
    Brooke v. Young.
    December, 1824.
    Instructions — Right to Demand — Duty to Give. — Tt is tie right of the parties to demand, and the duty of t’ne Court to give instructions, to the jury, within proper limits.
    Same — Points ol Pact and Law — Duty to Give. — But, if a party asks for instructions,’ on points of fact as well as law, the Court is not bound to separate the fact from the law; but may refuse the instruction altogether.
    Bills of Exceptions-Reference to Another Bill. — It seems, that one bill of exceptions cannot be referred to, to supply an omission of a fact in another.
    Same — Case Stated Imperfectly — Effect.—Where a bill of exceptions states a case imperfectly, the cause ought to be remanded for a new trial.
    This was ah appeal from the Superior Court of Prince William County.
    Robert Young brought an action of debt, as assignee of John Carter, against Edmund Brooke, on a promissory note for $5400, payable sixty days after date. The declaration states, that the said note was executed to Carter, and endorsed by the latter, by his attorney James Anderson, to the plaintiff. The breach alledged, is in the non-payment of the note, either to the said Carter before the assignment, or to the plaintiff since the assignment.
    The defendant pleaded: 1. Nil debet. 3. That the said Carter did not assign to the plaintiff the supposed note in writing, in the declaration mentioned, in manner and form as the plaintiff had alledged. 3. That the assignment and transfer of the said note, were made without any consideration therefor, moving from the plaintiff to the said Carter.
    *To the first plea, the plaintiff replied generally; and to the two-others, he demurred specialljc The causes assigned for demurring to the second plea-are, 1. Because the said plea offers to plead specially, matter which amounted to the general issue; 3. Because the plea is, in other respects, uncertain, informal, and insufficient. .,
    The causes of demurrer to the third plea, are the same as those to the second. The defendant joined issue on the demurrers; and the Court sustained the demurrers, and over-ruled the pleas.
    A jury was impanelled to try the issue on the first plea, and rendered a verdict for the plaintiff; and the Court gave judgment accordingly.
    At the trial, the defendant filed two bills of exceptions;
    1. The first bill stated, that the plaintiff exhibited the note (which has been before described,) with the assignment of “John Carter by his attorney James Anderson:” that the execution and assignment of the said note were admitted by the defendant- and the plaintiff further exhibited a power of attorney from the said E. Brooke and John Carter to James Anderson, in which they constitute and appoint the said Anderson, their true and lawful attorney for them, and in their names “to execute, from time to time, as it may become due, a note given by the said Edmund Brooke, to which the said John Carter is. endorser, in the Merchants’ Bank of Alexandria, and to do all things lawful and requisite for effecting the premises, hereby ratifying and confirming all that our said attorney shall do therein, by virtue thereof:” that the plaintiff further proved by a witness, that the said note was discounted in the Merchants' Bank of Alexandria, for the accommodation of the defendant, and endorsed for that purpose, it being in fact a continuance, by renewals of a note discounted in July, 1815: that it was further proved, that the said Merchants’ Bank, was an unchartered institution: that the defendant introduced the deposition of Colin Auld, stating that he was the acting trustee of the late Merchants’ *Bank of Alexandria, for the collection of the debts due to it: that among the notes given up to the trustees as due to the said Bank, was one of the defendant, for the sum of $5000: that when it became due, he wrote to the defendant, requesting payment of the note, but did not receive any answer: that in the month of January last, Robert Young, the plaintiff in this suit, made application for the said note, and paid for it (principal and interest,) in Merchants’ Bank paper: that, on a former occasion, the said Young made application for the note of a person, also a debtor to the said bank, and similarly situated to the note of the defendant; when he was informed, that the trustees had agreed to receive payment from any person, of any note belonging to the said Bank, in its paper, without, however, making themselves in any manner responsible, considering the person making the payment as the agent of the debtor; and the said nore was accordingly taken up and paid for in Merchants’ Bank paper by the said Young: that when the plaintiff applied for the note of the defendant, no such conversation took place; but from the anxiety shewn by the plaintiff to obtain possession of the note, the deponent drew the inference that he expected to obtain some advantage from it: that from the account of the said Edmund Brooke, with the said Merchants’ Bank, it appears, he has credit on the 4th of May, 1816, for $300; on the 15th of June, for $99 25; and on the 23d of July, for $14; the balance due by him at that date, exclusive of the said note, being $137 63; and that no other payments were made by him, except a payment of $120, which, the deponent thought, was endorsed on the said note for $5400.
