Bill of Exceptions. instead of the points excepted to, as productive of no good, but of much inconvenience. Gregg v. The Lessee of Sayre and Wife, 8 Peters, 244. should misstate the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and by being made known at the moment, 8. A bill of exceptions to evidence cannot be would often enable the court to correct an erro- taken in the district court of the United States neous expression, so as to explain or qualify it in Louisiana, when the case was not tried by a in such a manner as to make it wholly unexcep-jury. Field et al. v. The United States, 9 Peters, tionable, or perfectly distinct. Carver v. Astor, 182. 4 Peters, 1. 9. In the course of the trial of the cause in the circuit court, the counsel for the plaintiff objected to a question put by the defendant's counsel to a witness, as being a leading question. By the supreme court:-Although the plaintiff's counsel objected to this question, and said that he excepted to the opinion of the court, no exception is actually prayed by the party and signed by the judge. This court cannot consider the exception as actually taken, and must suppose it was abandoned. Scott v. Lloyd, 9 Peters, 418. 3. On the trial of a cause in the district court of the United States for the northern district of New York, exceptions were taken to opinions of the court delivered in the course of the trial; and some time after the trial was over, a bill of exceptions was tendered to the district judge, which he refused to sign, objecting to some of the matters stated in the same; and at the same time altering the bill then tendered, so as to conform to his recollection of the facts of the case, and inserting in the bill-all that he deemed | proper to be contained in the same: which bill 10. It is to be understood as a general rule, of exceptions, thus altered, was signed by the that where there are various bills of exceptions judge. On the motion of the party who had filed according to the local practice, if in the tendered the bill of exceptions, a rule was progress of the cause the matters of any of granted by the supreme court on the district these exceptions become wholly immaterial to judge, to show cause why he did not sign the the merits, as they are finally made out on the bill of exceptions as first tendered to him. To trial, they are no longer assignable as error, howthis rule the judge returned his reasons for re-ever they have been ruled in the court below. fusing to sign the bill so tendered, and stating that he had signed such a bill of exceptions as he considered correct. By the court:-This is not a case in which the judge has refused to sign a bill of exceptions. The judge has signed such a bill as he thinks correct. The object of the rule is to oblige the judge to sign a particular bill of exceptions which has been offered to him. The court granted the rule to show cause; and the judge has shown cause, by saying he has done all that can be required from him, and that the bill offered is not such a bill as he can sign. The supreme court cannot order him to sign such a bill. Ex parte Martha Bradstreet, 4 Peters, 102. Greenleaf's Lessee v. Birth, 5 Peters, 132. 11. Exceptions taken on the trial of a cause before a jury, for the purpose of submitting to the revision of this court questions of law decided by the circuit court during the trial, cannot be taken in such a form as to bring the whole charge of the judge before this court; a charge in which he not only states the results of the law from the facts, but sums up all the evidence. Ex parte Crane and another, 5 Peters, 190. 12. By the ordinary course of things, on the trial of a cause before a jury, if an objection is made and overruled to the admission of evidence, and the party does not take any exception, he is understood to waive it. The exception need 4. The law requires that a bill of exceptions not, indeed, then be put out in form, or written should be tendered at the trial. If a party in-out at large, and signed; but it is sufficient if it tends to take a bill of exceptions, he should give notice to the judge at the trial; and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may file it. A practice to sign it after the term must 13. It is no ground for a bill of exceptions be understood to be matter of consent between that a court refused to instruct the jury on a the parties, unless the judge has made an ex-point of law, which was so stated, that it inpress order in the term, allowing such a period to prepare it. Ibid. 5. The whole charge of the circuit court was brought up to the supreme court with the record. By the court: This is a practice which this court have uniformly discountenanced; and which the court trusts a rule made at the last term will effectually suppress. Magniac v. Thompson, 7 Peters, 348. 6. A bill of exceptions ought to state that evidence was offered of the facts on which the opinion of the supreme court was prayed. Vasse v. Smith, 6 Cranch, 226; 2 Cond. Rep. 353. 