
    
      VEECHE vs. GRAYSON.
    
    Appeal from the court of the first district.
    If the appellee accept service of the appeal, after the return day is expired he waves his right to have it dismissed.
   Martin, J.

delivered the opinion of the court. The petition states, that the defendant and Ward, gave their joint and several note to Olivia Winchester, in the state of Kentucky—that the plaintiff has since married said Olivia, and became thus entitled to the amount of the note, &c.—that it was the intention of the parties, manifested by an endorsement, subscribed by Ward, that interest should be paid from the date—that the interest in Kentucky, is at the rate of 6 per cent.

East'n. District.

March, 1823.

Parol evidence cannot be received to prove that a note which is expressed to be paid in dollars, was to be discharged in bank notes of the bank of Kentucky.

Parol evidence may be received to establish services rendered by an attorney before a justice of the peace.

The defendant pleaded the general issue, further, that at the time of the execution of the note, and ever since, the currency and medium of exchange in Kentucky consisted of the notes of the bank of that state and its branches—that by and according to the usage and custom of trade, the notes or contracts of individuals, there made to pay money, were and are payable in said notes—that the note annexed to the petition was, and is so payable: that before the inception of the present suit, he tendered its amount, in notes of said bank, to the plaintiff which he refused, and the defendant is still ready to pay. He further pleaded a set-off.

B. Winchester proved the defendant’s signature, and that of Ward, to the note; and that of the latter to the endorsement—the plaintiff’s marriage with Olivia. The defendant, at the plaintiff’s request, attended as his counsel, on a charge of murder, before two justices of the peace, in Jefferson county, Kentucky; and in the circuit court, on an indictment for that offence. This testimony, was taken, liable to all objections.

There was judgment against the defendant for the amount of the note, with interest from the day it became payable. He appealed.

The case is presented to us on two bills of exceptions, taken by the defendant.

He offered to prove, that before, at, and ever since the execution of the note, the currency and medium of exchange, in Kentucky, where it was executed, consisted of notes of the bank of Kentucky and its branches; and that by and according to the custom and usage of trade, notes of individuals, made to pay money, were and are, payable in the above notes, unless the contract expressly provides for payment in specie—that the note sued upon, had no such provision; and on the first of February, 1822, before the inception of the present suit, the defendant tendered notes of the above bank in payment, to the plaintiff, which he refused, and still does refuse to accept. The plaintiff’s counsel opposed the testimony,and the opposition being sustained, the defendant took a bill of exceptions.

The defendant further offered to prove, that, at the plaintiff’s request, he appeared to defend him, on a charge of murder, before two justices in Kentucky, and on another prosecution for a like offence, in the circuit court, in Kentucky, and had the defendant admitted to bail—that his services in these two instances, are worth $1000. The testimony was objected to, and the objection sustained, when the defendant took a bill of exceptions.

The plaintiff moved to dismiss the appeal, as it was returnable to the first Monday of July, and was not returned, till the December term following.

By an endorsement on the back of the record, the plaintiff and appellee accepted service on the 5th of December, four days before it was filed in this court. We are of opinion, that this endorsement, dated after the return day, is evidence that the plaintiff consented, that notwithstanding the delay which had intervened, he was willing that the case should be placed on the docket of this court.

By the constitution of the United States, Congress has power to coin money and regulate the value of foreign coins—art. 1 sect. 8. It is therefore to their act we are to recur, in order to ascertain the value of the American or Spanish dollar. Parol evidence, therefore, was properly rejected to establish, that the party, who bound himself to pay nine hundred and seventy-two dollars, intended to promise to pay less than his expressions manifest, when tested by the law of the land. We therefore conclude, the court did not err in rejecting parol testimony, in this respect.

A counsel, who defends a prisoner, is not always named in the record of his trial. Indeed, he is very seldom so; and the production of such a record, in which no counsel on the part of the prisoner was mentioned, would not be even prima facie evidence, that a gentleman, who claimed the reward of his services, did not render them. Even if another attorney was named as the prisoner’s counsel, he might well urge, that he had aided in the trial, and rendered services; several counsel are often engaged, and in such a case, all are seldom named in the record.—2 Phillip's on Evidence, 77.

Peirce for the plaintiff, Livingston for the defendant.

We think the district court erred in rejecting the evidence of the alledged services.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided, and reversed; and that the case be remanded, with directions to the judge to try the cause anew, and allow parol evidence of the defendant’s services; and that the plaintiff and appellee pay the cost of this appeal.  