
    Proudfit v. Murray.
    [Monday, November 5th, 1798.]
    Bills of Exchange — Statutes—Case at Bar. — The act of 1718. relative to bills of exchange, did not cease until Nov. 1793, notwithstanding the act of 1792, upon that subject: Which did not repeal the act of 1748, because all the suspended acts of that session, related to the first day thereof, as well as the general suspending law, and so there was no time during the session, in which the suspended acts operated.
    Same — Current Honey — Declaration.—If the declaration state, that the bill was for current money here received, without naming the sum of current money, the plaintiff can only recover current money.
    Same — Presentment, — Quaere. — Whether the bill should be presented protested, to entitle the plaintiff lo ten per cent?
    This was an action of debt upon a bill of exchange drawn in Virginia, upon the second day of February, in the year 1793; whereby the drawer requested the drawee, to pay to the payee or his order, three hundred pounds sterling, for value in current money there received, and to place the same to account, with or without advice. The declaration stated the tenor of the bill as above ; and that the same had been protested for non-acceptance and non-payment. After which, it proceeds thus, “of all which premises the said defendant on the 395 day of , 179 , and at the ^county aforesaid had notice.” Plea nil debet, and issue. Upon the trial of the cause, the defendant filed a bill of exceptions to the Court’s opinion; which stated, 1 ‘that a question was made to the Court, by the counsel for the defendant, whether this action, which is founded on a bill of exchange,bearing date the 2d day of February, 1793, could be maintained under the act of the General Assembly, in the year 1748, entitled, &c.? and that the bourt gave it as their opinion that it might be so maintained.” Verdict* and judgment for the plaintiff for the 3001. sterling, with interest after the rate of ten per cent, per annum, to the time of the judgment; and five per centum per annum afterwards, till payment. From which judgment, Proudfit appealed to this Court.
    Warden, for the appellant.
    Took three exceptions.
    1st. That the suit is brought upon the act of Assembly passed in the year 1748, [c. 36, 6 Stat. Larg. 85,] and claims ten per cent, damages; whereas, at the time of drawing this bill, the act of 1748 was repealed ; and, of course, no action could be founded on it.
    For, by the act of the 12th of November, 1792, [c. 77, R. C. ed. 1803,] there is an express repeal of all former laws upon the subject (which included the act of 1748;) and the suspending act afterwards made on the 28th of December, 1792; [c. 29, 13 Stat. Larg. 534,] did not revive it. Because, by the act of 1789, [c. 9, 13 Stat. Larg. 8,] it is enacted, “that whensoever one law which shall have repealed another, shall be itself repealed, the former law shall not be revived, without express words to that effect. ’ ’ Therefore, the act of 1748, having been repealed for a time by that of November, 1792, was not revived by the suspension of the latter.
    2nd. That it is not shewn, in the declaration, that the bill was presented protested to the drawer; and, therefore, that the plaintiff was entitled to 10 per cent, for 18 months only. Because, the declaration only states, that the defendant 396 *had notice; and not that it was presented protested to him, as the act of Assembly requires. Of course, the plaintiff was not entitled to demand the 10 per cent, damages, for a longer time than eighteen months.
    3rd. That the bill of exchange does not state the sum in current money that was paid for it; for, the declaration only states that it was for value in current money there received; whereas, by the act of Assembly the true sum ought to be stated in the bill, or the Court can only give judgment for current money. Therefore, the real sum not having, been shewn; and the judgment, being entered for sterling instead of current money, is erroneous in that respect likewise.
    Randolph, for the appellee.
    As to the objection that the bill should have been stated to have been presented protested to the drawer; the answer is, that this exception does not appear to have been taken at the trial; and as there is a general verdict for the plaintiff, the presumption is, that it was proved to the satisfaction of the jury. Besides, it is cured by the statute of Jeofails; which aids a title defectively set forth ; and this at most, was only a defective setting out of a title, and not a defective title.
    Then as to the point relative to the repeal of the act of 1748; that .act was clearly revived by the act of the 28th of December 1792, which suspends, that of the 12th of November. The Legislature never could have intended a total repeal of all statutory, provisions relative to bills "of exchange, during the period of suspension mentioned in the act of December. The whole current of- legislation, at that time, shews the contrary.
