, the bill of exchange was clearly a Virginia bill, and the case was within the 4th section of the statute concerning sterling debts and foreign bills of exchange, which provides, that the sum expressed on the face of such a bill shall be taken to be current money, unless the current money paid and advanced for the same be expressed. If the plaintiff meant to rely on proof, that the bill, though drawn and indorsed at Petersburg in Virginia, was consummated by the sale of it to him in New York (as appears by the evidence stated in the bill of exceptions) he should have alleged it in his declaration: he should have declared, that it was an accommodation bill, for which nothing was paid by either of the parties at Petersburg, and that it was first negotiated, first passed away for valuable consideration paid by him, in New York. But, by the plaintiff’s own shewing in his declaration, and by the face of the bill itself, it was a Virginia bill drawn for value received at Petersburg, and not an accommodation bill made to be sold and actually sold at New York; and fifteen per cent, damages are accordingly claimed upon it, under the statute of Virginia. The cause was tried on the general issue pleaded to the declaration. I do not think that the defendant’s '^admissions at the trial changed the issue, so as to let in proof, that the bill was an accommodation bill, returned from Liverpool under regular protest; thereby wholly disregarding the pleadings, and converting the plaintiff’s demand into a claim upon a bill subject to the laws of New York instead of the laws of Virginia. There is no protest alleged in the declaration, without which the damages demanded under the statute of Virginia, were not demandable. I think the fourth instruction given by the circuit court to the jury, that this was to be regarded as a New York bill, though it was counted on in the declaration as a Virginia bill, and damages demanded upon it under the statute of Virginia, was erroneous. Therefore, I am of opinion that the judgment should be reversed, the verdict set aside, and the cause remanded for a new trial.

TUCKIOR, P.

I am of opinion, that there is no error in the first instruction of the circuit court. I concur in the opinion of my brother Cabell upon the second.

With respect to the third instruction, I am satisfied, from an examination of- the authorities, that though the protest of a foreign bill of exchange proves itself, if it be under a notarial seal, yet it is only prima facie evidence that the bill was not accepted, or if accepted not paid, and it may be contradicted as to those facts by proof on the other side. If this be so, then the instruction of the court to the jury, that parol evidence was not admissible to prove that the protest was not made in the manner stated therein, was not correct, since parol evidence might be introduced to disprove the allegation of presentment for acceptance, and refusal, set forth in the protest. This instruction, moreover, seems to me to have been gratuitous, since it is not responsive to the instruction asked for. Of the propriety of the instruction asked, I am by no means satisfied, notwithstanding the dictum of Buller, J., in Leftley v. Mills. It *is proved in this, case, that there is a custom at Liverpool, that bills may be demanded by a notary’s clerk. I do not see why this may not be, at least, with this obvious qualification, that though the notary’s authorized clerk may present the bill for. acceptance, and though the refusal to pay him upon demand may justify a protest by the notary, yet the notary’s certificate is, in such case, no evidence whatever of the facts of presentment and refusal, but they must be proved by the oaths of witnesses as other facts are. Therefore, I am of opinion on this point, that though the instruction asked for ought not to have been given, the court was wrong in giving that which it undertook gratuitously to give-.

I am also of opinion, that the fourth instruction was erroneous, the bill of exchange in this case being, in mv opinion, a. Virginia bill. I concede, without hesitation, that a bill of exchange, or accommodation note, drawn and indorsed for the purpose of being sent into the market and sold, is not a complete and subsisting contract or security until negotiated for valuable consideration. It then for the first time assumes the character of an agreement, and until then it has been looked upon, in some regards, as nothing more than a blank piece of paper. But it is obvious, that this principle is to be received with some qualification. For though no proposition for a contract is, until it be accepted, of any force or validity, yet as soon as it is accepted and springs into existence, we look, back to the circumstances under which the offer was made, to ascertain its true meaning and construction. Thus, if a proposition for a contract be made by a party resident in Virginia, that proposition must be considered as made with reference to Virginia law, unless the contrary appears ; and if, being so made, it be accepted, it must be considered as accepted.in the sense and spirit in which it was made,-unless the contrary appears. And so with respect to a bill of exchange drawn in Virginia ; if it *has clear reference to Virginia law or Virginia currency, if it bears the stamp of a Virginia bill, and be afterwards sold even in another state, the purchaser must be held to take it as he finds it. And though it is not an available security until the negotiation, yet when the negotiation has taken place, it is a contract on the one part to sell, and on the other part to buy, a Virginia bill. Each party has a right to look to the law of Virginia as governing his engagement; the drawer looks to it to determine the extent of his obligation, and every successive holder, however remote, looks to it for his damages and costs. It is not then asserted, that the bill is an available security before negotiation, but that, by the purchase, the buyer assents to take it according to the character stamped upon its face. And it . is obvious, that every successive holder must look to the face of the bill, as evincing its character, and the nature of the responsibilities upon it. So too, with respect to the other principle, so much insisted upon, and so entirely uncontroverted; that, as a general rule, the lex loci contractus furnishes the law of the contract. Yet, where the contract is made with reference to the law of another place, the latter governs, and not the former. If, therefore, the contract, in this case, was made with reference to the law of Virginia, that law must govern, and it must be treated as a Virginia contract. If the bill offered for sale had the stamp and character of a Virginia bill, and was bought, no matter where, under that character, it must be considered as a Virginia contract, with all the consequences attached to it as such.