    [The deposition contains much other matter, not important to the present report.]
    The bill of exceptions also contained a deed of trust, between Peter Saunders, president, and other persons, directors of the Merchants’ Bank, (of whom, Edmund Brooke, the defendant, was one,) and Colin Auld, Thomas Swann, 109 *and Edmund J. Lee, by which the president and directors transferred to the said Auld, &c. all the property, real and personal, of the bank, and all outstanding debts, &c. in trust, that they should be authorised to secure, compound, settle, collect and receive, the monies due to the said bank, in paper of the bank, which the debtors to the institution should be allowed to pay in discharge, of their debts, &c.
    The bill of exceptions goes on to state, “and this was all the evidence in the cause. Whereupon, the defendant moved the Court to instruct the jury, that if they believed this testimony, this action could not be supported, and they should find for the defendant. But, the Court refused to give this instruction,” and the defendant excepted.
    The second bill of exceptions states, that the defendant, having exhibited the deed above mentioned, offered to the jury certain bank notes of the Merchants’ Bank of Alexandria, to the amount of the whole of the plaintiff’s claim, as a set-off. Whereupon, the counsel for the plaintiff moved the Court to instruct the jury, that these notes were not a legal set-off, unless the defendant should satisfy the jury, that he had acquired them before he received notice of the assignment to the plaintiff, of the note on which this suit was brought; which instruction, the Court accordingly gave, and the defendant excepted.
    Brooke obtained a supersedeas to the judgment of the Court.
    Stanard, for the appellant, contended:
    1. That the plaintiff had acquired possession of the note, not by purchase, but by actual payment; and the note was no longer competent to support a suit. Besides, the note was past due, when it was assigned; which subjects the assignee to all the equitable discounts and set-offs, that the maker may have had against the intermediate endorsers. Chitty on Bills, 100; Blake v. Sewell, 3 Mass. Rep.; Chitty, 231.
    !|!2. The trustees had no right to make a transfer of the note, under the limitation of their powers. It had lost the character of negotiability, by the day of payment having past.
    3. The power to Anderson, was to execute a note from time to time. This did not give him a power to endorse a note.
    4. The Bank was unchartered, and Brooke ■was one of the company. The note was transferred to the company, of whom Brooke was one. It was, therefore, a transfer by the debtor to himself; which extinguished the debt.
    5. The maker of the note had the privilege of discharging it, by setting off the notes of the Bank.
    Nicholas, for the appellee,
    contended:
    That the refusal to instruct on the first-bill of exceptions, was right. The questions related to the sufficiency of the evidence, and therefore, improper for the Court to decide. Keel et al. v. Herbert, 1 Wash. 203. Wroe v. Washington, 1 Wash. 357. Morton & Jones v. Stovall, 2 Call, 514. The appellant cannot object to the action, by motion to instruct. ITe should have demurred to the evidence. But, the action was well brought. A note with a blank endorsement may be. sold in the market, and the blank filled up after-wards. Chitty on Bills, 3 47. The conveyances does not give a limited power to the trustees. They have a general power to compound debts, &c. This was not a case of payment, but a purchase of the note. Even if it were a case of payment, the cases from Chitty prove, that a payment supra protest gives a right to sue the person, for whose benefit the payment was made. The case of the Northampton Bank v. Pepoon, 13 Mass. Rep. 238, proves, that a note past due, may be transferred. As-to the objection, that Brooke was a member of the company, it does not appear that he was. But if he was, the objection is not valid. A stockholder who becomes a ^debtor, may be sued by the Bank. As to the last bill of exceptions, it is to be inferred, that there -was notice of the assignment, before the paper of the bank was offered as a set-off. Bringing the suit was sufficient notice; and the defendant ought to have shewn, that he acquired the paper before the suit was brought.
    
