
    Joseph Watson v. Wilson N. Brown and Aaron Fuller, Partners, etc.
    Under the provisions of the act of 1816, to prevent the circulation of unauthorized hank paper, demand and notice are not necessary to charge the drawers of a hill of exchange.
    A hill of exceptions should contain enough to show that the matter, wherein the court of common pleas is alleged to have erred, was material to the issue.
    This is a writ of error, directed to the court of common pleas of Montgomery county.
    The declaration contains four counts upon two bills of exchange. The plea was the general issue.
    The cause was submitted to a jury, and verdict rendered for the plaintiff below, upon which judgment was entered.
    *This writ is brought to reverse that judgment, for certain supposed errors appearing in a bill of exceptions, of which the following is a copy :
    “ Court Of Common Pleas, Montgomery county, April terra, 1843. This cause came on for trial; and, the jury being impaneled and sworn, the plaintiff, to sustain his action, offered in evidence the bills of exchange of which these are copies, and their protests:
    “ Dolls. 500. Washington Bank, Miamisburg, .July 8, .1840.
    “ Matthew T. Miller, Esq., Philadelphia, sixty days after date, pay to the order of Joseph Watson, Esq., five hundred dollars, and charge this institution.
    |500 “ Edw. D. Jones, Gash."
    
    Indorsed: .
    “ Pay to the order of C. P. Huber, July 8, 1840. Joseph Watson.
    “Pay to the order of Lewis Hásselman, July 8, 1840. C. P. Huber.
    
      “Pay to John Treon or order, July 8, 1840. Lewis Hasselman.
    “Pay to Wilson N. Brown and Aaron Fuller, partners under the firm of Wilson N. Brown & Co., July 8, 1840. John Treon
    “Wilson U. Brown & Co.”
    “ Be it known that, on the date hereof, at the request of N. Brown & Co., the holder of the original bill of exchange, of which a true copy is above written, I, Edward Hurst,' notary public for the commonwealth of Pennsylvania, by lawful authority duly commissioned and sworn, residing in the city of Philadelphia, presented the same to a clerk at the place of business of Matthew T. Miller, the drawer, and demanded the piayment, which was not obtained, and answer made that it would not be paid. I therefore duly notified the drawer and indorser *of the non-payment of the same. Thereupon, I, the said notary, at the request aforesaid, have protested, and do hereby protest, against the said drawer and indorser of the said bill, and all others concerned, for all exchange and re-exchange, costs, damages, and interests, suffered and to be suffered in want of payment thereof; thus done and protested, in the city of Philadelphia, aforesaid, the 9th day of .September, 1840. In testimonia veritatis.
    
    [l. s.] “ Edward Hurst, Notary Public.”
    
    Then follows the copy of the second bill of exchange and protest, similar in terms to the preceding :
    “To the-offering of these bills of exchange in evidence, to support the plaintiff’s cause of action, the defendants, by their counsel, objected, for all the reasons hereinafter set- forth; but the bills were permitted to go in evidence, reserving the questions of law for the charge of the court; and, the plaintiff’s testimony having closed:
    “ The defendant, by his counsel, moved the court to charge the jury:
    “ 1. That, when the consideration of any agreement is in violation of a statute, no action can be maintained upon it by either party.
    “ 2. That persons may avoid their contracts by alleging their own criminality, provided it conflicts with some positive statute of the state-.
    
