
    *Gimmi v. Cullen.
    March Term, 1871,
    Richmond.
    M02Í0UBB, P., absent.
    1. Sale of Negotiable Notes — Usury.—G makes his note which is endorsed, and makes a deed of trust on land to secure it. and puts it in the hands of "L, a broker and banker, to sell; and B advances to him nearly as much as it is expected will be the net proceeds of the note. On the next day, h offers the note to 0 at one and a quarter per cent, per month discount. C says he has no money, but B, who has on deposit notes of 0 coming- soon to maturity, proposes to advance the money for him; and 0 agrees to take the note, if, after examining the title to the property, he is satisfied. B thereupon advances to G the whole of the net proceeds of the note. 0 examines the title and is satisfied, and in sixteen days afterwards he pays B the money he had advanced for him, and interest upon it for the sixteen days. C has no knowledge of the character of the note, or for whose benefit it is sold. This is not usursr.
    2. Bill of Exceptions — Certification of Evidence — Rule as to Review by the Appellate Court.  — In a bill of exceptions to the refusal of the court to grant a new trial, the evidence, and not the facts proved, is stated. If all the evidence was introduced by the exceptor, the Appellate court will not review the judgment; but if all the evidence is introduced by the party who recovers the judgment, the Appellate court will review the judgment, and, if takingit alias true, the verdict and judgment is erroneous, will reverse it.
    In May, 1867, Louis Gimmi applied to the judge of the Circuit court of the city of Richmond for an injunction to restrain Patrick Cullen and others from proceeding to sell certain real estate in the city of Richmond and county of Henrico, under a deed of trust executed by Gimmi and wife to secure a negotiable note for $7,000, made by Gimmi and endorsed by *S. Swartz, and held by Cullen. The bill charged that the note was usurious, having been discounted at sixteen per cent, per year; and without asking for a discovery from the defendants, prayed the court to direct an issue to be tried at its bar, whether or no the transaction was usurious.
    Cullen answered the bill,.denying that he had knowledge of any usury in the note: he purchased it of Lancaster & Co., brokers, without knowing for what purpose it was made, or to whom it belonged.
    An issue having been directed, on the first trial the jury was hung, and no verdict was rendered. On the second trial, after the evidence had been introduced, the defendant moved the court to instruct the jury as follows :
    If the jury shall be satisfied, from the evidence, that the note on which this suit is brought was drawn and endorsed by the maker and endorser to raise money on a sale of it, and was placed by them in the hands of Lancaster & Co., brokers, to be sold by them for that purpose; and Lancaster & Co. sold it to the defendant at a discount of more than legal interest, but neither endorsed the note nor made themselves in any way responsible for its payment, nor at any time owned it, or any part of it; and that the defendant purchased it without notice of the purpose for which it was made, or of its character, more than the note and endorsement import, the jury must find for the defendant.
    The plaintiff thereupon moved the court to instruct the jury as follows:
    1.If, from the evidence, the jury shall believe that the plaintiff applied to Lancaster & Co. for a loan of money, and at the suggestion of Lancaster & Co. made the note in the house of Lancaster & Co., which was then and there, with the knowledge of Lancaster & Co., endorsed by Swartz for the accommodation of Gimmi, and delivered to Lancaster & Co., who thereupon *paid him for the said note-the sum of $5,894 17 out of their own money, and the deed of trust to secure it was prepared in their office; and at the time Lancaster & Co. had no authority to purchase the note for Cullen, and no money of Cullen in ]their hands, then the transaction is usurious ; and the subsequent sale of the note by Lancaster & Co. to Cullen did not purge it of that taint; and the jury must find for the plaintiff.
