
    Jackson’s Adm’x v. Hartderson &c.
    
    November, 1831.
    Appeal Bood — nisrccital—Effect— Case at Bar, — The condition of an appeal bond miarecites tile judgment appealed from, as being- for $3900, when in truth it was for $3957. but recites the judgment correctly in all other respects: Qntere, whether such misrecital renders the appeal bond naught?
    Same — Defective—Objection after Five Years — Effect. — Judgment for EL against J. in circuit court, from which J. appeals to court of appeals: circuit court requires an appeal bond, and J. gives one. which though defective is accepted by circuit court, and the appeal brought up; pending the appeal J. dies, and the appeal is revived by his adm’r; after lapse of live years from date of judgment, which is the limitation to a writ of error or supersedeas, appellee objects that the appeal bond is defective and naught, and moves that the appeal shall be dismissed, unless the appellant's adm’r shall give a good bond: Motion overruled.
    Case Agreed — Evidence Variant — Effect.—The parties to an action agree the case, by detailing the evidence, and then admitting the facts stated in the evidence; the evidence detailed is in some respects variant and conflicting: Hmej>. the court can give no judgment on such a case agreed.
    New Trial-Verdict Contrary to Evidence — Evidence Certified,  — Upon a motion to set aside a verdict, and for a new trial, on the ground that the verdict is contrary to evidence, the motion is overruled, but the circuit court refuses to certify the facts proved by the evidence, and only certifies the evidence, and that nothing appeared to impeach the credit *of any part of it; bill of exceptions states the evidence at large, which is, in some respects, variant and conflicting: Hbiyd. this bill of exceptions is not well taken, and the appellate court cannot review the judgment of the circuit court overruling the motion for a new trial.
    Same — Same—Same -Proper Remedy — Quaere.—what is the party’s remedy, in such case, when the court refuses to certify the facts proved in evi-CÍ6HC6 ?
    
    Bill of Exchange — Assmnpsit—Allegations—Proof.  — A declaration in assumpsit on a bill of exchange, by bolder against endorser, alleges that “when the bill became due and payable according to the tenor and effect thereof, to wit, on the 27th December 1816, at the bank of Marietta in Ohio” (where it was payable) it was presented for payment, and dishonoured; the 37th December was not the third but the fourth day after the time appointed for the payment of the bill: Held, that, as it was averred that the bill was presented when It became due and payable according' to its tenor and effect, and the date of the presentment was stated under a scilicet, the date so stated was not material, and the plaintiff might have proved presentment on the third day of grace.
    Same-Same — Same—Presentment on Fourth Day of Grace — Usage.—it seems, that when a bill is made payable at a place or bank, at which there is a special established usage, that bills there payable shall be presented on the fourth and not on the third day of grace, such special usage must be alleged in the declaration upon such bill, otherwise proof of presentation on the fourth day of grace is not admissible.
    Same — Same—Same—Allegations—Variance in Proof. —In assumpsit on a bill of exchange, drawn in Virginia, payable at the bank of Marietta, Ohio; the declaration counting on the general law merchant, and the general issue being joined: Heed, that as the general law merchant requires presentation on the third day of grace, proof of presentation on the fourth day of grace does not support the issue on the plaintiff’s part.
    In a suit of Henderson against Jackson, in the circuit court of Harrison, judgment was rendered against Jackson in his lifetime, for 39S7 dollars, with interest and costs; from which Jackson prayed an appeal, which was allowed him, “upon his entering into bond with sufficient surety, in the penalty of 8000 dollars, conditioned as the law directs.” An appeal bond was forthwith executed by Jackson and his surety, in open court, in the condition whereof the judgment appealed from was recited as a judgment for 3900 dollars only, omitting fifty-seven dollars; and the court, not adverting to this misrecital of the judgment in the condition, accepted the appeal bond, and the cause was brought up to this court. While the appeal was pending here, Jackson died, and the appeal was afterwards revived by his administratrix; and before the cause came on to be argued *in this court, more than five years (the limitation to a writ of error or supersedeas, 1 Rev. Code, ch. 128, g 19, p. 492,) had elapsed since the date of the judgment of the circuit court.
    And now Stanard, for the appellee,
    objected that the misrecital of the judgment in the condition of the appeal bond, rendered the bond naught, so that, if the judgment should be affirmed, the appellee could never have any remedy upon it; and, therefore, he moved, that the appeal should be dismissed, unless a good and sufficient appeal bond should now be filed, and for a rule upon the now appellant to that purpose.
    Johnson and Heigh for the appellant,
    did not admit that the defect in the appeal bond would be a fatal objection to it in an action upon it; but supposing it was so, they said the motion came too late. The bond had been accepted by the circuit court, or rather by the appellee, for he made no objection to it, and the - appeal had been so long pending here, that, if it should now be dismissed, no writ of error or superse-deas could be obtained; and the original appellant himself being dead, his adminis-tratrix certainly could not be required to execute an appeal bond, which would bind her personally, whether she had assets to pay the debt or not.
    
