
    *McVeigh & al v. Allen.
    November Term, 1877,
    Richmond.
    Absent, MoNCurB, P.
    1. Bill» of Exception.- — Instruct ions. — Where it does not appear that all the evidence given on the issue joined is stated in the bill of exceptions, an instruction to the jury that if they believe certain facts stated they must find for the plaintiff, the appellate court must reverse the judgment, on the ground that the facts are too imperfectly stated to enable the court to decide whether or not the instruction is correct.
    2. Negotiable Paper — Notice to Endorser— Exe’u.ses.- — In an action against the accommodation endorser of a negotiable note, the fact that the endorser resided at the time in Alexandria, where the notes were discounted, and before the note became due he went into the Confederate lines, and was there when the note was protested,. and at the time of such protest he had no known agent in Alexandria to receive notice of the dishonor of the note, is not o£ itself sufficient to render the endorser liable.
    3. Same — Same—Same.—And in such case, the fact that the endorser had a residence in Alexandria at the time the note was protested, and that a written notice of said protest was left at his residence is not sufficient to render the endorser liable.
    4. Same — Accommodation Endorser — Liability to Purchaser after Maturity. — In such a case, the plaintiff having purchased the note after maturity and dishonor, by purchase at a sale of the effects of the banlc which had discounted it, he is not thereby prevented from recovering from the endorser the whole amount of the note, though he paid for it much less than its nominal amount.
    This was an. action of debt in the corporation court of Alexandria, brought by Richard 5. Allen against James H. McVeigh & Co., as makers, and William N. McVeigh as endorser of two negotiable notes, one of them for *$3,502.50 and the other for $1,502.50, both of them dated at Alexandria, 31st May, 1861, and payable in sixty days at the branch of the exchange bank at Alexandria.
    The defendants appeared and pleaded nil debit; and there was a verdict and judgment for the plaintiff against both the defendants.
    On the trial, the defendants took two exceptions to rulings of the court on the trial of the cause. In the first it is stated that the plaintiff offered in evidence the notes and certificates of protest. These are embodied in the bill; and in each of the certificates of the notary it is stated on the same day he delivered a notice of protest to W. N. McVeigh, by leaving it at his dwelling in the hands of his white servant, informing him that he (the said endorser) was held liable for the payment of said note. . And here the plaintiff rested.
    The defendant then, to maintain the issue on his part, proved that both of said notes were made and endorsed for the accommodation- of the makers without any value received from the makers by the endorser, and that neither the makers nor the endorser ever received any value for said notes or endorsements from the plaintiff; that R. H. Allen, the plaintiff, became the holder of said notes by purchase of them at a judicial sale of the effects of the Exchange Bank of Virginia some eighteen months ago, and gave for them at said sale seventy-five dollars. The defendants then proved that William N. McVeigh left his residence in Alexandria on the 30th May, 1861, and went within the Confederate lines, and remained there with his family throughout the war, having sent his family away to his farm in Culpeper several weeks before he himself left, and that he has never returned to Alexandria to reside since he left in May, 1861. The defendants there rested.
    *The plaintiff then, to maintain the issue on his part, offered evidence tending to prove that the notes mentioned had been discounted by the branch exchange bank of Virginia at Alexandria before their maturity; and to the introduction of this evidence, the defendants objected; but the court admitted the evidence, and the defendants excepting to this action of the court, and asking that this his bill of exceptions may be signed, sealed and enrolled, the saméis done accordingly.
    Second Bill of Exceptions.
    On the trial of this cause, the plaintiff and defendants having proved and offered evidence respectively, as stated in the first bill of exceptions, the plaintiff proved by William N. McVeigh, that when he left Alexandria on the 30th of May, he expected to be absent and remain away so long as the town was in the occupation of the Federal forces, which he supposed would continue only for a short time; that he left his dwelling open in charge of a white domestic, whom he advised to go to the country, and left also several colored servants there and the chief part of his wardrobe; that while in Richmond during the war, he voted for members of the legislature as a refugee from Alexandria.
    It was proved that the two notes were originally drawn and endorsed in blank and left with Mr. Crupper, the agent of the makers, with authority to fill them up, such authority being known to the endorser prior to the 30th of May, 1861, but when they were filled up was not shown.
    Thereupon the court, on motion of the plaintiff, gave the following instructions to the jury:
    1. If the jury believe from the evidence that the plaintiff purchased the notes sued on at a judicial sale of *the assets of the Exchange Bank of Virginia, and now holds the same as purchaser, he is entitled to maintain this suit against the maker, James H. McVeigh, and if the jury shall find the facts as stated in the second or third instructions, against the endorser, William N. McVeigh, also.
    2. If the jury believe from the evidence that William N. McVeigh, the endorser, endorsed the said notes, the dates of said endorsements being the dates of said notes; while he was a resident of the city of Alexandria, and before the'same became payable had left his said residence and gone within the Confederate lines, and was within the said Confederate lines at the time of said notes were protested, and at the time of such protest there was no known agent of said William N. McVeigh in the city of Alexandria to receive notice of the dishonor of said notes, that then they will find for the plaintiff.
    3. If the jury believe from the evidence that the endorser, William N. McVeigh, had a residence in the city of Alexandria at the time the said notes were protested, and that a written notice of said protest was left at his residence, they must find for the plaintiff.
    The defendants excepted to the granting of each of said instructions, and moved the court to instruct the jury as follows:
    1. If the notes sued on were originally made by James H. McVeigh & Son, and endorsed by William N. McVeigh for the accommodation of James H. McVeigh & Son, and without valuable consideration, and the plaintiff acquired and became the holder of the notes after their maturity and dishonor, without payment of value therefor either to James H. McVeigh & Son or to William N. McVeigh, the jury must find for the defendant.
    *2. If the facts are, as stated in the above instruction, the jury must find for the defendant, William N. McVeigh.
    3. If the plaintiff acquired notes after dishonor, the note having been accommodation paper in its origin, the plaintiff can recover of his immediate endorser only the amount actually paid by him to such endorser.
    The instructions so prayed by the defendants were each and all refused; to which action of the court the defendant also excepted.
    On the application of the defendants, this court awarded a writ of error and superse-deas.
    John Howard and S. F. Beach, for the appellants.
    H. O. Claughton, for the appellee.
    