    The court gave the instruction asked for by the defendant, and refused to give that asked for by the plaintiff. And the court then gave the following instruction:
    2. But if the jury shall believe that the note so made and endorsed was purchased by Lancaster & Co. with a knowledge of its character, at a greater rate of discount than six per centum per annum, then the transaction is usurious, and they must find for the plaintiff.
    And on the motion of the plaintiff, instructed the jury as follows:
    3. And if the jury are satisfied, from the evidence, that Lancaster & Co., without any authority from Cullen to purchase the note for him, paid for the note with their own money and received it from the maker, they thereby became the purchasers of the note.
    The plaintiff excepted to the opinion of the court giving the instruction asked for by the defendant, and refusing to give the first instruction asked for by the plaintiff.
    The bill of exception sets out the substance of all the evidence given on the trial; for which see the next bill.
    The jury found a verdict that the note was not usurious. And thereupon the plaintiff moved the court to set aside the verdict as contrary to the law and the evidence. But the court overruled the motion, and the plaintiff excepted. The bill of exception states *that- upon the motion of the plaintiff the court certifies the following as the evidence, there being no testimony offered by the defendant. R. A. Lancaster, a member of the firm of Lancaster & Co., deposed as follows: and then proceeds to give his evidence in detail. In substance it is as follows: The note in question was sold by me to Cullen on the 1st of May. Gimmi and Swartz were in the room at our banking house when the note was executed. Gimmi told me he wanted to raise money in several previous conversations. Swartz said Gimmi owed him money, and had property. I told him I could raise the money. Gimmi’s note was larger than the note due to Swartz; that, Swartz said, was for §2,000 in gold, for which he had a deed of trust. The note was drawn in our office in the presence of Gimmi and Swartz at my suggestion. It was difficult, at the time, to make negotiations for money. The rate of discount on the note was one and a quarter per cent, per month, then very moderate. Our commissions were to come off the amount. To secure the note Gimmi executed a deed of trust on real estate. (The deed is set out. This deed is" dated April 30th, 1866. On that day there was placed to the credit of Gimmi, on Gim-mi’s pass book, $5,894 17; and on the 1st of May, there was entered on their ledger to his credit $5,926 67 ; and Gimmi checked for the money as he needed it.) Thinks Dr. Cullen was not in the city when the note was executed. Did not tell him anything about the origin of the paper, or the purpose for which it was made; because if I had done so he would not have purchased it. We never inform a purchaser of the origin of the paper we offer for sale. He did not know the origin of the transaction or the character of the note, or to whom it belonged. I explained to him the security on which it rested. Dr. Cullen kept an account at our house, but never authorized me to buy paper for him. I never bought any *paPer for him without first submitting it to him. At this time Dr. Cullen had no money on deposit with us, but he had bills receivable deposited with us for collection, which were paid, and by which we were reimbursed the money which we advanced to Gimmi. When the transaction was closed he gave us his check for the amount of the sale of the note and sixteen days interest. When I first offered the note to Dr. Cullen, on the 1st of May, he objected to taking it, saying