      
       Appeal Bonds — Objection-Waiver,—On Ibis question the principal case is cited in foot-note, to Johnston v. Syme, 3 Call 522; Pugh v. Jones. 6 Leigh 301; Va. F. &M. Ins. Go. v. N. Y. Carousal Mfg. Co., 95 Va. 517. 28 S. E. Rep. 888. See monographic note on “Appeal and Error'5 appended to Hill v. vSalem, etc., 'Turnpike Co., 1 Rob. 263.
    
    
      
       Bills of Exception — Verdict Contrary to Evidence-Certification of Evidence. — The principal case is cited in foot-note to Callaghan v. Kippers, 7Leigh 608; footnote to Taliaferro v. Franklin, 1 Gratt 332: Pat-tesonv. Ford,2Gratt. 34,andm>/te; Pryor v. Kuhn, 12 Gratt. 618; Vaiden v. Com. 12 Gratt. 724, and note; foot-note to Ewingv. Ewing, 2 Leigh 337; Giinmiv. Cullen, 20 Gratt. 450; Read v. Com., 22 Gratt. 929; Morgan v. Fleming, 24 W. Va. 192. See monographic note on “Bills of Exception’’ appended to Stoneman v. Com . 25 Gratt. 887.
    
    
      
       (Bills of Exception — Mandamus to Compel Court to Sign. — The principal ca.se is cited in Page v. Olopton, 30 Gratt. 423. where it is held that mandamus is the proper remedy to compel the court to sign a bill of exceptions. The principal case is also cited in Henry v. Davis. 13 W. Va. 248, where the same is held, See monographic note on “Bills of Exception” appended to Stoneman v. Com,, 25 Gratt. 887.
    
    
      
       Bills of Exchange -Presentment — Variance between Allegation and Proof — When Immaterial. — The principal case is cited in Taylor v. Bank of Alexandria, 5 Leigh 477.
    
    
      
       Same — Same—Custom—Pleading and Practice, — The principal case is cited in foot-note to Liggatt v. withers, 5 Gratt. 24: Hansbrough v. Neal, 94 Va. 725, 27 S. E. Rep. 593. See monographic note on ‘Bills, Notes and Checks” appended to Archer v. ward, 9 Gratt. 622.
    
   TUCKER, P.

The appellee cannot, at this late day, have a dismissal on the ground of any supposed defect in the appeal bond, nor can he, Jackson being now dead, be entitled to a rule upon the now appellant, Jackson’s administratrix, to give further security upon pain of having the appeal dismissed. The circuit court, which allowed this appeal, has certified in the record before us, that Jackson with his surety, upon the appeal being allowed, did execute such a bond as was required by the order. Admitting that the bond in the record is the bond alluded to, and that it is truly copied, the defects of that bond (if it be indeed defective, *which I do not mean to decide) were disregarded by the court, or were considered as not fatal to its validity. This defect, if such it be, was an error in the judgment of the court upon a matter vitally affecting the interests of the plaintiff Henderson, and which he ought to have promptly corrected, or to have been considered as waiving. The mode of correction was obvious, by an early motion to this court to dismiss the appeal, if the bond was not good. The appellant could take no step. He had executed such bond as the court required; bis appeal was docketed without objection, and has been now depending so long, that, if it be dismissed, there can be no writ of error or supersedeas allowed. This would, surely, be grossly unjust. It would be to permit the appellee to derive a benefit from his own acquiescence in this legal appeal, and to take from the now appellant the right of correcting the error of the in-feriottr tribunal, when neither she nor the intestate has been in any default; for the bond, in this case, was executed and prepared under the supervision of the circuit court, and of the appellee and his counsel. If, indeed, Jackson were now alive, the error, though so lately discovered, might be corrected; but as the appellee cannot now be relieved, without depriving his adminis-tratrix of her appellate rights, or requiring her to give security, which as administra-trix she is not bound to give, no step should be taken in the cause for its dismission. It ought to proceed without a new bond to a hearing ; which, fortunately, in the present instance, will not be delayed. The case of Syme v. Johnston, 3 Call 523, and the rule there established, though not exactly in point, strongly sustains the course the court thinks proper in the present case.

The cause was then heard upon the appeal.