7. The supreme court have frequently remonstrated against the practice of spreading the charge of the judge at length upon the record, is taken, and the right reserved to put it in form within the time prescribed by the practice or rules of the court in which the cause is tried. Poole's Lessee v. Fleeger's Lessee, 11 Peters, 185. volved an opinion on matters of fact, as when the opinion of the court was prayed, "under the circumstances of the case," which were not found as facts. The United States v. Burnham, 1 Mason's C. C. R. 57. 14. Where a bill of exceptions is taken at the trial, a motion for a new trial will not be enter tained, unless the bill of exceptions is waived. Cunningham v. Bell, 5 Mason's C. C. R. 161. 15. Where a cause is removed from an inferior to a superior tribunal, by writ of error, no fact, not stated in the bill of exceptions, will be noticed. Pendleton, Ex'r. of Pendleton, v. The United States, 2 Brockenb. C. C. R. 75. 16. It is not necessary that a bill of exceptions should be formally drawn and signed before the General Principles. trial is at an end. The exception may be taken at the trial, and noted by the court, and may, afterwards, during the term, be reduced to form and signed by the judge. But in such cases it is signed nunc pro tunc, and purports on its face to be the same as if actually reduced to form, and signed during the trial. It would be a fatal error if it were to appear otherwise. Walton v. The United States, 9 Wheat. 651; 5 Cond. Rep. 717. 17. The purpose of bringing the whole evidence, instead of the facts proved by the evidence, before the supreme court, for review, by bill of exceptions or otherwise, is, to say the least, extremely inconvenient. The party cannot, by such a practice, take advantage of any omission in the judge's charge, under a general stated in it. Dunlop v. Munroe, 7 Cranch, 242; 2 Cond. Rep. 484. 23. It is only where the error alleged to have occurred in the court below does not appear in the record, that a bill of exceptions, stating the same, is required. Macker's Heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep. 334. BILL IN EQUITY. See CHANCERY AND CHANCERY PRACTICE. exception to it. If he wishes the instruction of BILLS OF EXCHANGE AND PROMISSORY the court to the jury on one point omitted in the charge, he must suggest it, and request the judge's opinion on it. Armstrong v. Toler, 11 Wheat. 258; 6 Cond. Rep. 298. 18. Where the burthen of proof of certain specific defences set up by the defendant is on him, and the evidence presents contested facts, an absolute direction from the court that the matters produced and read in evidence on the part of the defendant, were sufficient in law to maintain the issue on his part, and that the jury ought to render their verdict in favour of the defendant, is erroneous; and a judgment rendered upon a verdict purporting to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions taken at a trial before the jury upon the matters in issue; no such trial ever having taken place, and the case having assumed that shape by the agreement of the parties, in order to take the opinion of the supreme court upon certain questions of law. United States v. Tillotson, 12 Wheat. 180; 6 Cond. Rep. 507. 19. A special verdict was found by the jury, subject to the opinion of the court on the construction of a deed which was referred to, but not contained in the verdict. A deed formed a part of a bill of exceptions taken to the opinion of the court, on a motion subsequently made for a new trial. The supreme court cannot know, judicially, that this is the same deed which is referred to in the verdict, or what are the other evidences of title which are connected with it. M'Arthur v. Porter's Lessee, 1 Peters, 626. 20. New York. - Although the law of the state requiring the supreme court to decide on a bill of exceptions, before a writ of error is brought, does not govern the practice of the circuit court of New York, yet a bill of exceptions was received as a substitute for a case on a motion for a new trial. Brewster v. Gelston, 1 Paine's C. C. R. 426. NOTES. 1. Where the endorsee of a bill of exchange, whether as agent or owner, returns it after protest to the last endorser, the latter may sue upon it in his own name, and at the trial strike out the last endorsement, although it be in full. And prior blank endorsements may be filled up at the trial, so as to correspond with the declaration. And where both these were omitted to be done, the supreme court, on error, refused to reverse the judgment, considering it an objection of form, and cured by the thirty-second section of the judiciary act. Jacob Barker v. United States, 1 Paine's C. C. R. 156. 