that he had no money, and his account with us was in fact overdrawn. I told him that would make no difference, that it was a good note, and we would advance the mone3T for him; and he agreed to do so, subject to the right, on his part, to look into the title to the property which had been conveyed to secure the note, and to decline the purchase if he was not satisfied with it. He did look into the title, was satisfied with it, took the note, and on the 16th of May we closed the transaction, charging him with the amount which had been advanced to Gimmi and sixteen days interest upon it.
    The money advanced to Gimmi, as I have before stated, was our own money, but it was advanced for Dr. Cullen, as I have before stated, to enable him to purchase the note, not to purchase it for myself or for my house, and I never considered myself as the owner of it, or any part of it, at any time, and never intended to make myself responsible for its payment. Yet, if Dr. Cullen had found that my representation of the security was not correct, and had refused to take the note, as he had a right to do, I should have been obliged to look to Gimmi for the repayment of the money I had advanced to him, as I have before stated. That is one of the risks of my business.
    The defendant Cullen was examined as a witness on a former trial, and not being introduced on this trial, the plaintiff introduced several jurors who served upon the former trial, who testified that, upon the *former trial, when Cullen was examined on his own behalf, he deposed that he did not purchase the said note until after he had examined the title to the property, and the property itself, and then paid for it by his check on Lancaster & Co.
    On the 11th of March, 1869, the cause came on to be heard, upon the verdict of the jury and the motion by the plaintiff, for a new trial of the issue, when the court overruled the motion, dissolved the injunction, and dismissed the bill. And Gimmi thereupon applied to this court for an appeal, which was allowed.
    Lyons, for the appellant, insisted—
    1. That the evidence shewed that Lancaster took the note from Gimmi, and paid him the money for it; and that the sale by Lancaster to Cullen was subsequent to this payment by Lancaster to Gimmi. And as the purchase was admitted to be at more than legal interest, it was clearly usurious. And the note being usurious in its inception, it is null and void in the hands of every subsequent holder. The first instruction asked for by the plaintiff should, therefore, have been given. Wilkie v. Roosevelt, 3 John. Cas. 206; Jones v. Hake, 2 Id. 60; Bennet v. Smith, 15 John. R. 355; Whit-worth v. Adams, 5 Rand. 333.
    2d. If the parties whose names are on a note made to raise money, and discounted at a higher rate than legal interest, could not sue upon it if it had not been discounted, it is usurious and void. Powell v. Waters, 17 John. R. 176; 8 Cow. R. 669. And a bill or note drawn for the purpose of being discounted at usurious interest, and endorsed for the accommodation of the maker, is void. Munn v. The Commission Co., 15 John. R. 44; Bennet v. Smith, 15 Id. 355.
    3d. A note has no legal inception until its delivery, as evidence of an existing debt; and if negotiated at a usurious discount by the maker, it is void in the *hands of the purchaser. Marvin v. McCullum, 20 John. R. 288; Seymour v. Strong, 1 Hill N. Y. R. 563; Asly v. Rapeleye, Id. 9; Clark v. Loomis, 5 Duer R. 469; Clark v. Scisson, 4 Id. 408; Williams v. Storm, 2 Id. 52; 1 Saund. R. 60; Catlin v. Gunter, 1 Kern. R. 368. And one who acts as agent in procuring a usurious loan upon a note, cannot recover upon it as endorser. Reed v. Smith, 9 Covr. R. 647.