      “ 3. That an action can not be sustained in the courts of a state, entered into in violation of the laws of the state.
    “ 4. That, if a penalty be annexed to the transaction, the transaction is just as much null and void as if it were positively prohibited by the statute.
    “5. That the law is the same, if the transaction be prohibited by statute, although it is not expressly declared that the contract is void.
    *“ 6. That if, from the testimony in this case, the jury are of opinion that the Washington Social Library Company, otherwise called the Washington Bank, was an unauthorized banking association, under the act of January 27,1816, and that the draft in controversy was drawn by E. L. Jones, a cashier, in the transaction of this illegal business of banking, then the transaction and making of the draft of said association was illegal, and that an action can not be sustained upon said draft.
    “7. That if, from the testimony, the jury are of opinion that ‘The Washington Bank’ was an unauthorized banking association, under the act of January 27, 1816, and that the draft in controversy was drawn by E. L. Jones, a cashier, in the transaction of this illegal business of banking, and that Joseph Watson was the payee and indorser of this draft, that this indorsement was an illegal act, which subjects him to a penalty and prevents a recovery upon the paper against him; because a person may allege his own criminality, provided it consists in some positive statute of the state.
    “8. That, if the jury are of opinion, as to the facts as stated in fourth and fifth requests to charge, then this draft is illegal and void.
    “ 9. That section 3 of the act of January 27,1816, not only renders illegal all notes issued or made by said bank for circulation, commonly known as bank notes, but every contract made as a bank.
    “ 10. That section 11 of the act of January 27,1816, insisted upon by plaintiff’s counsel, does not apply to the suit on this draft, but is a remedy confined to an action against a defendant as a stockholder, shareholder, or partner, in said bank.
    .“ 11. That, if the jury are satisfied from the pi’oofs that the Washington Bank, which appears as the drawer of these bills, was the same institution as the Washington Social Library Company or Corporation of Miamisburg, and that the said institution was, at the date of those bills, exorcising banking powers, and drew these bills by its cashier, as a bank; that then *the defendant and plaintiff, being both indorsers of the bills, were, by such indorsement, liablo to the penalties of the statute in such case provided, and engaged in an illegal act, and the plaintiff can not recover of the defendant upon the said indorsement of the defendants; that the public statute providing such penalties, and the act of incorporation of the Washington Social Library Company, being the public laws of this state, the plaintiff is presumed to have notice of the unauthorized character of such bank and the drafts drawn by it.
    “ 12. That, when a note is protested in Philadelphia, the immediate indorsers of the holder, residing in Cincinnati, and the other prior indorsors in Miamisburg, in this county; and when there is nothing proved from which it appears that the holder was ignorant of the residence of any of the indorsers; and when the due and ordinary course of mail from Philadelphia to Miamisburg, was not through or by the way of Cincinnati; it is not sufficient notice to the defendant at Miamisburg to inclose a notice for the defendant, Watson, by mail, to the immediate indorser, to forward the same notice from the holder, on the same day when received by him from defendant, by mail, from Cincinnati to Miamisburg; that the immediate indorser of the holder, on receiving notice, from the holder, of the dishonor of the bill, might himself give notice to his prior indorser, including Watson, the defendant, in order to charge them, and would be allowed one day for the service or sending of such notice, or such immediate indorser might rely on the notice from the holder at Philadelphia to Watson. But, if the immediate indorsor chose to rely on the notice from the holder at Philadelphia to Watson, that notice would only avail him, if regularly made by the holder, or notary acting for the holder, and addressed and sent directly to Watson, by the due and ordinary course of mail, from Philadelphia to Miamisburg—
    “Which said several matters of charge the court refused; but charged the jury that, notwithstanding the principles claimed, yet the plaintiffs were entitled to recover upon said draft or *bill of exchange, so offered in evidence. To which opinion the defendant excepts, and prays the court to sign and seal this, his bill of exceptions, and that it be made part of the record in this cause; and it is done accordingly.”
    Upon -which bill of exceptions the following errors were assigned :
    “1. That the said court overruled the demurrer to the second and fourth counts of the said amended declaration, when the same should have been sustained, and judgment thereon rendered for the said Joseph Watson.
    “ 2, That’the court permitted the said bill of exchange, offered in evidence by the said Wilson N. Brown & Cp., to go to the jury, when the same should have been excluded, for want of sufficient notice to the said Watson and indorser.
    “ 3. That the court refused to charge the jury, as requested, upon the several points set forth in the said bill ef exceptions; but charged that the said plaintiff was entitled to recover of the said Watson.”
    Odlin & Schenck, for plaintiff:
    We claim that, inasmuch as the association which issued these bills of exchange, was an illegal association, acting in violation of ' law, the instruments are void. Being a void, illegal transaction, a court will not lend its aid, but leave the parties as they are. 1 Saund. 306 ; Bayley v. Tabor, 5 Mass. 286 ; Wheeler v. Russell, 17 Mass. 258; Farrar v. Barton, 5 Mass. 395 ; Hall v. Mullen, 5 Har. & J. 193; 4 Dall. 298; 6 Binn. 321; 4 Serg. & R. 159; 1 Binn. 118; 4 Dali. 269.
    The evidence of protest is not sufficient. Except in some states, under their peculiar statutes, the statement of the notary *in his certificate that he made demand and gave notice, is not sufficient evidence, without stating in what manner the one was made and the other given, that the court may judge of their legality. Smith v. McManers, 7 Serg. 477; 6 Serg. & R. 484; 4 McC. 57.
    Stoddard & Haynes, for defendants:
    Paper of the description of these bills of exchange, though issued by a company, associated as an unauthorized banking association, is not void. On the contrary, the act of 1816 expressly provides for the collection of such paper, and makes all the stockholders and officers of the association liable to be sued upon it, in their individual capacity.
    The demand and notice were sufficient, and the notarial seal sufficient evidence thereof, though this was not all the evidence adduced. On this point, in addition to cases cited by plaintiff’s counsel, see Halliday v. McDougal, 20 Wend. 81; 19 Amer. Jur. 138; Triplett v. Hunt, 3 Dana, 128.
   Birchard, J.