It was an action of assumpsit brought by Alexander Henderson, for the benefit of Gilman & Ammidon, against John G- Jackson, as indorser of a bill of exchange, drawn at Clarksburg (in Harrison countjr, Virginia) on the 26th *June 1816, by Jonathan Jackson, upon Jonathan Walmesley, in favour of Jamqs M’Cally, for 5000 dollars, payable 180 days after the date, at the bank of Marietta in the state of Ohio, which was accepted by Walmesley, and then indorsed by M’Cally to the defendant John G. Jackson, and by him to the plaintiff Henderson, cashier of the bank of Marietta. The original declaration contained two special counts upon the bill, and two money counts. The defendant pleaded the general issue. And upon the trial of the cause on these pleadings, the jury found a verdict for the plaintiff ‘ ‘subject to the opinion of the court on the facts agreed by the parties.” But what was called the facts agreed, was a detailed state of all the evidence adduced by both parties (which in the opinion of the circuit court, and of this court, was variant as to some material particulars, and part of it, indeed, was objected to as incompetent) to which state of the evidence was subjoined an agreement of the parties, in these words: “The parties admit the facts in the foregoing evidence, and agree that the jury shall find a verdict for the plaintiff, subject to the opinion of the court on the said facts, reserving exceptions to the admissibility of any of the evidence aforesaid. ” The circuit court, ata subsequent term, upon a motion of the plaintiff, set aside the verdict, gave him leave to amend the declaration, and remanded the cause to the rules.

The amended declaration, besides the usual money counts, contained six special counts upon the bill alleging the dishonor thereof, and the defendant’s liability, in various ways, but all alike in two respects, 1. All the counts, — after setting out the bill of exchange, as bearing date at Clarksburg, the 26th June 1816, and drawn by Jonathan Jackson, on Jonathan Walmesley in favour of James M’Cally, for 5000 dollars, payable 180 days after date, at the bank of Marietta in Ohio, and setting out the acceptance thereof by Walmesley, the indorsement by M’Cally, the payee, to John G) Jackson, the defendant, and his indorsement to Henderson, the plaintiff, — alleged, that “afterwards, when *the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on the 27th December 1816, at the bank of Marietta in Ohio,” the bill was then and there duly presented for payment, and payment was then and there duly demanded, and the acceptor then and there failed to make payment; and 2. all the counts charged (as usual) that the defendant became liable to pay the contents of the bill, according to the usage and custom of merchants. (It will be found, upon counting the time, that the 27th December 1816 was the fourth day after the expiration of the 180 days limited in the bill for the payment of the contents.)

To this amended declaration also, the defendant pleaded the general issue. The jury found a general verdict for the plaintiff, and that for a larger sum than the court thought him entitled to; but the plaintiff releasing the excess, the court gave him judgment for the sum to which it held him entitled; namely, 3957 dollars with interest from the 27th December 1816, and costs.

The defendant, having filed five bills of exceptions, two to opinions of the court given at the trial, and three to opinions of the court on motions to set aside the ver-diet, and direct a new trial, — appealed from the judgment to this court.

1. The first bill of exceptions, stated the facts upon which the points of law submitted to the court arose, and the points of law themselves, so imperfectly and vaguely, that, in the opinion of this court, as it was impossible to decide, so it was unnecessary and improper to examine them.

2. The second bill of exceptions stated, that the plaintiff, at the trial, offered in evidence the bill of exchange in the declaration mentioned, with the acceptance, and the indorsements thereon, which were in these words: “Exchange for 5000 dollars (350 cents stamp) Clarksburg, 26th June 1816. One hundred and eighty after this first of exchange (the second of the same tenor and date unpaid) *pay 1° the order of James M’Cally, at the bank of Marietta in the state of Ohio, five thousand dollars, value received, and charge the same, with or without further advice, to account of you r obedient servant.” (Signed) Jonathan Jackson. ” (Addressed) “To Jonathan Walmesley, Clarksburg, Virginia.” (Underwritten “Accepted; Jonathan Walmesley.” (Indorsed) “Pay to John G. Jackson; J. M’Cally” — '“Pay to Alexander Henderson, cashier of the bank of Marietta; J. G. Jackson.” And the plaintiff proved, that the bill was presented at the bank of Marietta, and demand of payment made there, on the 27th December 1816. Whereupon the defendant moved the court to instruct the jury, that the said 180 days in the bill mentioned, and three days of grace, having expired before the said 27th December, the demand then made was not a good and sufficient demand of the bill, and that for want of a good and sufficient demand, the defendant was discharged from liabilitj' upon his indorsement. But the court refused to give this instruction to the jury; to which the defendant excepted.

3. The third bill of exceptions was filed to an opinion of the court, after the verdict was rendered, overruling a motion made by the defendant, to set it aside, upon the ground that it was for a larger sum than the plaintiff was entitled to, for reasons detailed in the bill of exceptions, but which it is needless to state here; for the court concurred with the defendant, and declared that it would set aside the verdict, unless the plaintiff would enter a release for the excess of the sum found by the jury, over and above the amount which the defendant contended, and the court thought, was just; and upon the plaintiff entering the release accordingly, the court overruled the defendant’s motion.