    4. A note made to raise money, and sold at a higher rate of interest than is lawful, if none of the parties to it could sue upon it, as between themselves, it is void in the hands of a party who had purchased it at less than the legal rate of interest. Knights v. Putnam, 3 Pick. R. 184; Coclcey v. Forest, 1 Gill & John. R. 482; Ruffin v. Armstrong, 2 Hawks. R. 411; 2 Parsons on Bills and Notes, 426, 427 and notes V. W. & X. ; Edwards on Bills and Notes, 352. So, if a note is purchased with knowledge, from an agent of. the maker, at a usurious discount, it is void ; and, a fortiori, if it is purchased by his own agent. Taylor v. Bruce, Gilm. 42; Whitworth v. Adams, 5 Rand. 333. And where a usurious loan is made, and promissory notes are pledged as security, no action can be riiaintained by the lender against the borrower. Bell & Harvey v. Bent, 24 Wend. R. 230.
    J. Alfred Jones and R. T. Daniel, for the appellee.
    First. It was right to give the instruction asked by the defendant, Cullen.
    It is in Virginia well-settled law, and has been since Whitworth v. Adams, 5 Rand. 333, and Taylor v. Bruce, Gilmer 42, that a note, made for sale, and placed in the hands of an agent to be sold, may be by him sold at a discount exceeding legal interest, when the agent does not make himself responsible for it, and the buyer does not know the note was made for sale. Daw’s ex’rs v. ^Sutherland & als., 5 Gratt. 357; Brummel & Co. v. Fnders, Sutton & Co., 18 Gratt. 873.
    Second. The court, in effect, gave the instructions asked by the plaintiff, Gimmi, who has therefore no right to complain on that score.
    Cullen was the party entitled to complain, for there was no evidence that the note was purchased by Bancaster, but evidence exactly to the contrary; and the instruction was calculated to mislead. And so'was the instruction that “if Bancaster & Co. paid for the note with their own money, and received it from the maker, they thereby became the purchasers of it.”
    The proof is, that they did not pay for it with their own money; that they acted as Gimmi’s agents in selling the note, and that he paid them for it a commission of $70.
    The proof is, that they advanced the money, and that” Cullen bought the note, and paid interest on the advance. If they fix the date of the purchase on the 1st of May, and Cullen on the 16th, it is because he did not regard it consummated until he examined into the security, and he did not complete the examination till the 16th. It was inchoate on the 1st, and when he found the security good, on examination, the purchase related ' back to that day. Accordingly, he paid interest for the 16 days.
    In accounting for the price to Gimmi, they took the risk of Cullen’s accepting the security. They were convinced it was good, and there wa$ no risk, and thejr found their account in the commission they got from Gimmi on the transaction.
    It is said Bancaster & Co. had no authority to purchase for Cullen. It was riot necessary for them to have authority from Cullen to purchase for him. He was acting for himself, and agreed conditionally, on the 1st of May, to buy. Though he had no money, their ^advancing on his account, subject to his refusal of the security, and therefore of the obligation to return the advance, was not paying their own money.
    To commit usury, parties must intend to do the acts constituting it. Bancaster & Co. did not intend to pay their own money to get the title to the note in themselves, nor did Gimmi intend they should get it.
    They and he intended a brokerage on the .part of Bancaster; and if Cullen had rejected the security, the note would have resulted to Gimmi, and Bancaster been left to sell it to some one else, -who thought better than Cullen did of the security, and thus reimburse himself for the money he had accounted for to Gimmi.
    Third. The motion for the new-trial was properly refused. Not only was there not the conclusive evidence required to establish usury; Brockenbrough v. Spindle, 17 Gratt. 21, 33; there was not enough to beget a well-grounded suspicion of it. S. C. 45. But the court cannot review the ruling, for the facts are not certified.
    