      December 14.
    
      
      Instructions. — See generally, on this subject, monographic note on “Instructions” appended to Womack v. Circle. 29 G ran 192.
      Same ITu&t Be on Specific Points. — A party must ask instructions on specific points and, even when asked, the courtis not bound to instruct generally on the law of the case. As so holding, the principal case is cited in State v. Cobbs. 40 W. Va. 718 22 S. E. Rep 311. And in Kitty v. Ifitahugh. 4 Rand. 605, it is said: “In Brooke ®. Young. % Rand. 115, this court examined this subject, and assigned at some length the reasons why a party, asking- the instruction of the court to the jury, as to the law, should specify the point, and not be permitted to ask instructions generally, as to the law arising out of a complicated mass of evidence; thereby throwing it upon the court to ascertain all the points ol law which might be involved; to separate them from the facts, and decide upon them.”
    
    
      
       Same - Duty to Give. — 1To refuse relevant instructions which rightly propound the law, is error in the court below, for which the judgment must be reversed. Gordon y. City of Richmond, 83 Va. 439. 2 S. E. Rep. 727, quoting from 4 Min. Inst, part 1 (1878) p. 875, and citing the principal case in support of the proposition. -
    
    
      
      See (‡) on p. 489.
    
    
      
       Same — Points of Law and Fact — Duty to Give.— Where an instruction includes points of fact as well as law, the court may refuse to give the instruction. Peasley v. Boatwright, 2 Leigh 197, citing principal case.
      A party can only require the court to pass upon the proposition of law which he submits. He cannot by submitting an erroneous instruction impose upon the court the duty of giving a correct one. Keen v. Monroe, 75 Va. 429, citing the principal case in support of the proposition.
    
    
      
       Bills of Exception — Reference to Another Bill. — It has been repeatedly held that facts stated in one bill of exceptions cannot be noticed in considering another unless the one refer to the other, and this is true although tbefirstbill. taken duringthe progress of the trial, purports to set out all the evidence; for, although the evidence stated in the first bill might have been all when the bill was sealed, non constat important evidence was not introduced afterwards; therefore, it cannot be relied on as a complete statement of all the facts, or all the evidence on which the jury rendered their verdict. To this effect, the principal case is cited in Dishazer v. Maitland. 12Leigh 529; Washington, etc.. Tel. Co. V. Hobson, 15 Gratt. 134; McVeigh v.,Allen, 29 Gratt. 593, 594; Moore v. City of Richmond, 85 Va. 543. 8 S. E. Rep. 387; Zumbro v. Stump, 38 W. Va. 335,18 S. E. Rep. 447; Klinkler v. Wheeling Steel & Iron Co., 43 W. Va. 221, 27 S. E. Rep. 238. But this rule cannot apply in a case where the bill of exceptions, purporting to contain all the evidence is taken after the trial is over. Perkins v. Hawkins, 9 Gratt. 659, citing principal case. See principal case also cited in Pant v. Miller, 17 Gratt. 55.
      And in Hall v. Hall, 12 W. Va. 21, it is said: “It has been repeatedly decided by the court of appeals of Virginia that facts stated in one bill of exceptions cannot be noticed by an appellate court in considering another, except the first bill of exception should be referred to in the second, etc., and except also when a bill of exceptions is taken after all the evidence has been submitted to the jury, and it purports to set out ail the evidence, itseems that the evidence set out in this bill of exceptions may be looked to in considering the question raised in another bill of exceptions taken in the progress of the trial. Brooke v. Young, % Band. 106: Crawford v. Jarrett. 2 Leigh 639;• Perkins v. Hawkins. 9 Gratt. 649; Vol. 1 of Robinson (old) Prac. 346. 347.”
      Por further information on this subject.-especially as to a recent statute, see monographic note on "Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
      Same — Cause Stated imperfectly — Effect.— It has been repeatedly held that when a bill of exceptions is so indefinite as .not to show whether an instruction or evidence was proper or not, the judgment should be reversed. To this effect, the principal caséis cited in Straderv. Goff, 6 W. Va. 264; McDowell v. Crawford, 11 Gratt. 398, 399; McVeigh v. Allen, 29 Gratt. 595: foot-note to Raines v. Philips, 1 Leigh 483, containing-extract from McDowell v. Crawford, 11 Gratt. 398. But see contra, foot-note to Thompson v. Cumming. 2 Leigh 321: foot-note to Bowyer v. Chesnut. 4 Leigh 1: foot-note to Harman v. Lynchburg, «33 Gratt. 37; monographic note on, “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887, where it is shown that the later decisions sustain the rule that a bill of exceptions must clearly and distinctly point out the error complained of, otherwise the exception is unavailing: in other words, where the bill of exceptions is so uncertain that the appellate court cannot discover whether or not there has been error, the judgment of the lower court ought to be affirmed. Otherwise, a premium would be put upon carelessness, and the exceptor would be encouraged to draw his exceptions in as confused a way as possible.
    