    The case does not fall within the provisions of the act of 1789; for, the word used in the act of December is suspended and not repealed. These words differ in meaning. Repeal means total annihilation ; but suspend merely interrupts.
    397 *If there had been a special law of revivor, it would have been revived, and the same in effect is done by the law of December. It is a rule, that laws in pari materia shall be construed together; and, therefore, these two acts shall be united in construction ; and then a future operation will be given to the act of the 12th of November. Consequently, the declaration was rightly founded on the act of 1748; which was clearly resuscitated, by that of December. . .
    With respect to the point relative to the judgment being for sterling money; the exception, if it be one, should have been made at the trial-. For, if a fixed sum of current money was actually paid for it, that might have been proved, -and would have protected it as a sterling bill. So,, if it was a bill drawn for property, that also might have been proved ; and would likewise have sustained the bill. The defendant, therefore, should have taken the exception at the trial, in order that-the plaintiff-might have made these proofs; but having failed to object then, it is- now too late, after the verdict; when proof is to be presumed. Consequently, upon all the grounds taken by-the defendant’s counsel, the judgment, ■is right. .
    Marshall, in reply.
    The act of 1748 was not in force, when ■the bill-was drawn; but it had been completely repealed, by the . act of the 12th of November; and was not revived, by the suspending act, in December 1792.
    The rule of the common law with respect to the revival of repealed statutes, by the subsequent repeal of the repealing statute, was done away by the act of 1789; and the foundation of the rule at Common Law utterly abolished.
    The notion at Common Law is not that the first statute is destroyed; but merely that a temporary bar is interposed for a while, so as to prevent its operation; whereas, by our act of Assembly that principle is subverted altogether, and the idea of a bar entirely done away. So, that 398 the total extinction *of the first law is contemplated b3r the act of 1789. The subsequent repealing statute, therefore, cannot call it into existence again, without an express provision for that purpose. For, it is not like the English rule, which only destro3's the action and not the life of the statute; thus leaving a capacity in the statute to exist again, whenever a subsequent removal of the bar shall call it into operation. But here, the very life and being of the statute is annihilated; and it cannot be called into existence again, without the express direction of the Legislature declaring that it shall be revived.
    The appellee’s counsel contends though, that the act of the 12th of November was not in force when the bill was-drawn. Be it so; but still it had previously destroyed that of 1748. For nothing more was necessary, for its total destruction, than the passing of the act of November; which wrought its absolute annihilation; insomuch, that it could not again be called into operation, but by express words, to that effect, in a subsequent law; and there are none such in the suspending law.
    It is said, that it cannot be supposed that the Legislature intended to restore the Common Law; but the Legislature only speak b3r their acts: and by them this effect has been produced. Which is not greatly inconvenient, because the holder will still have his principal and charges of protest, with common interest. He only does not gain unusual interest; which is no great cause of complaint. Although the Legislature may not, .in fact, have meant what results from their acts; and may not have followed my course of reasoning on the subject; yet, that will not authorise the Court to oblige the defendant to pay money, which the law does not render him liable for. If this were a penal law merely, the Court would certainly not decide it against the appellant; but in fact, it is a penal case, so far as relates to the extraprdinary interest; for that is a penalty, in the strictest sense of the word.