      
      SaIe of Negotiable Notes — Usury.—See the principal case sustained in Moseley v. Brown, 76 Va. 421, and distinguished in Bailey v. Hill, 77 Va. 497.
    
    
      
       Bill of Exceptions -Certification of Evidence. — See second headnote sustained in Morgan v. Fleming, 24 W. Va. 186, 196. Butin Moses v. Old Dominion, etc., Co., 82 Va. 29, Lacy, J., in a dissenting opinion said: “In the case of Gimmi v. Cullen, 20 Gratt. 439, the cases are examined and compared, and it was held that ‘if all the evidence is the evidence introduced by the exceptor, the appellate court will not review the judgment; but if all the evidence is introduced by the party who recovers a judgment, the appellate court will review.5 Butin a case where the evidence was all introduced by the party who obtained the verdict, and yet he was made the exceptor, by the action of the court in setting aside the verdict, if the exceptor’s evidence is rej ected, who passes upon the weight or credibility of the evidence? See the opinion in that case. This statement of.the rule is not sustained by the authorities cited. In this case the sole question before this court was the measure of damages. As to this question there was no conflict of testimony. I do not see how the court can refuse to review the case upon the ground that the evidence was certified as to a question not in dispute. The question of the measure of damages in a case like this is a question of law. That the damages were too small was not subject of review before the statute to be found in the Code of 1819, c. 128, sec. 96, p. 510. Jackson v. Boast, 2 Va. Cases 49, decided in 1819; Rixey v. Ward, 3 Rand. 52.”
      See also, Cluverius’ Case, 81 Va. 867 et seq., where the decision of the principal case is discussed by Lacy, J., in a concurring opinion, who says in part, at p. 868, “Gimmi v. Cullen is in conflict with Goodman v. The Railroad, cited above (81 Va. 576). In Gimmi v. Cullen, it is said, ‘The rule, therefore, is, that where all the evidence is introduced by one party, and the verdict is in his favor, the other party may have a refusal to grant a new trial reviewed, upon a bill of exceptions certifying the evidence only. In such a case, the evidence certified will be considered as true by the appellate court, unless impeached in some way. But, when the verdict is against the party who introduced the evidence, he cannot hace the refusal of the court to grant a new trial reviewed upon a certificate of the evidence merely; he must have a certificate of the facts proved. From the evidence certified in the former case, and from the facts certified in the latter, the appellate court will draw such inference as a jury might reasonably draw.' This distinction does not exist I think.”
      Same — Same—Reversal of Judgment — Old Rule in Virginia. — Several cases cite principal case as authority for the old rule in Virginia, i. «., when the evidence is certified, the appellate court would not reverse the decision of the lower court unless on rejecting all the parol evidence of the exceptor and giving full faith and credit to the evidence of the adverse party, the judgment should still appear to he wrong. See Dean’s Case, 32 Gratt. 916, and footnote; Daingerfield v. Thompson, 33 Gratt. 141, and foot-note; Payne v. Grant, 81 Va. 169; Hanriot v. Sherwood, 82 Va. 3; Muse v. Stern, 82 Va. 37; Bank v. Waddill, 31 Gratt. 475, and foot-note. See Va. Code 1887, § 3484 for the abolition of this rule. See also, foot-note to Read’s Case, 22 Gratt. 924, for a collection of cases on this point.
      Same — Certification of Facts. — In Richmond, etc., R. R. Co. v. Morris, 31 Gratt. 208, the court said; “The certificate in this record purports to he the facts, and we think that is its true character. What each witness stated is certified as facts ‘proved’ hy that witness, and there seems to he no essential conflict in the statements. The statements of some are fuller than those of others, hut they do not appear to he in conflict with each other. This is in effect to certify that the evidence is true, and substantially the facts proved hy the evidence. Gimmi v. Cullen, 20 Gratt. 439, 455.” Whereas in Procter v. Spratley, 78 Va. 264, the court said: “BUI of exceptions No. 2 purports to certify the facts proven; hut upon many points, and, indeed, the most material points, it certifies the testimony; and upon the question whether this was a sale hy sample or not, the court expressly refuses to certify what facts were proven, hut certifies that the evidence was conflicting, and refers the appellate court for information to the evidence certified in hill of exceptions No. 1. On these points hill of exceptions No. 2 is a certificate of evidence and not of facts proven. In addition to the authorities above quoted, see also, Danville Bank v. Waddill’s Adm’r, 31 Gratt. 475; Gimmi v. Cullen, 20 Gratt. 451-2; and opinion of court in Read’s Case, 22 Gratt. 928.”
      Same — Verdict Contrary to the Weight of Evidence— When New Trial Granted. — In Cluverius v. Com., 81 Va. 816, the court said; “A new trial, asked on the ground that the verdict is contrary to evidence, ought to he granted only in a case of plain deviation from right and justice; and this court will set aside a verdict, on such a motion, only in a case where the jury have plainly decided against the evidence, or without evidence. Dean’s Case, 32 Gratt., citing Read’s Case, 22 Gratt., and cases there cited; Gimmi v. Cullen, 20 Gratt., and cases there cited; Blosser v. Harshharger, 21 Gratt., and cases there cited.” See also, foot-note to Read’s Case for a collection of cases on this suhj ect. See also, on the above points, mono-graphic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   JOYNFS, J.

