the court have no difficulty in reversing the | until Harris promised to make the endorsejudgment, being of opinion that the law ment allowing him that privilege. The does not warrant a judgment against an alternative is an important part of the conunder sheriff for failing to take appearance bail upon mesne process. As to the other point (which was suggested by the court) we are of opinion, that as the deputy sheriff was in no respect concerned in the merits of the cause, he alone, might obtain a supersedeas. The enquiry of damages must therefore, be set aside, as to all the defendants, as must the proceedings subsequent to the declaration, and the cause is to be proceeded in anew upon the sheriff's return, made upon the writs issued against the two bornes. made. Dandridge v. Harris. October Term. 1794. tract, since it might make a considerable difference to the appellant, whether he should give up his property at a fair valuation, or be obliged to part from it under an execution at three fourths of its value, or, if he replevied, to have it finally sold, perhaps at a much greater loss. It appears, that in the action at common law, brought by Harris upon the agreement, the jury found a special verdict, stating the above facts, as set forth in the bill. The appellant excepted to the opinClai-ion of the court, permitting the appellee to give parol evidence of those facts, and the judgment which was in favor of the appellee was reversed in the district court on account of the parol evidence having been admitted. Whatever might be the decision of a court of law upon the propriety of admitting such proof to contradict a written agreement, there can be no doubt in equity, but that the appellee refusing to make that endorsement, upon his promise to do which the agreement was signed, and availing himself of that agreement as an absolute one, which in fact was only conditionally executed, he was guilty of a fraud, against which the court will relieve, by considering the endorsement as made, and incorporated into the agreement. The case of Walker v. Walker in 2d Atk. 98, which was read at the bar, does not apply; there was no written agreement in that case, and the question was, whether the parol evidence of it could be admitted, under he statute of frauds and perjuries. But there is a case there put by the Chancellor, which does apply. He supposes a person, advancing money, and taking an absolute conveyance, to which, by agreement, there was to be a defeasance, should refuse to execute the defeasance. Chancery Practice-Agreement to Pay Money or house. This was an appeal from a decree of the High Court of Chancery, dismissing the plaintiff's bill, which was, to be let into a specific performance of a contract between the parties, by which the defendant Harris was to repair a mill for the plaintiff, and to receive payment for it, either in money, or in property at a valuation to be made by two honest men, to be chosen, one by each party; and also to be relieved against a judgment at law obtained by the defendant, in consequence of his fraud in not inserting the alternative of payment in the written agreement, nor endorsing it on the back, as he agreed to do at the time of executing that agreement. The answer is a flat denial of every material allegation in the bill. The Chancellor conceiving the answer not to be disproved, dismissed the bill with costs. 327 *The PRESIDENT delivered the opinion of the court. However it might appear to the Chancellor, this court have no doubt, but that the answer is fully disproved by more than two witnesses, who make it evident, that by the original agreement, before the work was begun, Mr. Dandridge was to have the alternative, and that at the time of signing the agreement, he refused his signature this court relieve against such a fraud? A He puts the question; will not it would, and it is very much like the case strong manner of declaring his opinion that before the court. Considering the endorsements then as made, the court proceed to consider what would have been the effect of it, at law. The defendant at law might have pleaded the special matter, that he was always ready to deliver property; *that the plaintiff had neglected to 328 name a had promised to do so, and had refused to person to value it, tho' he have been supported by the proofs in the receive the property; which plea would cause. But for want of this endorsement, the defendant was probably advised that he could not plead this matter, it being dehors the agreement, and therefore he pleaded conditions performed. It is true, the court permitted him at the trial, to give evidence of those facts; and if the jury had upon that evidence decided against him, it would be reasonable that he should be bound thereby, since he would have had a fair trial upon the merits, as much so, as if the endorsement had been made. But that is not the case. The jury found matter suffi cient to excuse him, and the County Court The court have to lament the expenses gave judgment in his favor, which the which have been incurred on the occasion, District Court reversed, the ground of which but are of opinion, that they ought to fall reversal appears in the exceptions to have upon Mr. Harris, the party in fault, who been, the admission of the parol evidence; is adjudged to pay the whole costs at law so that the appellee has committed a fraud and in equity. in withholding