      
       Negotiable Paper — Notice—Excuses.—See Bank of Old Dominion v. McVeigh, 29 Gratt. 546, and note.
      
    
   Staples, J.

I am of opinion, that the circuit court erred in giving the second and third instructions asked for by the plaintiff. The second instruction tells the jury that if the defendant, William N. McVeigh, went into the Confederate lines between the date and maturity of the notes in controversy, and that he left no known agent in the city of Alexandria to receive notice of the dishonor of the notes, they must find for the plaintiff.

The third instruction declares that if the defendant, William N. McVeigh, had a residence in Alexandria at the time the notes were protested, and a written notice of the protest was left at his residence, the jury must find for the plaintiff. So that under the first instruction the sole inquiry for the jury was whether the defendant had an agent in Alexandria to receive notice of the protest; and under the second, whether the defendant had a residence in that city, and whether notice of the protest was left there. *It will be observed that these instructions do not assume that certain facts, if believed by the jury, constitute sufficient notice, but that they entitle the plaintiff to a verdict. The effect of the in-instructions was, therefore, to exclude from the minds of the jury all the other testimony in the cause, and to restrict the inquiry to the particular facts set forth in the instructions. No rule of law is better settled than that which forbids a court from selecting certain detached portions of the evidence as the basis of an instruction to find for one of the parties. The jury should be left free to consider all the evidence in the cause bearing upon the issue joined, without having their attention directed to any part of it in rendering their verdict. See Hilliard on New Trials, pp. 293-4, where the cases are cited. In Fisher’s ex’or v. Duncan & Turnbull, 1 Hen. & Mun. 563, 567, it was decided by this court that an instruction which declared that from the whole testimony before them the demand of the plaintiff was not barred by the act of limitations, is erroneous, as being an infringement on the privileges of the jury, whose right it was to judge of the sufficiency of the evidence.

In Brooke v. Young, 3 Rand. 106-111, the defendant filed two bills of exception. The first, after stating the evidence adduced on the trial, concluded by saying: “And this was all the evidence in the cause. Whereupon the defendant moved the court to instruct the jury.” The second bill of exceptions, after referring to a part of the evidence offered by the defendant, proceeded to state that .the plaintiff had moved the court for an instruction “that the notes in controversy were not a legal set-off unless the defendant should satisfy the jury that he had acquired them before he received the notice of the assignment.” Which was objected to by the defendant, but given by the court. This court was of opinion, *that although the evidence stated in the first bill of exceptions might be all when it was sealed, there might be other important facts brought forward afterwards, and that it was not allowable to supply the defects of one exception from another, and thus shut out evidence material for one party not noticed in either bill. The statement of facts was therefore too imperfect to enable this court to form an opinion as to the correctness of the instruction. See also Bogle, Somerville & Co. v. Sullivant, 1 Call. 487; Crabtree v. Horton, 4 Munf. 59.