4. The fourth bill of exceptions was filed to an opinion of the court overruling another motion made by the defendant to set the verdict aside, and direct a new trial, on the ground that the verdict was contrary to the justice of the case, upon the facts proved by the evidence. This motion *being overruled, the defendant moved the court to state and certify the facts proved in evidence at the trial, which the court declined doing, otherwise than by setting out the whole evidence on both sides, and certifying that nothing appeared to impeach the credit of any of the witnesses. Accordingly, this bill of exceptions did not profess to state the facts which the circuit court thought well proved by the evidence: it detailed the whole evidence adduced by both parties at large; and that evidence was, in the judgment of this court, variant and even conflicting, as to some material points. It is only necessary to state, that among the evidence set out in this bill of exceptions, there was evidence adduced by the plaintiff, which he and his counsel, both in the circuit court and here, relied on to prove; that the defendant, with full knowledge of the circumstances touching the dishonour of the bill, and affecting his liability as indorser, had afterwards assumed the payment of the contents to Gil-man & Ammidon, the real holders of the bill, for whose benefit the suit was brought; though the appellee and his counsel, in both courts, insisted that the evidence did not prove any such assumpsit.

5. The course which the cause took in this court, rendered the fifth bill of exceptions wholly immaterial, and no notice was taken of it at the bar or by the court.

Johnson and-Leigh for the appellant, contended, 1. That the circuit court ought not to have set aside the verdict rendered at the first trial, subject to the opinion of the court on the facts agreed by the parties, but should have proceeded to judgment upon it; for, though the facts agreed by the parties consisted in a state of all the evidence adduced by them both, yet (as they endeav-oured to shew) the case and the evidence was such, that the facts, and the whole merits of the case, could no otherwise be stated, more fully, more fairly, or with more certainty, than by stating the evidence. And, therefore, they proceeded to argue the law of the case upon the facts so agreed at the first trial', *and contended, that judgment ought to have been given for the defendant, upon the conditional verdict then found. 2. They said, the fourth bill of exceptions, also (that taken to the opinion of the circuit court, overruling the motion for a new trial, made on the ground that the verdict was contrary to the justice of the case upon the evidence) presented the merits of the case fully and fairly, for examination, so that this court, reviewing the opinion of the circuit court on this point, might, in effect, determine the cause upon the merits, and put an end to the controversy at once. The circuit court, indeed, refused to cettify the facts proved by the evidence, and would only certify the evidence itself in detail, and that nothing appeared to impeach the credit of any of the witnesses; but it was justified in that course, and could only be justified, by the consideration, that the evidence was so simple and consistent throughout, that no serious contest as to any question of fact could arise. Therefore, these exceptions were well taken, according to the principle settled in Ewing v. Ewing, 2 Leigh, 337. And then, proceeding to examine the evidence set out in the fourth bill of exceptions, they contended that the plaintiff could never be entitled to a verdict. 3. They took up the case upon the second bill of exceptions, and maintained, that the circuit court erred in refusing to instruct the jury, that the 180 days appointed in the bill of exchange for the payment of the contents, and three days of grace, having expired, before the 27th December 1816, when the bill was presented at the bank of Marietta and payment demanded there, that was not a good and timely demand, and therefore the defendant was discharged from liability upon his indorsement. The instruction prayed by the defendant, propounded the general law merchant applicable to such cases, exactly and truly. And though the days of grace to be allowed on bills of exchange, are regulated by the law or usage of the place on which the bill is drawn, and though, if a bill be made payable at a particular bank, and if it be the established usage of that bank, to present the bill and demand payment *on the fourth day of grace, such a presentation and demand are sufficient to charge the drawer and indorsers; yet, this usage constitutes an exception to the general law merchant of this country, which requires that the bill shall be presented, and payment demanded, on the third day of grace; and if no such usage appear, the general law merchant must govern the case. 3 Kent’s Comm. 71; Bailey on bills, 151-5; Renner v. Bank of Columbia, 9 Wheat. 581; Mills v. Bank of U. States, 11 Wheat. 431; Bank of Washington v. Triplett &c., 1 Peters, 25. It was the duty of the circuit court to have stated the general rule of the law merchant to the jury; and if the plaintiff relied on any special usage constituting an exception to the general rule, or upon any fact which dispensed with his observance of the general rule, it was for him to present such matter to the court, and to ask its instruction as to the effect of it.