Now what is the case here? The bill is drawn at Petersburg, Virginia. The drawer was resident there, as were the accommodation indorsers. It was drawn for ¿500,- sterling, “for value received in current money here;” that is, in Virginia currency; and in that form it was sent abroad to be sold. It went into the market, with these distinctive marks of being a Virginia transaction. *It was negotiated and purchased by Potter-all, with that character stamped upon it. Nay more, it was again indorsed by him and passed into the hands of his Liverpool correspondents. What was its character in their hands? Was it a Virginia bill, which would entitle them to damages under our statute, or was it a New York bill as to the drawer, though there was not upon its face one single characteristic of a New York contract? Whether it be competent to the parties to a bill, to give to it this protean character, to bind the drawer by the New York law to one holder, and by the Virginia law to another, or whether it be competent to deny the character stamped upon the bill, and surprize the holder by proof that the contract was not consummated where the bill purported to be drawn, — are questions which I must leave to be settled by those more versed than I am in the mystery of commercial law. But until my' reason is further enlightened on the subject, I must take it, that whatever commercial paper (above all other) purports to be on its face, it must be taken to be in its essence.

It cannot be denied, I presume, that the Virginia drawer had a right to confine his liability to the law of Virginia, the place of his residence, with whose regulations in relation to bills he was familiar. Suppose this wag his design, in what other manner could it have been expressed on the face of the bill more decisively than by dating the bill here, and setting forth that it was for value received in Virginia currency? If, then, we still treat it as a New York bill, we, in effect, deny that a bill negotiated in New York can be drawn with such a reference to the 'law of Virginia, as to m.ake it subject to that law. This cannot be; and we must, therefore, take it that the drawer designed to bind himself by the law of Virginia;

In this light, indeed, the plaintiff in the cause seems himself to have considered it. He has declared upon *it as a Virginia contract. He sets it forth as a bill drawn at Petersburg, and there is not an information, from the commencement to the close, that the contract was made elsewhere. Nay more, in two of his counts he demands damages of fifteen per cent, “according to the statute in such case made and provided;” thus distinctly referring to the statute law of Virginia as governing the contract. Under this declaration, he was not entitled to allege, that the bill was not within the influence of the Virginia law. He invoked it to entitle himself to damages, and he must abide by the penalties it imposes for the irregularity of the instrument. The court was asked to instruct the jury, that if the plaintiff was entitled to recover, his recovery must be limited to the nominal amount of the bill This instruction should have been given; for the declaration, and the bill, both shewed a Virginia contract, and the bill bore upon its face the defect, which by law furnished an insuprable barrier to his recovering more.

It was said, however, that this bill ought not to be visited with the penalties of the law, because the drawer at Petersburg could not know for what sum the bill would sell, and could not, therefore, insert the true sum in the bill. But if this argument is of any force, it will apply to cases which must unquestionably be within the law. Thus, if a bill be drawn at Lynch-burg, to be sold at Richmond, the same difficulty would exist as to the Lynchburg merchant. Yet, assuredly, it will not be said, in the teeth of the statute, that if this bill had been so drawn it would not have been within the statute — unless we essay to repeal the statute. If then this case be not within the statute, it can only be because it is a New York transaction; a position which I have already endeavoured to controvert.

Again, it was said, that the New York purchaser was deceived. By no means. As a dealer in bills he ought to have known, and doubtless did know, our law; and if he did not, he should have refused to negotiate the *bill, or have insisted on its character being changed. Had the bill been actually first sold in Virginia, and then sold to him, it would have been confessedly within the law, and he would have been as liable to be deceived as in the present case. Yet there can be no doubt he would have been forced to submit to the penalty, and to take his judgment for currency only. That is all I think him entitled to, under the law in this case.

In this view of the case, it is scarcely necessary to add, that there must have been a new trial directed, for the excess of damages given by the verdict. This has arisen from adding damages for the protest. But such damages cannot be recovered, unless the protest is set forth in the declaration; and this is not done in either of the counts. In England, indeed, the omission to set out the protest is but matter of special demurrer; and so, I presume, it is here. But though the declaration may be substantially good without it, it by no means follows, that it will entitle the party to recover damages, unless he sets forth that protest, which by our statute is an essential prerequisite to entitle him to them.

Therefore, I am of opinion, that the judgment should be reversed, and .the cause remanded for a new trial.

The judgment entered was, that this court "is of opinion, that the judgment is erroneous: therefore, it is considered that the same be reversed and annulled, ’ ’ with costs to the plaintiff in error: "and it is ordered, that the verdict be set aside, and the cause remanded to the circuit superiour court of Petersburg for a new trial to be had therein.” Thus, this court did not decide in what points the judgment of the circuit court was erroneous, nor did it give any directions to the circuit superiour court as to the instructions it should give to the jury on the questions in the cause, should they be presented on the new trial; the reason of which will appear by adverting to the several opinions of the judges on the several points.  