The court did not err in giving the instruction moved by the defendant. It was in accordance with the doctrine of a majority of the -whole court, in Whitworth v. Adams, 5 Rand. 333; following Taylor v. Bruce, Gilmer 42; and recognized as the settled law of the State, in Brummel & Co. v. Enders, Sutton & Co., 18 Gratt. 873.

The instruction moved by the plaintiff was predicated upon the supposition that Bancaster & Co. did not sell the note to the defendant as the agents of the maker and endorser, or either of them, as supposed in the instruction moved by the defendant; but that they had themselves become the purchasers of it, and afterwards, while they held it as their own property, sold it to the defendant. This instruction did not submit to *the jury the general question whether the note had been purchased by Bancaster & Co., and sold by them, as their own property, to the defendant. It set forth various supposed facts, and implied, without saying so, that if these supposed facts were true, Bancaster & Co. had purchased the note, and sold it to the defendant as their own property;, which would have made a case of usury. The court, upon refusing to give this instruction, gave another, of its own motion, which, without any recital of special circumstances, submitted to the jury, in general terms, the question, whether the note was purchased by Bancaster & Co. ; and instructed them that, if it was, it was a case of usury. The court evidently designed to embody, in this instruction, the same proposition as that embodied in the prayer of the plaintiff. It doubtless thought that the form in which the latter was expressed was calculated to confuse the jury. If the instruction thus given fell short, in its scope and effect, of the instruction moved by the plaintiff, the difference was fully made up by the instruction subsequently given on the motion of the plaintiff. The plaintiff, therefore, has no right to complain; he obtained from the court substantially the same instruction he asked for, and in a simpler and more intelligible form. The instruction moved by the plaintiff was liable, however, to a more serious objection. It did not present to the mind of the jury the distinct question, whether Lancaster & Co. had become the purchasers and owners of the note, upon their own account. A lawyer would readily understand, upon reading the instruction, that that was the question involved; but a plain man, without legal knowledge, would hardly discover it without explanation. Moreover, it assumes that Lancaster & Co., at the time the note was delivered to them by Gimmi, “paid him for the said note the sum of $5,894 17, out of their own money,” having then no money of Cullen in their hands, and no authority *from him to purchase a note for him, and says that, if that was so, the transaction was usurious. This could not be true unless the $5,894 17 was paid as the price of the note; unless the transaction was a sale of the note by Gimmi, and a purchase of it by Lancaster & Co. If it was paid for the note, in the sense of an advance of money upon it, in the expectation of making a sale of it, the note being still the property of Gimmi, then the proposition of the instruction would not be true. And in this view, the fact that the money was paid out of Lancaster & Co.’s own funds was wholly unimportant. And that fact was unimportant in any view, unless it was paid, on their own account, on a purchase of the note for their own benefit. They might advance it for Dr. Cullen, as a loan to enable him to make the purchase, as Lancaster says was the fact. The fact is, that while only $5,894 17 was put to the credit of Gimmi on the books of Lancaster & Co. on the 30th April, 1866, the day the note was delivered by him to them, the sum was increased, on the 1st day of May, 1866, the day on which the sale was made to Cullen, conditionally, to $5,926 67, on the nett proceeds of the note. The instruction withholds any consideration of this fact from the jury, and makes the transaction turn upon the payment of the $5,894 17, upon the delivery of the note. Without pursuing this subject any further, I think that this instruction was calculated to confuse and mislead the jury, and ought, for that reason, to have been refused. It would have been no error to refuse it, without substi- i tuting any other in its place. i

The bill of exceptions in relation to the instructions given and refused discloses, therefore, no error.

In considering the bill of exceptions to the refusal of the court to award a new trial. of the issue, the question arises, whether it is to be regarded as containing a certificate of the evidence given on the trial, or a certificate *of the facts proved on the trial, in the opinion of the Circuit court. The counsel for the plaintiff contended, that notwithstanding it does not, in terms, profess to certify the facts proved, yet as the evidence stated was all introduced by the plaintiff, and there was no intimation that any part of it was not credible, it should all be taken to be true; so that the certificate should be regarded as substantially a certificate of the facts. The language of the bill of exceptions, however, indicates that the intention of the court was to certify the evidence, and not the facts. It says, “the court certifies the following as the evidence in the cause. ’ ’ “Robert A. Lancaster [the only witness as to the transaction in controversy,] deposed as follows.” It says that the other witnesses also introduced by the plaintiff “testified,” &c.

Since the distinction between a certificate of evidence and a certificate of facts proved, has been so fully established and so well understood, it can hardly be supposed that the judge or the counsel, both of long experience and eminent learning and ability, would employ such language, when the intention was to have a certificate of the facts proved. The use of such words in the bill will not be decisive of the character of the certificate, if it appears from the use of other words, or from the general scope of the certificate, that the object of the court was to certify the facts and not the evidence merely. Jackson’s adm’x v. Henderson, 3 Leigh 212. But in this case there is no statement, as in Carrington v. Bennett, for instance, that “these were all the facts proved, ’ ’ nor any other expression to impair the force of the other words, and throw doubt upon the character of the certificate. And we shall see from the cases which will be cited, that the facts that the evidence was all introduced by one side, and that it was not contradicted, are not sufficient to determine *that the certificate was designed as a certificate of facts.

Regarding the certificate as intended to be a certificate of the evidence given on the trial of the issue, the next question is, was it well taken to authorize this court to review the judgment overruling the motion for a new trial in the present case.