Stahard, for the appellee, did not decline the argument upon the merits of the case, as disclosed by the evidence stated in the case agreed by the parties upon the first trial, and in the fourth bill of exceptions to the opinion of the court overruling the-motion for a new trial: he contended that if the court could or would look into the evidence, the justice of the appellee’s claim would be found to be clearly established. Indeed, he thought it so apparent, that the verdict and judgment conformed with the justice of the case, that this court ought not to reverse the judgment and direct a new trial, on the ground of errors or misdirection of the circuit court, that could not and ought not to affect the result of the case. If it appeared that substantial justice was done, a-new trial ought not to be directed. But, he said, the conditional verdict rendered at the first trial, subject to the opinion of the court upon the facts agreed, was necessarily set aside; because, in truth, there were no facts but only the state of the evidence agreed, upon which (as he shewed to the satisfaction of this court) there arose many controverted questions of fact; so that neither the circuit *court, nor this court, could give any judgment upon that verdict. Henderson v. Allens, 1 Hen. & Munf. 235; Blank’s adm’r v. Foushee, 4 Munf. 61. And the fourth bill of exceptions was not well taken; for that also stated the evidence in detail, and evidence from which the parties and their counsel, in the circuit court and in this court, endeavoured to deduce directly contrary inferences; and, therefore, this court could not review the opinion of the circuit court refusing the new trial, upon such a bill of exceptions as this. Bennett v. Hardaway’s adm’r, 6 Munf. 125. The principle of that case was no wise impugned, but on the contrary approved and confirmed, in Carrington v. Bennett, 1 Leigh, 340, and Ewing v. Ewing, 2 Leigh, 337. Then, as to the point made upon the second bill of exceptions, he said, the instruction prayed by the defendant, did not truly propound the law merchant applicable to the case. Eor, according to the law merchant, the days of grace were regulated, in this case, by the laws of Ohio, or by the usage of the bank of Marietta; yet the court was asked to instruct the jury, in effect, that, without regard to what might be the law of that state or the usage of that bank, it was absolutely necessary to charge the indorser, that the bill should be presented, and demand of payment made, on the third day of grace. The exception to the general rule was as much a part of the law merchant as the rule itself. Besides, the court was well warranted in refusing to give the instruction, because it was asked upon a garbled state of the facts; for it distinctly appeared in the record, that the plaintiff had adduced evidence to prove such an assumpsit of the defendant to pay the contents of this bill, as (if proved) would have put an end to all questions as to laches in presenting the bill for payment, or notice of dishonour; and the case before the jury turned mainly upon the sufficiency of the evidence to establish this assumpsit.

Cur. advis. vult. And a few days after, Cabell, J., said — The six special counts in the amended declaration are all ^against the defendant as indorser of a bill of exchange, charging him to be liable to pay the same under the custom of merchants. I understand, that all the judges are of opinion, that these counts shew that the defendant was not liable to pay the bill, under the custom of merchants; because they shew, that the demand of payment was not made until the day after the expiration of the three days of grace allowed by that custom. I understand, that all the judges are of opinion, that if these counts had been demurred to, the demurrer must have been sustained, or that if the defendant had, at the trial, moved the court to instruct the jury to disregard them, the court ought to have given that instruction. I understand, moreover, that it is the opinion of all the judges, that the plaintiff could not properly have introduced anj' evidence, at the trial, tending to prove a special custom of the bank ox Marietta, allowing four days of grace; he having declared on the custom of merchants, and not on the special custom of the bank. In all these opinions I concur. But the defendant having taken issue on the faulty counts, and having failed to demur, or to move for an instruction to disregard them, a question arises, whether, under these circumstances, it was competent to him, on the trial of the issue, to move the court for the instruction set forth in the second bill of exceptions; namely, that the three days of grace according to the custom of merchants, having expired before the demand of payment was made, “the demand was not a good and sufficient demand of payment of the bill, and that for want of such good and sufficient demand, the defendant was discharged from his liability arising from his indorsement. ” This question was not adverted to in the argument at the bar; and as it involves a principle of great importance, not only to the parties in this case, but to the public generally, I wish, before I decide it, to hear all that the counsel on both sides may be disposed to urge upon it.

The question thus propounded by the court, involved the construction and effect of the new provision in the statute *of jeofails, 1 Rev. Code, ch. 128, § 103, p. 512, that, no judgment, after verdict, shall be staid or reversed, for any defect whatsoever in the declaration or pleadings, whether of form or substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of.” And this question was argued by the counsel for both parties; but Heigh intimating that the declaration appeared to him to be a good one, and the court telling him he was quite at liberty to argue that point—