    *The difference attempted between a repealing and a suspending law, will not affect the interpretation, which I have been contending for. If it was actually repealed, it was gone; and there could be no revivor, without express words. For the repealing law annihilated it and prevented a revivor by implication : of which all ideas are utterly exploded, by the act of 1789. Now no reason can be assigned, why a repealing law shall not revive, and yet, if there is a suspending law, that it shall. There never was a decision that a suspending law revives a repealed statute. Such a position is not to be found in the books, and there is no act of Assembly which says, that if a repealing law is afterwards suspended, the repealed statute shall be revived. But if there is no such decision or act of Assembly, it follows, that, if the repeal of a repealing law will not revive the repealed law, no more will suspense of the repealing law have that effect.
    Upon intention, it may be observed, that if the Legislature had meant, that a law struck but of existence should be called into life again, they would certainly have said so; especially, as the existence of the act of 1789 was known to them.
    As to the point relative to the necessity of stating, that the bill was presented protested, it has been frequently debated, but never decided. The case of Scott’s ex’rs v. Call, [1 Wash. 115,] went off upon another point, and no determination is recollected, which can form a precedent. But it seems to me, indispensably necessary, that the declaration should state it; because it is part of the plaintiff’s title, as it is on that the 10 per cent, accrues. The plaintiff, therefore, ought to set it forth as the foundation of his demand, or the Court cannot give him 10 per cent, for more than eighteen months. In the present case, however, the declaration merely says, that the defendant had notice; which will only, render him liable for common law, and not for statutory consequences: Because notice alone does not satisfy the law; the bill must be presented protested, or else 400 the *penalty will not attach. For the penalty is cumulative, and, therefore, the statute creating it, must be pursued, or else the penalty does not accrue. But by the act of Assembly no qther bills, but such as have been presented protested, are entitled to draw 10 per cent, interest. The presenting the bill protested is made á condition precedent; which must be performed, or the title does not vest. To exempt the drawer for the penalty, there is no act required upon his part; he is exempted of course, unless the payee shews his title to demand it.
    Every thing, therefore,, lies upon the part of the payee or holder of the bill; the law, which requires that the bill should be shewn protested, was made in order to prevent fraud with respect to notice, where in fact the bill ,had not been protested or negotiated.
    It was said, tha,t the jury have decided this; but that is not so; for they have only decided upon the allegations in the declaration. ' But, as it was not charged that the bilt was presented protested, it was not necessary to prove that fact upon the trial. Notice only is charged, and, therefore, that only was necessary to be proved. The jury can never be said to have found what is not made necessary to be proved.
    It is said, that it is only a defective setting out of the plaintiff’s title. But this is not correct. For, the declaration sets out a good title for one judgment though not for the other; and presenting the bill protested was of the very essence of the plaintiff’s title. With respect to the 10 per cent, the title is not even attempted to be shewn by this declaration.
    As to the point, respecting the judgment being entered for sterling, instead of current money; the bill is stated to have been for value in current money without naming the sum in current money; which the act expressly requires to be done, in order to entitle the payee of the bill to sterling. The declaration says, it was for current money without expressing the sum; and the 401 proof must *have corresponded with this allegation ; for the plaintiff could not contradict his own pleadings. The jury, therefore, can only be taken to have found the debt in the declaration, according to the terms used in it by the plaintiff himself; and suppose whatever extraneous circumstances you will, it comes to that at last; because the jury merely find that the declaration is true. Of course, the judgment should have been for current money.
    It is asked, why the defendant did not object at the trial? The answer is, that he could not; for, if the bill corresponded with the declaration, it was admissible evidence; and, there was nothing to except to, until the rendition of the judgment; when the question would first occur.
    It is not necessary to argue the point, whether the plaintiff would have been es-topped from shewing the true sum in evidence? But, if it were, I should contend he could not. For, as a verdict cannot contradict the pleadings, no more can the evidence, on which the verdict is founded. At any rate, if he intended to make such proof, he ought- to have given the defendant notice of it in his declaration by proper averments, so as to have enabled him to disprove the fact.
    