   JUDGE CARR,

delivered the opinion of the Court.

This is an action of debt, brought by the plaintiff as assignee, on a promissory note. Upon the plea of nil debet, the plaintiff had a verdict for the amount of the note, &c. On the trial, the defendant filed two bills of exception to opinions of the Court; and on these, the cause comes up.

The first contains a statement of the evidence, consisting of the note and endorsement, (the execution of each admitted;! the power of attorney to Anderson; proof, that the Merchants’ Bank was an unchartered institution, and that the note was discounted there, for the accommodation of the defendant, and endorsed for that purpose; the deposition of Colin Auld, and the deed of assignment from the directors to certain trustees. The exception then concludes thus; “and this was all the evidence in the cause. Whereupon, the defendant moved the Court to instruct the jury, that if they believed this testimony, the action could not be supported, and they should find for the defendant.” The Court refused to give this instruction; and we are to enquire, whether correctly or not?

With respect to the abstract legal principles which govern this question, there can be little difference of opinion. To the Court, belongs the law; to the jury, the facts. This is a fundamental maxim. Frequently, the cases submitted to the jury being complicated of law and fact, their verdict involves a decision on both. Yet this is not of necessity. *Tbe jury may find a special verdict, or reserve some question of law for the decision of the Court. If not, the parties may, by a demurrer to the evidence, bring the whole law of the case before the Court; or, may move to exclude inadmissible evidence; or, for instructions to the jury as to any point of law, arising out of the facts in the case.. But here, the Court, while exercising its unquestioned privilege of declaring the law, must be very careful not to overstep the line which separates law from fact. Any assumption of a fact, as proved; any opinion as to the weight, effect or sufficiency of the evidence submitted to the jury; will be an invasion of their province. Any application tending to elicit such opinion, should be over-ruled. So, if the. counsel in the question submitted to the Court, involve fact with law, and demand the opinion of the Court on both; the motion may, without error, be over-ruled. For, though the Court might, with propriety, separate the law from the fact, stating the. legal principles and leaving the fact to the jury; there is no obligation on them to make the discrimination, and consequently, no error in refusing to answer the question propounded. I refer to the case of Smith v. Carrington, 4 Cranch, 71, in support of this last proposition. To ascertain the correctness of those which precede It, a brief review of some of the cases decided by this Court, may not be improper. 1. Of those which make it the duty of the Court to instruct as to the law arising out of the facts. In Pickett v. Morris, 2 Wash. 255, the counsel moved the Court to instruct the jury on the law arising from the facts; or by other means,, to reserve the facts for their future decision. They refused or neglected to do either; which this Court determined to be error. In Austin v. Richardson, 3 Call, 201, the Court instructed the jury, that the deed of bargain and sale was sufficient in law, to satisfy the averments in the declaration. This