the endorsement, and has then availed himself of it, by a legal objection, founded upon the want of that endorsement. If this be not a proper case for relief in equity, we are at a loss to know how one can exist. be It was then objected, that suppose the endorsement made, it was the duty of Mr. Dandridge to tender property immediately, or else he lost the benefit of the alternative. This case from its nature is very different from the common one of a debtor, owing money, who is obliged to seek his creditor in order to pay the debt. Here property was to be delivered, which could not so easily be conveyed from place to p'ace as money, and it would natural to suppose, that it was to be valid and received at the defendant's house; and the rather so, as being more convenient to him, in the selection of property which might have taken place. That an actual tender of property was made prior to that made at Johnson's in November 1787, after the suit was brought, does not appear. And if it had stood upon that alone, the court would have considered Mr. Dandridge as having failed in performing his part of the agreement and consequently that he had forfeited the alternative. But the fact appears to be, that on the 16th of December 1786 (the very day the work was finished,) they settled their accounts, and fixed the balance at £48. Mr. Harris called upon Mr. Dandridge to sign the account, which he refused to do, unless Harris would state that property was to be paid; a circumstance which he constantly adhered to as a part of the original agreement. He then desired Harris to come to him with the writing, and to join in naming per329 sons to value the *property, and to receive it, which Harris promised to do the next day, or the day after, but did Mr. Dandridge then wrote a letter to the father and son, requesting them to come and have the property valued. They did not object, that the property should be carried to them, but declared they would not receive property, and in February 1787, only 41 days from the time the work was finished, and before Mr. Dandridge could probably have time to make a legal tender, Harris brought his suit. not. Upon this view of the case, although Mr. Harris appears to have done his work honestly, and is entitled to his stipulated reward, yet since he has been delayed by what this court calls a fraud in him, and by his endeavours to use that fraud to the disadvantage of the other party, he stands in a very different point of view in equity, from Mr. Dandridge, whose conduct through the whole transaction appears to have been fair and upright, at all times willing to perform his real agree ment. V R, 1 Wash-36 It is objected that the court cannot decree a specific execution in this case, because the valuers were to be named by the parties, and as they did not name them, it is contended that the court cannot do it for them. In the cases of Pleasants Shore & 156,) and Smallwood v. Hansborough, (ante company, and Anderson v. Ross, (ante p. p. 290,) the parties named the valuers in their agreement, and it was decided that others could not be substituted in their stead, upon their refusing in the one case to act, and in the other not having perfected what they were to do. In this case, no persons were named, so as to shew a personal confidence, but a description of their character only; they were to be honest men; and it is supposed, that if the parties should refuse to name, the Chancellor might easily find two men in the state to answer the description. The court are also of opinion, that the Chancellor might appoint a day, before which the parties should name the valuers, or in case either refused, might direct it to be done by two honest men appointed by himself, to value the property, (negroes excepted) and upon delivering, or tendering the property so valued, to the amount of £48, the injunction to be perpetual. But as there is difficulty in such a decree, which may be delayed, if not defeated, by the valuers, whether chosen, or appointed, 330 refusing to act; and since the appellant coming *into equity, must do equity, and it appearing, that he has parted with the property in the mare, which in his bill he suggests to have been have been kept for him by the appellant; accepted by Harris, at £45, and to and the appellant having declared before bringing this suit, that he intended to pay the money, and only contended for the costs, the court is of opinion that the judgment at law ought to remain in force as to the £48, and be injoined as to the costs. We therefore reverse the Chancellor's de cree with costs. The injunction to be made perpetual as to all the costs at law: and to be dissolved as to the balance of the £48, if any shall remain after deducting therefrom the appellant's costs at law and in equity, as well as in this court: and if upon the adjustment of the account of the said £48 against the said costs, any balance shall remain due to the appellant, in that case the injunction to be perpetual as to the £48, and the appellee decreed to pay such bal ance. Duval and Marshall for the plaintiff in error. 