Brown v. Barry. 3 D.

ERROR to the circuit court for the District of Virginia. An action of debt was brought in that court by the defendant in error, as indorsee of a bill of exchange drawn in Virginia by the defendant, for the sum of 7701. "for value in current money here received," and dated February 11, 1793, payable at sixty days' sight. The declaration averred a protest for non-payment on the 21st day of June, 1793, and concluded, "whereby, and by force of the act of the general assembly of the commonwealth of Virginia, in that case made and provided, an action accrued," &c.

[ *366 ] *To this declaration there was a plea of nil debet, issue was thereupon joined, and, after a trial, the jury found a special verdict in the following words:-"We of the jury find, that the consideration given for the bill of exchange in the declaration mentioned, was the undertaking of Andrew Clow & Co., a party interested in receiving the same, to deliver to James Brown, the drawer thereof, other bills of exchange, in sterling money, to the same amount. the court shall be of opinion that the consideration above-mentioned did not come within the operation of the fourth section of the act of assembly of the 28 George 2, c. 2, entitled 'an act to amend an act entitled, an act declaring the law concerning executions, and for the relief of insolvent debtors, and for other purposes therein mentioned,' then we find for the plaintiff, $4,404.42 damages;-if otherwise, we find for the plaintiff $3,303.82 damages." To the special verdict, this memorandum was added: "And it is agreed by the parties, that if in the opinion of the court, the plaintiff could not legally give parol testimony to prove that the bill in the declaration mentioned, was in fact drawn for other consideration than current money, the verdict shall be changed from the greater to the less sum found in the said verdict." Whereupon judgment was rendered for the sum of $4,404.42, with interest at five per cent. from the day of rendering the judgment, and costs.

From the judgment of the circuit court, the present writ of error was brought, a variety of exceptions were taken to the record, and after argument by Lee, attorney-general, for the plaintiff in error, and by E. Tilghman, for the defendant, the opinion of the court was delivered by the chief justice, in the following terms.

[ * 367 ]

* ELLSWORTH, C. J. In delivering the opinion of the court, I shall briefly consider the exceptions to the record, in the order in which they have been proposed at the bar.

I. The first exception states, that the act of the legislature of Virginia, passed in the year 1748, on which the action is founded as an action of debt, was not in force when the bill of exchange was

Brown v. Barry. 3 D.

drawn, to wit, on the 11th of February, 1793. The question is, whether two subsequent acts of the legislature of that State passed at a session in 1792, namely, one of November, declaring the repeal of the act of 1748, and another of December, declaring a suspension of that repeal until October, 1793, did in fact repeal, and leave repealed, the said act of 1748. This it is contended must have been their effect, as ascertained and limited by two other statutes, namely, one of 1789, declaring that the repeal of a repealing act shall not revive the act first repealed; the other of 1783, declaring that statutes should take effect from the day on which they in fact passed, unless another day was named. It must be taken, however, that the act of 1748 remained in force, and that until after the bill was drawn, for the following reasons: 1. The act suspending the repealing act of November, 1792, is not within the act of 1789, which declares that the repeal of a repealing act shall not revive the act first repealed. The suspension of an act for a limited time is not a repeal of it; and the act of 1789, being in derogation of the common law, is to be taken strictly. 2. The repealing act, and the act suspending it, acts of the same session, are, according to the British construction of statutes, and the rule which appears to have prevailed in Virginia, parts of the same act, and have effect from the same day, and taken together as parts of the same act, they only amount to a provision that a repeal of the act of 1748 should take place at a day then future. The act of 1785, declaring the commencement of acts to be from the day on which they in fact pass, does not apply here, for by the third section of the act of 1789, it is provided, that when a question shall arise whether a law passed during any session changes or repeals a former law during the same session, which is the present case, the same construction shall be made, as if the act of 1785 had never been passed; that is, both acts being of the same session shall have the same commencement on the first day of the session. 3. The manifest intent of the suspending act was, that the act repealed by the repealing act, should continue in force until a day then future, the first of October, 1793. It could have had no other intent. And the intention of the legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding. Thus the act of 1748 clearly was in [368] force when the bill was drawn.