Court approved of this instruction, saying “it was not like the case of Keel & Herbert v. Roberts, where there was an express ’'’declaration to the jury, upon the whole evidence; for, in the present case, it was a construction of papers, and the opinion confined to a single point, without any attempt to prescribe the verdict, which the jury were to find.” In Bootright v. Meggs, 4 Munf. 145, the Court instructed the jury as to the law, arising upon a hypothetical statement of facts, in one instance; and in another, as to the law arising on an admitted fact; and this Court approved of those instructions. In Maddox v. Jackson, 4 Munf. 462, an action for a malicious prosecution, the Court instructed the jury, that the warrant for arresting the plaintiff, the endorsement thereon of a magistrate committing him for trial, and a recognizance of the same date, for his appearance, furnished sufficient evidence of probable cause to induce the prosecution; and this instruction was approved by this Court, upon the ground that it was confined to the papers, and did not exclude any evidence which the plaintiff might offer, to disprove the probable cause, inferrible from the proceedings before the magistrate; an inference, founded, on the legal presumption, that magistrates and Courts are without malice towards the accused, which presumption was considered by the Court, equivalent to a rule of law. In Wills v. Washington, 6 Munf. 592, the defendant moved the Court to instruct the jury, that 20 years having intervened between the period when the note became due, and the institution of the suit, they ought to presume it paid, unless evidence was offered of some acknowledgment or some payment of- principal or interest, within that time; the Court below refused the instruction, and this Court reversed the judgment for that error. These cases sufficiently shew, that within their proper limits, it is the right of the parties to demand, and the imperative duty of the Court to give instructions to the jury.

Equally numerous and strong are the cases, to evince the jealous care, with which this Court watches over and protects, the legitimate powers of the jury. In Ross v. Gill, *1 Wash. 87, it is said, “If the Court admit improper evidence, an exception may be taken; but if the question depend on the weight of testimony, the jury, and not the Court, are exclusively and uncontrolably the judges.” In Thweat & Hinton v. Finch, 1 Wash. 217, the same language is held. In Keel & Roberts v. Herbert, 1 Wash. 203, the Court below instructed the jury, that the plaintiff’s evidence was good and sufficient in law, to maintain the issue on his part. This Court say, “The District Court most certainly did wrong, in directing the jury that the evidence was sufficient to maintain the issue. This was a question which belonged exclusively to the jury, and ought to have been left with them, without any such declaration or direction, unless the Court, (by a demurrer to the evidence having been filed,) had been compelled to decide upon it.” The same doctrines are held in Wroe v. Washington, 1 Wash. 257; Martin, &c. v. Stover, 2 Call, 514; Fisher’s ex’r. v. Duncan, 1 Hen. & Munf. 563; Crabtree v. Horton, 4 Munf. 59; Fowler v. Lee, 4 Munf. 373; Whitacre v. M'Ilhany, 4 Munf. 310; Bogle, &c. v. Sullivant, 1 Call, 561. Having thus ascertained the correctness of the principles first stated, let us examine their bearing upon the case before us.