561 Campbell for the defendant. N. B. The arguments at the bar are omitted being noticed much at large by the court. Nicolas v. Fletcher. October Term, 1794. Must Forthcoming Bonds--Motion on-- Defendant This was an appeal from a judgment of the District Court of Petersburg, affirming a judgment of the County Court of Amelia, rendered in favor of the appellee, upon a forthcoming bond, endorsed by the sheriff, "that the property therein mentioned, had not been delivered on the day appointed for the sale, to be dealt with according to law." An exception was taken by the defendant below, that the plaintiff did not prove a non-performance of the condition, by good and sufficient testimony. defendant to Marshall for the appellee. It was not necessary for the plaintiff below to prove a forfeiture, or breach of the condition, but it was incumbent on the prove performance. On the contrary, the sheriff has returned upon the bond, that the property was not delivered. The court affirmed the judgment. 331 *Stott & Donaldson v. Alexander & Co. October Term, 1794. Foreign Bill of Exchange-Notice of Protest-Within What Time Should Be Given-Statute. +- If notice of the protest of a foreign bill of exchange be given within eighteen months from the date of the bill, it will be sufficient under the Act of Assembly. unless there be particular circumstances to warrant a departure from the general rule. This was an action of debt, brought by the appellants against the appellees, as endorsers of a protested bill of exchange drawn by Robert Morris of Philadelphia, in the state of Pennsylvania, which was endorsed to the appellants in this state. The declaration is upon the act of Assembly. On the plea of nil debet, the jury found a special verdict, "that the bill, with three endorsements thereon, two of which are *Forthcoming Bonds-Motion on-Defendant Must Prove Performance.-In Wheeling v. Black, 25 W. Va. 285, the principal case is cited to the point that in an action on a bond the defendant must allege and prove performance. Same--Return of Sheriff-Conclusiveness.-In Adler v. Green. 18 W. Va. 206. the principal case is cited to the point that the uniform practice in Virginia has been to contradict the sheriff's return of feited" upon forthcoming bonds. See collection of cases in foot-note to Cole v. Fenwick, Gilm. 134, among others, the principal case. See monographic note on "Statutory Bonds" appended to Goolsby v. Strother, 21 Gratt. 107. erased, was duly protested in London on the 10th of September 1787, and that notice thereof was given to the defendants, on, or about the latter end of June 1788. If this be a reasonable notice, then they find for the plaintiffs, otherwise for the defendants." The judgment of the County Court, which was in favor of the appellants, was reversed in the District Court, because the verdict was defective, in not finding facts sufficient to enable the court to judge of the reasonableness of the notice of the protest therein mentioned. The verdict was set aside, and the cause by consent of parties retained for a new trial; from which judgment, Scott and Donaldson appealed. Ronold for the appellants. There is but a single question in this cause, which arises upon the construction of the act of Assembly, of the 22d Geo. II, C. 27.* The first branch of the law would give the holder of a protested bill of exchange a right to recover interest at the rate of 10 per cent per annum for any unlimited time, if it were not restrained, by the second branch of the section, to 18 months; and from this it 332 is evident, that the object of the legislature was merely to regulate the interest to be paid upon protested bills, and to fix it at 10 per cent per annum for 18 months, tho' notice be not given of the protest within that time; and yet it is contended, that for the want of notice, during a period far short of that time, the holder is to forfeit both principal and interest. This construction seems to be repugnant to the plain meaning of the law, and involves a contradiction not fairly to be attributed to the legislature. If the exposition, for which I contend, be right, then it follows, that the jury having ex18 months, the appellants ought to recover pressly found, that notice was given within under this act. But if notice short of that time be necessary, still the judgment of the District Court is erroneous, because, what is reasonable notice, is a point of law, and is properly to be decided by the court. This is clearly settled by the modern dedraw an additional argument to prove, that cisions in England, and from hence, I the act of Assembly was intended to change the law of merchants upon the subject of giving notice. For would it not be absurd, that in this country, it should be necessary to give notice of a protest by the following post, as the practice is in England. Such *The words of the law are. "That where any bill of exchange is or shall be drawn for the payment of any sum of money, in which the value is, or shall be expressed to be received, and such bill is or shall be "for-protested for non-acceptance or non-payment. the same shall carry interest from the date thereof. after the rate of 10 per centum per annum until the money, therein drawn for, shall be fully satisfied and paid; but lest any person, having such bill, should, for the sake of the said interest, delay negociating the same. or if after it shall be protested, shall not demand payment of the drawer or endorser thereof. it is hereby declared that no person whatsoever shall pay more than 18 months interest from the date of any bill to the time it shall be presented protested to the drawer or endorsers thereof."-Note in Original Edition. The principal case is cited in Thompson v. Cumming, 2 Leigh 324. 