He said, he understood the only objection to the six special counts of the declaration to be, that they all (of course) founded the plaintiff’s demand upon the defendant’s liability as indorser, under the usage and customs of merchants; and yet they all shewed (as the objection supposed) that the defendant was not so liable; because they all alleged, that the demand of payment of the acceptor, was not made until the day after the expiration of the days of grace allowed by the custom of merchants, in other words, by the general law merchants. These counts, all, after stating the drawing, the acceptance, and the indorsements of the bill, allege, that, “afterwards, when the bill became due and payable according to the tenor and effect thereof, to wit, on the 27th December 1816, at the bank of Marietta, in the state of Ohio,” the bill was duly presented for payment &c. Now, the time when the bill became due and payable, according to its tenor and effect, depended on the law merchant applicable to the case: if there was no particular law of the state of Ohio, and no particular usage of the bank of Marietta, then, by the law merchant, the bill was payable on the third day of grace: if there was any law of Ohio, or any- special usage of the bank of Marietta, regulating the days of gráce, and requiring bills to be presented and payment demanded on the fourth day of grace, then (and still according to the law merchant) the bill was payable and properly demandable on the fourth day of grace ; and the plaintiff alleging presentation and demand when the bill became due and payable according to the tenor and effect thereof, was entitled to *shew any particular law or special custom requiring presentation and demand on the fourth day of grace, since the law merchant made the bill due and payable on the day when such particular law or local custom required it to be presented and demanded. In this respect, the view, which Mr. Stanard had taken in his first argument, of the law. of the case, was certainly just. The effect of this general form of pleading, and letting in evidence of a local.law or usage under such a declaration, would not be to surprize the defendant at all; since he, having indorsed the. bill payable at a particular bank, was held to take notice of the special usages of the bank, if there were any, and to know that the bill would be dealt with accordingly (1 Peters, 32,) and was, therefore, as distinctly apprised, that evidence of the special usage would be adduced to prove the plaintiff’s case, as if the usage had been specially pleaded by him. Accordingly, he said, in declarations upon bills payable in foreign places, where the days of grace allowed were different from those allowed by our general law merchant, the law or usage of the foreign place on which the bill is drawn, though that must regulate the days of grace, was never set out by the plaintiff in his declaration. He referred to the form of a declaration on a bill drawn on Venice, in Bailey on bills, 265, in which, though six days of grace are allowed at Venice, Chitt. on bills, 339, yet the law and usage of Venice in this partic-lar, are no wise set forth, and the time of presentation and demand, alleged under a scilicet, is not the sixth day of grace, but an earlier day. And in Bailey’s commentary on his form of the declaration (p. 283, 4,) the distinction was stated very clearly — that if the declaration allege presentation and demand on a particular day, .without any express averment that the presentation was made on the day when the bill became payable, then the day stated must be the very day when in truth it became payabl^; but, if there be such an express averment (meaning, if due presentation and demand is averred, and then the date of such presentation stated under a scilicet) exactness as to the day *is immaterial' — ■ perhaps, said Bailey — but all doubt was removed by the case of Bynner v. Russell, 7 Moore, 266; 1 Bingh. 23, S. C. There, the declaration against the drawer of a bill averred, that “when it became due and payable according to the tenor and effect thereof,' to wit, on the 31st March 1822,” it was duly presented for payment. And upon special demurrer, shewing for cause, that the 31st March was Sunday, the court held the declaration good: that “the presentment was stated to have been made when the bill became due and payable according to the tenor and effect thereof,” and “that was quite sufficient, as the tenor and effect of the bill would appear upon the face of it. Besides, as it was laid under a scilicet, the precise day was not material, and need not be proved. Therefore, in the present case, he said there could be no doubt, that under all the special counts in this declaration, the plaintiff might have proved presentation and demand on the third day of grace, if the bill had in fact been presented on that day. But he went farther; he thought, that, if by any local law or usage, the bill ought to have been presented on the fourth day of grace, the plaintiff might have given evidence of such local law or usage, and proved presentation and demand according- to it, though the local law or usage was not alleged in the declaration. Mr. Justice Thompson, indeed, in delivering the opinion of the court in Renner v. Bank of Columbia, 9 Wheat. 596, said, that if that case had come before the court upon demurrer to the declaration (which it did not) “there being no averment of the special custom as to the demand on the fourth day, and the general rule being that the demand must be made on the third, if the declaration alleged it to have been made on the fourth, the joinder in demurrer would admit the fact, and, of course, that the demand was too late. But had the declaration contained an averment of the special custom, it must have alleged the demand on the fourth day; that is, according to the legal effect of the note; and a demand laid on any other day, would have been bad.” And, probably, it was this dictum *(for it was avowedly nothing more) that had led the judges of this court to the conclusion which had been announced, that the special counts in this declaration were faulty and demurrable. But, after it was settled, that the law merchant, though it in general requires the bill to be presented on the third day of grace, yet respects any local law or usage of the place on which it is drawn or where it is made payable, and requires, if the local law or usage requires, presentation on the fourth day; — and after it was also settled, that all parties to the bill are bound by the local law or established usage of the place where it is made pay'able or negotiable, whether they have a personal knowledge thereof or not, Mills v. Bank of U. S., 11 Wheat. 438, Bank of Washington v. Triplett &c., 1 Peters, 32, 3, he had never been able to see any reason why the local law or usage should be pleaded in the declaration, in order to entitle the plaintiff to give evidence of it at the trial, and of presentation in conformity' with it, any more than that the holder suing upon a bill drawn upon a foreign country, should be required to set forth the law or usage of the country on which it is drawn, in order to entitle him to give evidence of the law or usage of the foreign state, and of the bill having been dealt with as the foreign law or usage required. The parties to a bill are held to have notice of, and.to contract with reference to, the local usage of a particular bank at which the bill is made payable or negotiable, just as they are held to have notice of, and to contract with reference to, the law or usage of a foreign country, in case the bill be drawn upon it; and both alike are matters of fact, and matters of fact known, or presumed to be known, to the defendant as well as the plaintiff; so that the very nature of the demand apprises the defendant, that he must come prepared to try, whether the bill has been dealt with according to the law or usage of the place where it was Made payable or negotiable, that being the very point on which his liability de= pends.