In Wash. & New Orleans Tel. Co. v. Hobson & Son, 15 Gratt. 122, 133-4, the rule laid down in Brooke v. Young was referred to and approved. Judge Daniel, in delivering the opinion of the court, said: “It (a bill of exceptions to the ruling of the court refusing to give instructions) may, and sometimes does, set out fully all the evidence of either side down to the period of the ruling of the court objected to; yet, as instructions may be and often are prayed for and given or refused before the testimony is closed, such a bill of exceptions cannot of itself merely be relied on as a complete statement of all the facts, or all the evidence on which the jury rendered their verdict. It could not be so relied on, even though in terms it should purport to be a statement of ‘all the evidence in the cause/ as was the case in Brooke v. Young, 3 Rand. 106, for the reason stated by the court in that case, that although the evidence stated in the bill might be all when it was sealed, there might be other important facts brought forward afterwards.”

These decisions would seem to be decisive of the present case. There are two bills of exceptions, but they do not profess to set forth all the evidence introduced on the trial. The first bill was taken to the opinion of the court admitting certain testimony offered by the plaintiff. The object was, of course, merely to state so much of the ’^evidence as related to the admissibility and relevancy of the testimony objected to. The second bill of exceptions was taken to the action of the court in giving plaintiff’s instructions and in refusing those asked for by defendants. It refers to a part of the evidence set out in the first bill of exceptions, but there is not a word in it from which it can be inferred it was intended as a certificate of the facts proved, or of all the evidence adduced on the trial. It may be conceded that the giving of notice, the facts being agreed, is always a question of law; but here it is impossible to say we have all the facts proved on the trial. And even if it be conceded that the notice was sufficient, it did not follow that the plaintiff was entitled to a verdict. Unless we can say positively that it is, it is impossible to sustain the instructions of the court. At all events, in the language of the court in Brooke v. Young, the statement of facts is too imperfect to' enable this court to form an opinion, and following the authority of that case and others there cited, the judgment of the court below must, on that ground, be reversed and a new trial awarded.

I am of opinion the instructions are erroneous upon another ground. Under the facts set forth in the two- bills of exception the notice left at the residence of William N. McVeigh, after the commencement of the war, was insufficient to charge him as endorser. This question was fully considered in the case of the Bank of the Old Dominion v. McVeigh, 26 Gratt. 785, and the same case more recently decided by this court. That' part of the opinion of Judge Anderson, in which a majority of this court concurred, relating to the sufficiency of the notice, equally applies to the present case. The only material difference between the two cases is, that in the former it was proved that the bank had notice of the removal of the endorser when the notice was given, *whereas, in the present case, it does not appear whether the Exchange Bank had or had not such notice. The bill of exceptions does not show, nor is it necessary to decide now whether such knowledge would work a difference. Where the holder and endorser reside near to each other in a small city like Alexandria, the jury may presume from the proximity of the parties and the frequency of their communication, and the circumstances of notoriety attending the removal, that the holder was apprised of the change of domicile. Harris v. Memphis Bank, 4 Humph. R. 519; Farmers and Merchants Bank v. Harris, 2 Humph. R. 311; Bank of Utica v. Phillips, 3 Wend. R. 408.

The instructions given by the corporation court peremptorily excluded every inquiry of the kind from the mind of the jury, confining them to the consideration of certain facts mentioned by the court as entitling the plaintiff to a verdict. I think this was manifest error.

With respect to the instructions asked for by the defendant, I think the court very properly refused them. But for the error already mentioned, the judgment must be reversed, the verdict set aside, and a new trial awarded.

Anderson and Burks, J’s, concurred in the opinion of Staples, J.

Christian, J., dissented.

The judgment was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing *and filed with the record, that the corporation court did not err in giving the first instruction asked for by the defendant in error, or in refusing to give those asked for by the plaintiff in error; but that it did err in giving the second and third instructions asked for by the said defendant in error. Therefore, it is considered that for the error aforesaid, the judgment of the said corporation court be reverse'd and annulled, and that the defendant in error pay to the plaintiffs in error their costs by them expended in the prosecution of their writ of supersedeas aforesaid here; that the verdict of the jury be set aside, and that the cause be remanded to the said corporation court for a new trial to be had therein in accordance with this judgment; which is ordered to be certified to the said corporation court of the city of Alexandria.

Judgment reversed.  