327. See monographic note on "Bills, Notes and Checks" appended to Archer v. Ward, 9 Gratt. 622. a regulation might be proper and convenient him, so that he may pay it off, he will be in that country, the communication from excused the 10 per cent for a longer period place to place being uniform and constant. than 18 months. The object of the law was But our situation, at the time when this to fix the interest which the holder should law passed, and long after, and when too receive, and to lay him under a certain our commerce was confined to England, was condition to entitle him to that interest. very different. Our intercourse with that That condition is, that within a certain country, was not only confined in a great time he present the bill protested to the measure to particular times of the year, but drawer. But as to notice of protest required various accidents might happen, to prevent by the custom of merchants, it is left unso prompt a notice from being given, and affected by the act of Assembly, which the adoption of such a rule here, would have never could have intended to alter a general proved so mischievous, that it would have law prevailing in a country with which we put an entire stop to the negotiation of principally traded. bills of exchange, which the legislature (in the preamble to the law) declare it was their intention to "render equal to cash in the payment of debts." Wickham for the appellees. We all agree as to the rule established by the law of merchants, but it is contended that the act of assembly was made to change that rule, and the necessity of that change is stated and relied upon to prove such an intention. On the contrary I should conceive, that the inconvenience which would result from such an innovation in the custom of merchants would be sufficient to induce the court to explode such a construction, unless the law be too clear and express to be got over. The drawer of a bill tacitly agrees to pay the bill, if dishonoured, provided he has timely notice of the protest and the holder tacitly agrees to give him that notice. 333 *The custom of merchants having established this principle, such an implied contract is always understood between the parties, as certainly, as if it were expressed. The inconvenience resulting from a contrary principle, is as strongly exemplified in this case, as in any which could be thought of. The drawer lives in a state, where this rule prevails. If the plaintiffs in this cause can, without regarding that rule, recover against the indorser, -the indorser, in an action against the drawer, will be told, that for want of due notice the drawer is discharged. Who would be mad enough to draw bills, if at any distance of time, they might be returned upon him protested, after all accounts were settled between him and the drawee, and after he had otherwise applied those funds, which as a prudent man, he would retain so long as the fate of his bill was in suspence. There is a great difference between giving notice of the protest of a bill, and demanding payment. The first is necessary by the custom of merchants, to entitle the holder to the principal sum; the latter, to entitle him to the extraordinary interest given by the act of Assembly, which last (beyond 18 months,) he loses unless by presenting the bill protested to the drawer or indorser within that time, he affords them an opportunity of taking it up. It may so happen, that the drawer may have notice of a protested bill circulating in some part of the world, and yet, if it be not shewn to The rule in England, as to the time of giving notice, is not as Mr. Ronold has stated it; it is regulated by the circumstances of each particular case, and is a subject which the jury must decide. I admit, that a different rule prevails in cases of inland bills of exchange. in England, what is due notice in the case Campbell on the same side. I admit that of inland bills of exchange is a point of tion from one place to another, and the unilaw, because the certainty of communicaform decisions of juries upon that point, have SO fully ascertained and settled it, that the judges are as competent *as the jury to decide upon it. The adoption of a similar practice in this country would be unjust and preposterous even in the cases of inland bills. 334 As to the main question, there is one reason to be given for the custom of merchants, which has not been much relied upon, and which has always had considerable weight with me, independently of those stated in the books. It is this: a merchant who draws a bill, must, if he mean to be punctual, and to preserve his credit, keep unemployed such a portion of his capital, as will enable him to take it up, should it return protested. If he may be kept in suspence as to its fate, for any length of time, (even 18 months) he must either retain that capital unemployed, during all that time, which would be very injurious to commerce, or he must part with it, and run the risk of being called upon unexpectedly to pay a protested bill, at a time when he may be unprepared to do so. It can hardly be believed, that the legislature could have intended to fetter commerce by the establishment of a principle unknown in any trading country, and particularly in that, with which we were solely connected. The law requires a presentation of the bill to the drawer or endorser, not