2. The mere lapse of three months, before presentment of a bill drawn at New York, on Liverpool, is not evidence of delay, especially during war. Ibid. 3. Where the action was commenced on the non-acceptance of the bill, and after its nonpayment, but before notice of non-payment had been received, and a count on the protest for non-payment was inserted in the declaration, the twenty per cent. damages were held recoverable. Ibid. 4. The holder of a bill is entitled to recover 21. A bill of exceptions may be taken to the at the rate of exchange at the time of notice of opinion of the court in a charge to the jury; so the protest being given. This is the settled law also if, in a proper case, the court refuse to give in New York. The advantages of the rule of an opinion to the jury. Smith et al. v. Carring-liquidation at the par of exchange, are certainty ton et al., 4 Cranch, 62; 2 Cond. Rep. 26. 22. Every bill of exception must be considered as presenting a distinct substantive case, and the court is to decide only on the evidence and convenience, with many others. Ibid. 5. Bills of exchange, payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded General Principles. at their maturity. Townley v. Sumrall, 2 Peters, 178. 6. The deposit of a bill in one bank, to be transmitted to another for collection, is a common usage, of great public convenience, the effect of which is well understood; and the duty of a bank receiving such a bill for collection, is precisely the same, whoever may be the owner thereof; and if it was unwilling to undertake the collection without precise information on the subject, the duty ought to have been declined. The Bank of Washington v. Triplett & Neale, 1 Peters, 30. 7. By failing to demand payment of a bill held for collection, the bank would make the bill its own, and would become liable to its real owner for the amount. Ibid. 31. 8. The allowance of days of grace for the payment of a bill of exchange or note, is now universally understood to enter into every bill or note of a mercantile character, and so to form a part of the contract, that the bill does not become due until the last day of grace. Ibid. 9. It is the usage of the Bank of Washington, and of other banks in the District of Columbia, to demand payment of a bill on the day after the last day of grace; and this usage has been sanctioned by the decisions of the supreme court. This usage is equally binding on parties who were not acquainted with its existence, but who have resorted to the bank governed by such usage, to make the bill negotiable. Ibid. 32. 10. The usage of the place on which a bill is drawn, or where payment is demanded, uniformly regulates the number of days of grace which must be allowed. Ibid. 34. 11. A merchant has a right, by the usage of trade, to draw on effects placed in the hands of the drawer by shipment; and the consignee must pay the bills, if the shipment places funds in his hands. Schimmelpennich v. Bayard, 1 Peters, 285. 12. The liability of parties to a bill of exchange or promissory note, has been fixed on certain principles, which are essential to the credit and circulation of such paper. These principles originated in the convenience of commercial transactions, and cannot now be departed from. Bank of the United States v. Dunn, 6 Peters, 51. 13. It is a well-settled principle, that no man who is a party to a negotiable instrument, shall be permitted by his own testimony to invalidate it. Having given it the sanction of his name, and thereby added to the value of the instrument by giving it currency, he shall not be permitted to testify that the note was given for a gambling consideration, which would destroy its validity. Ibid. 14. An endorsement, in blank, on a promissory note or bill of exchange, authorizes the filling it up, either before or after action brought, with the name of the party for whose use the suit may be brought; and if the holder, though the endorsee is a citizen of another state, he may sue on the note in the courts of the United States, although the drawer and drawee of the note were citizens of the same state, and not of the state of which the plaintiff is a citizen. Evans v. Gee, 11 Peters, 80. 15. The bona fide holder of a bill of exchange, has a right to write over a blank endorsement, directing to whom the bill shall be paid, at any time, before or after the institution of a suit. This is the settled doctrine in the English and American courts; and the holder, by writing such direction over a blank endorsement, ordering the money to be paid to a particular person, does not become an endorser. Ibid. 16. E. consigned a cargo to the plaintiffs, to whom he was indebted; and before or on the sailing of the vessel for Copenhagen, the bills of lading for the same were assigned by him to Gardner & Co., who sent the defendant, as their agent, to communicate the same. The cargo was sold by the plaintiffs, and merchandise shipped to Gardner & Co., in return, and the defendant drew the bill, upon which this suit was instituted, in favour of the plaintiffs, on Gardner & Co., for a balance claimed by them, being the debt due them by E., which bill Gardner & Co. refused to pay. In an action by the payee against the drawer, the consideration of the bill may be inquired into. Ryberg et al. v. Snell, 2 Wash. C. C. R. 294. 