*CARR, J.

On my first examination of this case, I inclined to the opinion that the second exception was well taken, and must reverse the judgment. Some of my brethren differed with me, and on conference, and further consideration, I acceded to the opinion, that in the actual posture of the case before the jury, the defendant had no right to the instruction of the court on the point submitted and stated in the second bill of exceptions, it being fo - eign to the issue joined between the parties. This was founded on an understanding of the declaration, which the arguments and authorities of Mr. Height have satisfied me was erroneous. The six counts all averring, that the bill was “presented when it became payable according to the tenor and effect thereof,” I do not think the scilicet, which follow can vitiate these positive averments: and upon the issue taken upon these counts, I think the whole matter, whether of the general custom, or any special custom, which mightbe proved, was fairly before the jury. With these preliminary remarks, I proceed to the examination of the case.

I do not see how we can look to the case agreed on the first trial. A new declaration was afterwards filed at rules, whither the cause was sent for that purpose; a new plea put in ; a trial upon it, and a general verdict for the plaintiff. On that trial the defendant took several exceptions to the opinion of the court; and to these I think we are confined.

The first bill states, that the defendant asked the opinion of the court on several important points; but they are so defectively stated, that it is impossible from the case made by the exceptions, to say that the court erred in refusing the instruction.

Then, as to the second bill of exceptions: as I understand it, the defendant propounded to the court a naked point of law, arising upon the face of the bill, and the proof of the demand; asking the court to instruct the jury, that it isa general rule of the law merchant, that a demand of payment of a bill of exchange, must be made on the third *day of grace, and that a failure to make such demand discharges the indorser. Now, if this be, in truth, a correct statement of the general rule, the court ought so to have declared it. Nor could such declaration have injured the plaintiff in the slightest degree, if he had evidence to take his case out of the rule, either by proof of a particular custom at the bank of Marietta, or by a subsequent binding promise of the defendant: for, in such case, the plaintiff would immediately move for an instruction, that the special custom governed the case, or that the subsequent assumpsit dispensed with proof of a regular demand. But how did the refusal of the court to give the instruction prayed by the defendant affect him? He contended, that this was a rule of law to the benefit of which he was entitled, and he asked the court (the proper tribunal) to declare this law. When the court refused to tell the jury that such was the law, giving no reason for such refusal, it, in effect, instructed the jury that such was not the law. Was this correct? The supreme court of the U. States, in Renner v. Bank of Columbia, said, “we admit, in the most unqualified manner, that 1he usage of making a demand, on the third day of grace, has become so general, that courts of justice will notice it ex officio, and in the absence of any proof to the contrary, will presume that such was the understanding of all parties to a note when they put their names to it.” In Mills v. Bank U. States, the court said, “There is no doubt, that according to the general rules of law, demand of payment ought to be made on the third da3", and that it is too late, if made on the fourth day of grace.” In The Bank of Washington v. Triplett &c. the chief justice, delivering the opinion of the court, after stating I he third as the last day of grace, said, “The allowance of days of grace is a usage which pervades the whole mercantile world. It is now universally understood to enter into every bill or note of a mercantile character, and to form so completely a part of the contract, that the bill does not become due on the day mentioned on its face, but on the last day of grace. A ^demand of payment previous to that day will not authorize a protest, or charge the drawer.” This is the unquestionable general rule; and so in this case, ought the circuit court to have declared it. Its refusal to do so, was clear error.

With respect to the third bill of exceptions, the ground of that was removed by the release of part of the damages.

As to the fourth. A motion was made for a new trial, on the ground that the verdict was contrary to the justice of the case upon the evidence. We have no facts certified by the'judge of the court below, but the whole evidence set out at large, and that evidence (as I understand it) contradictory in several, respects. In Bennett v. Hardaway, this court (apparently, after great consideration) decided that it would not examine the evidence, which had been before the court below, on a motion for a new trial, but such facts only as the judge w'ould certify; and though in Carrington v. Bennett, this case was, as 1 thought, a little departed from, a majority of the court disclaimed any such intention; and being a divided court of three judges, could not overrule the previous solemn decision, or settle the law. Nor does the case o£ Ewing v. Ewing, according to my recollection of it, purport to overrule Bennett v. Hardaway: I am sure I should not have concurred if I had so understood it. That case, therefore, I still consider as giving the law; and under it we cannot look into this evidence set out at large, and contradictory. This answers the remark also, that if upon the whole record, the court-should see that the case of the party, against whom the instruction is given, is a bad one, the judgment should not be reversed, though the instruction were wrong. Here, we cannot look into the evidence to see how the whole case is: for, if we may not look into it, to see whether the party has a right to a new trial, surely wo cannot, to support an erroneous instruction given against him, upon the ground that his case is bad.