as being necessary to authorise the holder to recover the amount of the bill, but to entitle him to 10 per cent per annum beyond 18 months. As to notice of the protest, the act is entirely silent, leaving that subject as it stood under the general law of merchants. Ronold in reply. The legislature certainly intended to alter the custom of merchants upon his subject, and to adapt it to the situation of his country, by declaring that 18 months should be considered as the time within which notice of protest should be given. Those persons whose recollec tion will carry them back to the period when this law was made, will remember, that protested bills passed from hand to hand as cash and formed a circulating medium of commerce. The endorsements were never dated, and the bills sometimes remained in circulation here, for many months before they were remitted. This practice the legislature meant to regulate, having a view to the interest of all parties, and to limit the damages to a certain amount. Mr. Wickham submitted another question to the court, which was; whether an action of debt upon this bill, (which was drawn out of this state) could be supported under the act of Assembly? 335 *Mr. Ronold answered, that it might lie against the present appellees, who made the indorsement in this state, upon the principle, that every indorser is considered as a new drawer. The PRESIDENT delivered the opinion of the Court. Some general questions have been discussed at the bar, upon the law respecting protested bills of exchange, such as; whether the act of Assembly has not done away the whole custom of merchants on the subject of notice, and whether the holder may not, upon notice at any time however remote, recover his principal money, although he may lose his damages. With these points, the court think it unnecessary to meddle, except so far as they may concern the present case. Southall v. M'Keand, Mayo, &c. October Term, 1794. Issue Out of Chancery-Effect Where Trial Judge Cer- The principal case is reported in Wythe 95. It is cited in Turpin v. Thomas, 2 Hen. & M. 142; Lyons v. Brown, Gilm 120. *Issue Out of Chancery-Effect Where Trial Judge Certifies the Verdict to Be against Evidence. On this question the principal case is cited in foot-note to Pleasants v. Ross, 1 Wash. 156; foot-note to Ross v. Pynes, 3 Call 568; Pryor v. Adams, 1 Call 392: Grigsby v. Weaver, 5 Leigh 205, 210; Lavell v. Gold, 25 Gratt. 476; Henry v. Davis. 7 W. Va. 716. Same-Discretion-Review by Appellate Court-In Miller v. Wills, 95 Va. 351. 28 S. E. Rep. 337, it is said. while directing an issue to be tried by the jury is a matter of discretion in a court of equity, it is not a mere arbitrary discretion but must be exercised The act of Assembly does not seem to interfere with the negociation of bills, but taking them up as negociated, and protested, proceeds to give the remedy for recovering their amount, leaving the point of their negociation to be decided upon the particular circumstances of each case. As to the diligence necessary to be used by the holder in giving notice of the protest, since that depended upon the situation of the parties, and of the countries between which the exchange was made, the legisla- upon sound principles of reason and justice; and a ture, contemplating those circumstances, mistake in this exercise is ground for an appeal. seem to have thought 18 months a reasona- and the appellate court will judge whether such ble time for the whole negotiation, and for discretion has been properly exercised in the the giving of notice, by allowing full dam-given case. Stannard v. Graves, 2 Call 369 (see note): ages in case the notice be given within that time. There may be particular circumstances, which would render a departure from this general rule reasonable and proper; and when they occur, the general rule may not be adhered to; but no such circumstances are stated in the present case. The bill is dated in Philadelphia on the 15th of March 1787,-endorsed in Virginia, but at what time does not appear. It was presented for acceptance about the 10th of June, and protested in September in the same year. Notice was given to the defendant in the latter end of June 1788, all within 15 months from the date of the bill, and the question submitted by the jury is, whether this be reasonable notice. No facts being stated take this case out of the general rule Core mentioned, and established by the Reed v. Cline, 9 Gratt. 136 (see note); Wise v. Lamb. 9 Gratt. 294 (see note); Beverley v. Walden, 20 Gratt. 147 (see note). And likewise is the action of a court of equity, in approving the verdict of a jury upon an issue and decreeing in accordance therewith. or in disregarding it and decreeing against it, equally the subject of review by the appellate court. Southall v. M'Keand, 1 Wash. 336. In Love v. Braxton, 5 Call 542, it is said, there was no action for directing the issue as the evidence all stood in the record, and there was neither conflict among the witnesses, nor imputation upon their credit. Therefore, as the chancellor was justly dissatisfied with the verdict, he was at liberty to set it aside, and decide the cause himself. Citing Southall v. M'Keand, 1 Wash. 336. See monographic note on "Issue Out of Chancery" appended to Lavell v. Gold, 25 Gratt. 473. +When Occupant of Land Is Entitled to Improvements.-In Effinger v. Hall, 81 Va. 103, it is said, |