The record shows that, after the court of common pleas overruled the demurrer to the second and fourth counts, the defendants plead issuably to the action, and.went to trial. This, according to the course of decision in this court, was a waiver of the demurrer, and disposed of the firpt cause assigned for error. The provisions of the recent statute, do not apply to cases tried in the court of common pleas prior to its taking effect. The act was not intended to, and can not have any retrospective operation.

The second assignment can not be maintained. It is no objection to a particular item of evidence, that, unsustained by other proof, it is insufficient to entitle a party to recover. If it has a tendency to support the issue, it is admissible, and should not be ruled out. The question of its sufficiency, taken in connection with all the proof in evidence to the jury, will ^remain open, to be tested on demurrer to the whole evidence on trial, by the court, or by a verdict of jury, under instructions of the court.

The third assignment presents two inquiries:

1. Did the court err in refusing to instruct the jury as requested ?

2. In giving the instruction stated in the bill of exceptions?

We will consider these in their order.

On a careful examination, the record will not be found to disclose any fact showing that the plaintiff could have been benefited by the instructions requested, if the court had complied and given them in charge, in the words proposed by counsel, or that ho has been at all prejudiced by the refusal of which he complains. For aught that appears, the thirteen propositions were entirely out of the case, and may be considered abstract propositions. The bill of exceptions docs not profess to contain all the evidenco that was submitted to the jury. It contains nothing making the instruction requested applicable to the issuo, but what appears on the face of the bills of exchange. They both purport to have boon made by the Washington Bank, at Miamisburg — an illegal association, doing business as a banking institution — in violation of the acts of 1815 and 1816. It may be admitted that the paper was sufficient to show this; but it by no means follows that tho court erred in refusing to give the instructions. The prohibitions of those statutes are against paper designed and intended to be put in circulation as money. It does not affect suits brought upon the promissory notes, bills of exchange, and other contracts executed and entered into by tho illegal association. Porter v. Pumroy et al., decided this term.

So far from making void such instruments, section 11 of the act of 1816 (Swan’s Stat. 137) imparts to them a peculiar vitality, by making all persons interested in the illegal association liable, jointly and severally, in their individual capacity, for their payment.

*And section 13 entitles the holder to recover without proof of presentment and demand of payment, at tho place where made payable.

Tho charge of the court, by implication, admits tho correctness of tho principle contained in the thirteen propositions of the plaintiff, as general propositions, and denies their application to this ease.

. As before stated, if the court were right in this, it could not help the plaintiff’s case; and if wrong, it could not have prejudiced it.

It remains to be considered whether the proof given was sufficient to justify the verdict.

The protest and proof of notice are said to have been insufficient. Admitting that the merit of the case depended entirely upon this proof, it may well be doubtocf whether there was sufficient evidence of demand and notice. Tho bill, it is true, is a foreign bill, and the more recent doctrine is, that tho notarial certificate of a foreign notary, when introduced, is evidence of tho facts stated in it. Yet, as will be seen by the cases referred to in argument, the authorities upon the point are conflicting; and I have been unable to find in the decisions of the United States court, whose decision I would regard as conclusive upon tho question, any case in which the certificate of the notary has been held sufficient, when it did not contain a statement of the facts showing tho manner and time of giving tho notice. Without, however, determining the question'whether the proof of demand and notice, according to the usages and customs of merchants, was sufficient, we are of opinion the case may be disposed of, because the evidence just’fied the instructions which were given.

All banking institutions of this state are creatures of the law. By statute, their charters are general laws, of which the courts are bound to take notice. It follows that they were bound to take notice that the Washington Bank was an unauthorized institution, and that a demand at the place where payable, was not necessary to entitle the holder to recover the amount of *these bills of exchange. Watson was the payee and first indorser. He also was bound to know that no demand was .required, and that be needed neither demand nor notice to enable him, if a bona fide holder, to collect them of the association. He had no right to expect the bills would be paid if presented, and therefore no right to claim exemption from liability for want of demand and notice.

Upon the examination of the whole record, we think there was no error in the instructions given, and none in the refusal com- . plained of. Judgment affirmed.  