In Bennett v. Hardaway, 6 Munf. 125, a motion had been made for a new trial, on the ground that the verdict vras contrary to the evidence, and the motion being overruled, a bill of exceptions was taken, which certified all the evidence given to the jury, instead of the facts which appeared to the court of trial to be established by the evidence. This court held that the bill of exceptions was not well taken, and that it could not reverse a judgment refusing a new trial, except upon a certificate of the facts proved. The ground of the decision was, that some of the witnesses may have been discredited in the court below, and that this court might form its opinion upon testimony which was' there discredited. Judge Roane, delivering the opinion of the court, said: “It does not follow that a judge believes every witness who gives evidence before him, as he may well hesitate to do from the manner of testifying and other extraneous circumstances; nor can he do it where they conflict with one another. It is evident, therefore, that in this case the opinion of this court might be founded upon the testimony of witnesses who were discredited both by the jury and the court below. This court only sees the evidence on the record, and on paper the credit of every witness is the same, who is not positively impeached. ’ ’ This case has never been overruled or questioned.

Subsequent cases, however, have established a modification of the doctrine of Bennett v. Hardaway, but entirely consistent with it in principle, which has long been the settled rule of this court. This rule is, that *a bill of exceptions to the refusal to grant a new trial, may be dealt with by rejecting all the evidence on the part of the exceptor, and considering the case upon the evidence of the other party alone. In the application of this rule, the evidence of the party who prevailed below, is to be taken as true. If, testing the case upon this rule, the judgment cannot be sustained, it will be set aside. Ewing v. Ewing, 2 Leigh 337; Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Vaiden’s Case, 12 Gratt. 717; Butts’ Case, 14 Gratt. 613; and many-other cases. It is obvious that this rule does not encounter the difficulty which led to the decision in Bennett v. Hardaway. No question of the credit of the witnesses can arise. The exceptor gives up his own evidence, bringing it to the same thing as if he had not introduced a witness: and he admits the truth of the evidence adduced by the other side. So, in every case where a new trial is asked from an appellate court, upon a certificate of the evidence only, the party who asks it must give up his own evidence, if any, and admit the truth of his adversary’s evidence, if any. Otherwise, he must encounter the difficulty upon which the decision in Bennett v. Hardaway proceeded.

The same principles apply, though all the evidence was adduced by one side. Carrington v. Bennett, 1 Leigh 340, and Green v. Ashby, 6 Leigh 135, were cases of that sort. In the former case, Bennett, as as-signee, brought an action on a bond against Carrington, to which the defence was that the bond was given for money won at unlawful gaming. The plaintiff proved the bond and the assignment, and this was his only evidence. The defendant introduced a witness to sustain his defence, and the jury found for the plaintiff. A motion was made for a new trial and overruled. There was a question in this court, whether the bill of exceptions should be construed as *a certificate of the evidence only, or as a certificate of the facts proved. Judge Carr regarded it as a certificate of evidence only; Judges Green and Coalter considered it as a certificate of facts. Judge Carr held, that this court could not review the judgment upon this certificate, upon the ground that the court and jury might have discredited Carrington’s witness. He said: 1 ‘But how do we know that the court and jury believed this witness? They may have discredited his whole tale. They saw and heard him, and there may have been that in his manner (though wholly hidden from us) which proved to them that he was wholly unworthy of credit. ” * * * “ And if, upon the strength of what this witness swore, we reverse the judgment and set aside the verdict, may not our opinion (in the words of Judge Roane) be founded upon testimony discredited by the jury and court below?”

It will be observed that, in the view of the bill of exceptions taken by Judge Carr, Carrington v. Bennett was precisely like the case before us. All the evidence upon the issue had been introduced by the ex-ceptor, and there was no intimation in the record as to whether the court did or did not give credit to it. There was no inconsistency in the evidence; the exceptor was asking the court, as in the present case, to assume that the evidence of his witness was entitled to credit: being the only evidence in the cause and not impeached; and to hold that the court and jury had drawn the wrong conclusion from it.