17. A bill of exchange was drawn by a public sub-agent, on the general agent of the United States, and payment of the same was at first refused; but it was afterwards made to the defendant; and soon after, it having been discovered that the sub-agent who drew the bill was unfaithful, notice was given by the general agent to the defendant, who held the money, as administrator of the payee, not to pay it over, as it was claimed by the United States. The court said, though a bill drawn for value received, might, prima facie, be considered as drawn upon a consideration; yet, when a strong ground is laid to show a want of consideration, the defendant ought to show that value was given for the bill. The United States v. Price's Adm'r., 2 Wash. C. C. R. 460. 18. In an action on a bill of exchange, which had been protested for non-payment, it is not necessary to aver, in the declaration, that the bill had been protested for non-acceptance. Brown, Plaintiff in Error, v. Barry, 3 Dall. 365; 1 Cond. Rep. 165. 19. As to bills of exchange drawn in the United States, payable in Europe, 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 shall be produced, though the bills were not accepted. Ibid. 20. Bills of exchange, unaccompanied by protests for non-acceptance, but which had been protested for non-payment, were admitted in evidence. Clarke v. Russell, 3 Dall. 415; 1 Cond. Rep. 193. 21. Where bills of exchange were specially endorsed, and the endorsement still continued uncancelled, and there were no re-endorsements or other evidence of any subsequent assignment: General Principles. Held, that possession by the original endorser is 32. W. B., living in Virginia, drew a bill of prima facie evidence that he is the owner of exchange, in November, 1775, on R. C. & Co., them. Picquet v. Curtis, 1 Sumner's C. C. R. 478. merchants in London, which was duly protested 22. Where bills of exchange are made pay-in June, 1776. W. B. died in 1777, or 1778. able at a particular place, no action can be Payment was not demanded of the representamaintained until after a demand at that place, tive of W. B., till 1819, when suit was instituted and a dishonour there. Therefore, the statute on the protested bill. Query. Does the doctrine of limitations begins to run from the time of of presumption of payment, arising from lapse such demand, and not from the time when the of time, which is applicable to sealed instrubills were payable, according to their tenor. ments, apply to a bill of exchange? If it does, Ibid. such presumption is merely prima facie, and the holder may rebut it by accounting for the time which has been permitted to elapse, and by showing the improbability that the debt has been paid. Should this presumption be rebutted, still the plaintiff shall only recover legal interest from the time of the assertion of his claim. Hopkirk v. Page, 2 Brockenb. C. C. R. 20. 23. If a bill of exchange be remitted in payment of a debt due to the person to whom it is sent, and the amount of the bill is lost by the negligence of the person to whom it was transmitted, it is to be considered as payment of the debt. Roberts v. Gallagher, 1 Wash. C. C. R. 156. 24. If a bill of exchange, or a promissory note, is given and received in satisfaction of a precedent debt, the laches of the holder, by which the amount due upon the bill is lost, will prevent a claim upon the person from whom it was received in payment. Ibid. ance. 25. When the drawer had no funds in the hands of the drawee, an action may be brought by the holder, upon the bill, before the time it would be payable if it had been accepted. It may be brought immediately on non-acceptBaker v. Gallagher, 1 Wash. C. C. R. 461. 26. The drawer of a bill of exchange, protested after acceptance, having paid the dam. ages, cannot set off the same in an action against him by the acceptor, on another account, although the acceptor had funds in hand to pay the bill, the damages being unliquidated. Armstrong v. Brown, 1 Wash. C. C. R. 43. 33. Bills of exchange are transferable, not by force of any statute, but by the custom of merchants. Their transfer is regulated by usage, and that usage is founded in convenience. A deed, therefore, from A. to B., conveying a great number of bills, bonds, notes, &c., cannot be considered as a negotiation of the bills, on mercantile principles, so as to authorize the nolde to sue in his own name; though such an instru ment may be considered as conveying an equitable interest in the right to receive the money. Ibid. 34. Where bills are remitted by a merchant to his factor, to be converted into available funds, and the factor mingles the property of the merchant with that of others, by selling the bills on a credit, and taking a joint note, covering other sums than that stipulated to be paid for 27. When an accommodation bill goes into the bills, this is in accordance with the general the hands of a bona fide holder, even with notice usage; and if the parties to the note become inof its particular character, he is entitled to re-solvent before it is due, the factor will not be over the amount thereof from the drawer. Perry et al. v. Crammond et al., 1 Wash. C. C. R. 100. 