I think that the judgment must be reversed, and the case sent back, with direction to the court to give the instruction ^stated in the second bill of exceptions, if it should be asked on the new trial.

CABELL, J.

I am of opinion, that the defendant was entitled to the instruction stated in the second bill of exceptions, and, therefore, the court erred in refusing to give that instruction; and, consequently, that the judgment must be reversed.

BROOKE, J-, concurred.

TUCKER, P.

The first question in this case is, that which arises out of the first verdict, and the order setting it aside; and of this I shall dispose by the single remark, that as the verdict consisted of an undigested mass of evidence, instead of finding the facts, to be submitted to the court, it was not such a verdict as would have justified the court in pronouncing judgment in the cause. The cases cited at the bar are decisive.

Proceeding then to the second trial, we find five bills of exceptions. The fourth of these arose out of a motion for a new trial, on the ground that the verdict rendered by the jury was against evidence, which motion was denied by the court. The defendant thereupon moved the court to certify the facts, which the court refused to do, but certified the evidence given upon the trial. This, according to the case of Bennett v. Hardaway, was irregular, nor can the qase even be brought within the broader principles, -which seem to be avowed by one of the judges in Carrington v. Bennett. Eor the bill of exceptions, presents a mass of mere evidence for the consideration of this court. In this mass of evidence, is the conflicting - testimony of witnesses upon points probably of vital importance. The facts are not, therefore, so stated as to enable the court to decide. But this seems not to have been the fault of the defendant or his counsel. The court refused to certify the facts. ’ What is the consequence? Can this court set aside a verdict for *an error of the court below posterior to its rendition? This would be to make the effect precede the cause. Or, must the party agreed resort to compulsory means, to compel the court to certify the facts? a question which seems to have been discussed in Vaughan v. Green, 1 Leigh, 292. Such a course would, in this case, be impracticable, as the judge who signed this bill of exceptions, is no longer the judge of the circuit, and he who now presides knows nothing of the case.

From these difficulties we must seek relief, in a resort to the other points in the cause. The next I shall consider, is the second bill of exceptions. I was, at first, inclined to think that this was not well taken in point of form, as it seemed to have selected a garbled state of the evidence, and the instruction asked seemed broader than would have been justified. But I am satisfied this is not so. The facts upon which the motion was rested, were alone necessary to be stated, provided it sufficiently appeared the instruction asked was relevant and material. This has been done; and the instruction asked, not only did not and could not have precluded the defendant from moving a counter instruction upon other facts (such as that four days of grace were allowed at the bank of Marietta, which would have made the demand and protest valid) but it did not go farther than it ought to have done, provided the instructtion asked was proper in point of law. This, then1, is the question to be solved, and this appeared to me to depend upon a preliminary question as to the declaration in the case.

My impression was, that the six first counts were defective in this, that the statement in each of them of the presentment for payment, “when the bill became due and payable, to wit, on the 27th December 1816“ (which was the day after the expiration of the days of grace) was inconsistent with itself: or that, if the words “on the 27th December” were to be taken as explaining or modifying the former words, which seemed the fair construction, then the declaration did not shew presentment until after the expiration *of the three days of grace, and so furnished no ground of action against the defendant. This scilicet, indeed, is often rejected, when it makes nonsense or is repugnant; but when it only serves to explain or to modify the meaning of what goes before, it will not be disregarded, and particularly where the day laid is material. For it is said in Hobart, 172, that a videlicet shall make a restriction, where the words are general; and where it is not repugnant to the preceding matter, but well agrees with it, there it amounts to a direct affirmation. See 1 Wms. Saund. 170, note 2, 2 Id. 291, note 1, Salk. 325, 6 Com. Dig. 60, 19 Viner, 46, 12 Mod. 579, 611. Upon examination, however, I find that the case of Bynner v. Russell in 7 Moore, cited by Mr. Leigh, is a direct authority upon the point before us, and establishes that in a case like this, the scilicet must be rejected. To this authorityl refer (and the rather because I am averse to technicalities) though it appears to me at variance with the established doctrines in relation to the scilicet. The scilicet, then, being rejected, the declaration states the case of a presentment “when the bill became due and payable,” that is on the third day of grace; for as no custom is stated, the general law merchant must be intended; and, as the evidence proved the presentment on the fourth day instead of the third, it neither supported the declaration nor shewed a cause of action. Hence, the instruction would have been proper.

The judgment must therefore be reversed, and the cause sent back, when, if the pleadings remain unchanged, and the evidence of presentment and protest should be the same as set forth in the second bill of exceptions, without any thing more, the instruction asked for at the last trial, must, if again required, be given. "

The judgment entered by the court conformed with the opinion of the president.  