Green v. Ashby was a converse case. The bill of exceptions to the refusal of the court to grant a new trial, certified the evidence given to the jury, the whole of which was introduced by the plaintiff, in whose favor the verdict was rendered. The court held that the bill of exceptions was well taken, and being of opinion that, giving full credit and weight to the evidence of the plaintiff, the judgment was erroneous, it was reversed, *and a venire de novo awarded. President Tucker, after adverting to the general rules in reference to bills/ of exceptions or motions for new trial, said: “Erom this view, we may deduce the rule that no bill of exceptions is properly taken, which submits to this court conflicting evidence, upon the credit of which we must decide, before we can pronounce upon the judgment of the inferior court. And, for a like reason, though the evidence be all on one side; yet, if that which is introduced, is adduced by the excepting party, the bill of exceptions is not properly framed, if it recites the evidence which was given, instead of setting forth the facts: for, peradventure, the court and jury may have discredited the witnesses; and, if so, this court could not interfere. This was the case in Carrington v. Bennett, in the opinion of one of the judges. There was no conflicting evidence upon the real matter of litigation between the parties. All the evidence to that point was on the side of the exceptor; and as the court and jury both decided against him, the court could not, upon its own principles, have ■overruled their opinion upon the weight of the evidence, unless the facts as proved were duly stated. In this the whole court very obviously concurred; though the majority were of opinion, that the question of the truth of the evidence was not submitted; but that the facts were properly certified. ’ ’ Judge Cabell thought the bill of exceptions well taken, because there was no conflict in the evidence, which was all on one side, and “against the party tendering the exception.” From this it is plainly to be inferred that he concurred in the opinion with Carr, J., and Tucker, P., as to a case in which all the evidence was introduced by the excepting party.

The rule, therefore, is, that where all the evidence is introduced by one party, and the verdict is in his favor, the other party may have a refusal to grant a new trial reviewed, upon a bill of exceptions certifying the evidence *only. In such a case, the evidence certified will be considered as true by the appellate court, unless impeached in some way. But, when the verdict is against the party who introduced the evidence, he cannot have the refusal of the court to grant a new trial reviewed upon a certificate of the evidence merely: he must have a certificate of the facts proved, or a certificate that the evidence was considered true by the court of trial; which would amount to a certificate that the facts stated in the evidence were really facts proved. Prom the evidence certified in the former case, and from the facts certified in the latter, the appeliate court will draw such inference as a jury might reasonably draw.

The bill of exceptions to the refusal of the court to grant a new trial was, therefore, not well taken, and we cannot review the action of the Circuit court on that point. It is hardly necessary to say, that in the objection made to the bill of exceptions, I do not intimate any personal distrust of the truth of Mr. Lancaster’s testimony, nor any belief that it was discredited by the jury or the court below. But the law is no respecter of persons, and its rules apply to all men alike.

The result would not have been different, however, if the facts proved had been certified, or if the evidence had been certified to be true. The fair result of the evidence certified, assuming that the witness was entitled to credit, is, that Gimmi delivered the note to Lancaster & Co., on the 30th day of April, to be sold by them as his agents and for his benefit; they knowing that the note was without consideration, and made to raise money; that Lancaster & Co. received the note as Gimmi’s agents, and thereupon, on the same day, paid him the sum of $5,894 17, as an advance on the note, in anticipation of a sale of it to be made by them for him, as his agents; that, on the 1st day of May, they, as agents for Gimmi, made a conditional sale of *the note to Dr. Cullen, at a discount of one and a quarter per cent, a month; the condition being that Cullen should have a right to look into the titie to the property which had been conveyed to secure the payment of the note, and to decline the purchase if not satisfied with it; that on the samé day (May 1st), Lancaster & Co. increased the sum paid to Gimmi to $5,926, 67, that being the net proceeds of the note; that Lancaster & Co. paid for the note with their own money, because, when they offered it to Cullen, on the 1st dajr of May, he told them that he had no money, and objected to taking it on that ground; that they, knowing that Cullen had notes coming to maturity at an early day, told him they would advance the money for him, and did so accordingly; that Cullen looked into the title, was satisfied with it, took the note, and on the 16th day of May the transaction was closed by Cullen paying to Lancaster & Co. the $5,926 67 paid by them to Gimmi on the 1st day of May, as the net proceeds of the note, and also sixteen days’ interest on that sum; that Lancaster & Co. had no authority to buy paper for Cullen; that Lancaster & Co. were never the owners of the note; and that Cullen did not know, either on the 1st day of May, or on the 16th, for whom the note was sold, what was the origin or the consideration of it, or the purpose for which it was made: In all this it is evident that there was no usury, according to the law, as settled in Virginia by the case of Whitworth v. Adams.

I am of opinion, therefore, to affirm the decree. .

Decree affirmed.  