The mass of evidence, submitted to the Court by the bill of exceptions, was voluminous; consisting both of written and parol evidence, and involving several distinct questions. As 1. Was the transaction between Young & Auld, a transfer and assignment of the note, or a payment? 2. Were the persons executing the deed of trust, directors; and had they power to convey? 3. If they had power, does the deed authorise the trustees to transfer the notes of debtors, so as to vest the legal title in the assignee? 4. If the trustees were authorised to transfer, had Colin Auld (a single trustee,) such authority? 5. Was the defendant Brooke a stockholder or partner in the banking association, during the time that the Bank was in possession of his note? This analysis of the evidence will shew *at once, the impropriety of the course pursued. The first, second, fourth and fifth, of these questions, are merely questions of fact, depending on the weight and effect of the evidence, and belonging wholly to the jury. The third, is a question proper for the Court, depending on the legal effect of the deed. But, they were all blended and confounded with each other, in the instruction asked of the Court; and therefore, the motion was properly over-ruled. There is the soundest reason for requiring, that a party who asks the instruction of the Court, should specify the point of law on which he wishes it. It brings distinctly before the Court and the opposite party, the very objection insisted on; and there can be no mistake, omission or surprise. But, if it were permitted to a party, to ask instructions generally as to the law arising out of a great mass of evidence, and it were the duty of the Court thereupon, to ascertain all the points of law which might arise; to separate them from the facts and decide them; it would have a strong tendency to entrap both the Court and the opposite party. Tn the hurry and confusion of a jury trial, the Court might well overlook one or more of the points of law, arising out of the facts; an over-sight, which might involve a reversal of its judgment. The other party too, if the precise objection were pointed out, might have it in his power immediately to obviate it by further evidence; but, not seeing at once the points which lie buried in the mass of testimony, the opportunity of advancing these additional proofs is lost to him. Upon this reasoning, 1 presume it is, that Courts will not take upon them the office of separating the law from the facts; but require of the party who asks their instruction, to put to them a precise question of law, as arising out of the facts. Nor can this be considered a hardship on him. If he wishes to bring the whole evidence before the Court, for their opinion, he may either procure a special verdict or demur to the evidence. But, a bill of exceptions can never be converted into a demurrer to evidence. Wroe *v. Washington, 1 Wash. 361; and other cases in this Court. 1 conclude, that the Court committed no error in refusing the instructions asked in the first bill of exceptions.

W e come now to the second bill of exceptions. It is in these words: “On the trial of this cause, the defendant, having exhibited the deed between P. Saunders and others, and Colin Auld and others, referred to in the former bill of exceptions, “this indenture,” &c. offered to the jury certain bank notes of the Merchants’ Bank of Alexandria, to the amount of the whole of the plaintiff’s claim, as a set-off in the present action. Whereupon, the counsel for the plaintiff moved the Court ,to instruct the jury, that these notes were not a legal set-off, unless the defendant should satisfy the jury, that he had acquired them before he received notice of the assignment to the plaintiff, of the note on which this suit was brought; which instruction the Court accordingly gave, and thereto the defendant excepted,” &c. Upon this bill, the first question which presents itself, is; whether the statement of facts is not too imperfect, to enable this Court to form an opinion. From the defendant’s setting out, in the exception, the deed executed by the directors to the trustees, it is clear, that he claimed the right of off-setting the notes of the bank, under the terms of that deed; and, we should have no difficuty in deciding that he had a right to the set-off, if it appeared that the plaintiff claimed to hold the note on which he sued, under the bank, and through the same deed. This would sufficiently appear, if we might resort to the evidence contained in the first bill of exceptions; and this, it seemed to me, we might do, in this particular case, as the bill stated it to be all the evidence in the cause. But, the other Judges have thought it safest to confine our view to the exception immediately before us; because, we ought to act by general rules; because, although the evidence stated in the first bill might be all, when it was sealed, there might be other important facts *brought forward afterwards; and because, by thus supplying the defects of one exception from another, we may shut out evidence material for the other party, not noticed in either bill. In this opinion of my brethren, I cheerfully acquiesce. Confining ourselves to the second bill, it does not appear whether the plaintiff claimed under the deed or not. Yet this decisive fact must have appeared one way or the-other, on the trial, and is necessary to enable us to decide.

The exception, therefore, is too imperfect; and, following the authority of Barrett v. Tazewell, 1 Call, 215; Beattie v. Tabb’s adm’r. 2 Munf. 254; Fowler v. Lee, 4 Munf. 373, and other cases, the judgment of the Court below must, on that ground, be reversed, the verdict set aside, and the cause remanded for a new trial. 
      
      Judges Brooke and Coalter, absent.
     