II. The second exception states that there is no averment of a protest for non-acceptance of the bills.

This exception is invalid on two grounds. 1. It does not appear that the bill was not accepted, so that there could have been such protest; and if accepted it would have been immaterial for the plain

Brown v. Barry. 3 D.

tiff to show that it was so, as his right of action could in no measure depend on that fact. The silence of the declaration as to the question whether the bill was accepted or not, does not vitiate it; the action being on a protest for non-payment. 2. As to bills drawn in the United States and payable in Europe, of which this is one, the custom of merchants in this country does not ordinarily require, to recover on a protest for non-payment, that a protest for non-acceptance should be produced, though the bills were not accepted. I say the custom of merchants in this country; for the custom of merchants somewhat varies in different countries, in order to accommodate itself to particular courses of business, or other local circumstances.

III. The third exception states, that the judgment is for too large a sum, the bill having been taken for sterling, when by the act of 1775, it ought to have been taken for current money of Virginia. That act requires, that if the consideration of a bill be a preëxisting currency debt, or be current money paid at the time of the draft, the bill shall express the amount of the debt, or currency paid, which was the real consideration. And that on failure so to do, the bill, though it may be expressed for sterling, as in this case, shall be taken to be for current money. The bill is thus expressed: "For value received in current money," but it does not say how much. The jury however, have by their special verdict, ascertained that the real consideration of the bill was an engagement to draw other sterling bills. Now it is clear, that the consideration in fact, though variant from the face of a bill, is regarded by the act, and must be sought for, to give the act effect. Upon inquiry the jury have found the consideration to be such as to take the case out of the statute. In this bill then, the words added to value received, namely, " in current money," were immaterial and without effect; and therefore the words in the declaration, as descriptive of the bills, might be disregarded by the jury and the court.

IV. The fourth exception states, that the action is for foreign money, and its value is not averred. The verdict cures this. The jury have found the value, their verdict being in dollars. The value of sterling money, here sued for, had been long ascertained in Virginia by statute, and was certain enough.

[ *369 ]

*V. The fifth exception states, that the declaration is in the debet, as well as the detinet, though for foreign money. The reason of the rule, that debet for foreign money is ill, is the uncertainty of its value; and, therefore, both the answers given to the fourth apply to this present exception.

Let the judgment of the circuit court be affirmed.

5 II. 295.

ERROR from the circuit court for the district of Massachusetts. This cause and several others were stricken from the docket, the record not showing that the parties were citizens of different States. See Bingham v. Cabot, 3 D. 382.

A writ of error must be returned and entered at the return term. If a term intervene, the objection is fatal, and the error is not capable of being removed by any amendment.

ERROR from the circuit court for the district of Georgia. Judgment had been rendered in the court below, for the defendant in error, on the 15th of November, 1796. On the 2d of January, 1797, the writ of error was sued out, and lodged in [*372] the office of the clerk of the circuit court; and it was served, with the proper notices, on the defendant in *error, upon [*373 ] the 14th of January, 1797; but the affidavit of service was

not made until the May following; nor was the writ even transmitted, or returned, until the present term.

THE COURT observed, that there was no error in point of [*377 ] fact; nor any clerical error to amend. The writ bears the date when it was actually sued out and lodged in the office; there is, therefore, nothing on the record by which it can be amended; and the objection is fatal.

The writ of error was, therefore, non-pros'd.

Hollingsworth v. Virginia. 3 D.

[*378]

*FEBRUARY TERM, 1798.

HOLLINGSWORTH et al. v. VIRGINIA.

3 D. 378.

The eleventh amendment of the constitution deprived this court of jurisdiction over suits against a State by citizens of another State; and suits pending at the time of its adoption can be no further prosecuted.

THE decision of the court, in the case of Chisholm, Executor, v. Georgia, (2 D. 419,) produced a proposition in congress, for amending the constitution of the United States, according to the following

terms:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State."

The proposition being now adopted by the constitutional number of States, Lee, attorney-general, submitted this question to the court: Whether the amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another State?

W. Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired, in relation to all suits instituted previously to the adoption of the amendment.

[*382] THE COURT, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign State.

1 P. 110.