      
      BilIs of Exchange — Statutes.—For the proposition laid down in the first headnote, the principal case is cited in Allen v. Harrison, 3 Call 207, 298, 300; Nelson v. Fotterall, 7 Leigh 207.
      See monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   PENDLETON, President.

After stating the case, delivered the resolution of the Court as follows :

Dropping the objections of the blanks as wholly unimportant, the Court has considered the three which appeared to be worthy of notice.

1st. An act passed November 12th, 1792, relative to protested bills, repealing all former acts on the subject; and to commence from the passing.

The 28th of December, 1792, an act passed declaring the operation of this and many others, alike circumstanced, to be suspended until October, 1793.

*During this suspension, to wit: in February, 1793, this bill was drawn; and would, within the- saving of the new act of November, 1792, be considered as commencing in October, 17-93.

But, it is relied on, that the act of November was in force from its passage till December-28th ; and, therefore, that under the act of 1789, the law of 1748 was effectually repealed, dead and gone . for a month and sixteen, days; and, could only be revived by an express declaration of the Legislature. Because, since the act of 1789, the repeal of a repealing law does not revive the repealed law, without a dixection to that effect.

It was truly said by Mr. Marshall, that the rule in England was the reverse; a repealed law was revived by the repeal of that which had stopped its force. A rule certainly inconvenient; since old acts, long since forgotten, might be revived upon the •community; affecting their persons and property upon a legal fiction, without notice that such was the case: Which inconvenience was properly removed by the act of 1789.

But, as the inconvenience could not happen in the case of the repeal of an act passed the same session, (not gone forth among the citizens, but known only to the Legislature,) I was struck with an impression, that to such laws the Legislature never meant their rule should extend; and doubted, whether this being a repealing law, never, repealed, but suspended only for a time and yet in force, came within the letter or spirit of the act of 1789? However, we were relieved from all difficulty by recurring to the act itself, where the doubt is stated and solved.

Eor, by the 3d sect, it is enacted, “that as often as a question shall arise, whether, a law passed during any session, changes or repeals a former law passed during the same session, the same construction shall be made, as would have been made, if the act concerning election of members to the General Assembly had never been made.” [13 Stat. Larg. c. 9, p. 9.]

*The act referred to, passed in October, 1785, [c. 5, 12 Stat. Larg. 128,] contains a clause, “that all acts shall commence from their passage, unless in the act itself, another day is.appointed for its commencement.” Which law being declared to have no operation on the question, what was the rule of construction before? Why, that all laws were considered as passed on the first day of the session. According to this rule then, the original act, and that for its suspension commenced together; which puts an end to this hair-splitting discussion ; and, to the objection on this point in the cause.

2d. The second objection is founded on a supposition, that bare notice of a protest is not sufficient, but that the bill must be presented protested, to entitle the holder to damages, for more than eighteen months, from the date of the bill; which not appearing in this case to have been done, the judgment is wrong for so much damages as exceeds the eighteen months. The question about the presentation is all important, as it would interfere with the common practice of the country to rest it upon notice only; and, if it had been necessary, in this case, to decide it, we should have required a fuller Court.

But, we suppose it unnecessary. The appellant’s counsel admits, that the notice charged in the declaration, is sufficient to entitle the plaintiff to his action; and, it follows, that the question of the presentation was to be brought forth, at the trial, in order to settle the quantum of the recovery.

Therefore, since the jury have found the whole damage, without any statement of the evidence or exception as to this point from the appellant, we are to presume they had evidence of the presentation if it was necessary. On this point, then, we think there was no error. Besides, there were but fourteen months, from the date of the bill, to the commencement of the suit, 'which puts an end to the objection. 404 *3d. Ñor have we a moment’s doubt upon the third objection, but that there was error in the judgment of the Court upon the verdict, which .should have been entered for the amount in current money, and not in sterling.

When the act of 1784 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, [c. 7, 6 Stat. Larg. 479,] the Courts were empowered to settle the rate of exchange at the time of giving the judgment; and, in order to enable them to distinguish between bills bought at a low exchange, knowing that 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.

In this bill, it is expressed that it was drawn for current money received; and, the sum of that current money not mentioned. It is, therefore, clearly within the law; which is imperative, that the judgment shall be entered for current money.

On this point then, the Court is of opinion there is error. The judgment must therefore be reversed; and one entered for the 4101. 10s. (if the calculation be right) current money; with one penny damages and the costs; and, five per centum per annum, from the judgment till payment.  