28. Bills drawn for an illegal consideration or for one which happens to fail, cannot be enforced by one having notice of their character. Ibid. 29. Bills delivered after the death of the drawer, to a person who had made advances upon their faith to the drawer, who had them in his possession, for the purpose of raising money for the drawer, may be enforced against the representatives of the drawer. Ibid. 30. The plaintiff, in an action on a bill, has a right to recover gold or silver. The measure of damages must be the value of the bill, at the 'ime of notice of protest, in gold or in silver, and not in a depreciated or fluctuating currency. James Barker v. United States, 1 Paine's C. C. R. 156. held responsible, in consequence of the mere act of taking such note for the loss sustained by his employer. Hamilton, Donaldson & Co. v. Cunningham, 2 Brockenb. C. C. R. 350. 35. The relation of principal and agent is governed by general rules of law, founded on reason, and if the principal suffers through the remissness or negligence of the agent, the actual loss sustained by the principal, in consequence of such misconduct, is the standard by which his damages must be measured. But the law merchant prescribes, with exactness, the course to be pursued by the holder of a bill, and has substituted a peculiar standard by which damages are to be measured for any deviation from that course. Ibid. 36. The factor to whom commercial paper is transmitted for collection, but who does not make himself a party by putting his name upon the paper, is an ordinary agent, governed by the 31. An agent does not bear the same relation law which regulates the relation of principal and to his principal, that the holder of a bill of ex-agent generally, and is not subject to the law change does to the drawer or endorser. The merchant. Ibid. same negligence or omission which will deprive the holder of recourse against the drawer or endorser, will not render the agent liable to his principal, to the extent of the bill placed in his hands for collection. Hamilton, Donaldson & Co. v. Cunningham, 2 Brockenb. Ć. C. R. 350. 20** 37. Where bills of exchange are transmitted by a debtor to his creditor, to be sold, and the debtor directs the creditor to credit him with the proceeds, and the creditor sells the bills partly for cash, and partly for negotiable notes, and gives the debtor credit in his books for the 2 E General Principles. amount, in two distinct items, first, for the notes, and, secondly, for the balance in cash, this is a mere provisional payment; and if the notes be not paid, he may recur to his original claim; unless, by his subsequent conduct, he converts the provisional into an absolute payment. Ibid. 568. 38. If a bill of exchange be taken in payment, as a discharge of a pre-existent debt, or in such manner as imports an intention of the creditor to take the risk of the bill on himself, the original debt is thereby discharged. Brown v. Jackson, 2 Wash. C. C. R. 24. 39. If a bill of exchange is remitted, with a special endorsement, in payment of a previous debt which it was meant to discharge, the special endorsement does not restrain the rights of the endorsee on the drawer, or on any previous endorser; whatever may be the effect of such endorsement between the creditor and his endorser. Ibid. 40. The holder of a bill of exchange, protested for non-payment, is not obliged to sue any one of the parties to the bill, in order to strengthen his claim on other parties. He may sue or not, as he chooses. Ibid. of that board,) with the money of the United States, and was afterwards endorsed by T. T. T., treasurer of the United States, to W. and S., and by them presented to the drawees for acceptance, and protested for non-acceptance and nonpayment, and sent back by W. and S. to the secretary of the treasury: Held, That the endorsement to T. T. T. passed such an interest to the United States as enabled them to maintain an action on the bill against the first endorser. Dugan's Ex'rs. v. The U. S., 3 Wheat. 172; 4 Cond. Rep. 223: 48. Query, Whether, when a bill is endorsed to an agent, for the use of his principal, an action on the bill can be maintained by the principal in his own name. Ibid. 49. However this may be between private parties, the United States ought to be permitted to sue either in their own name, whenever it appears, not only on the face of the instrument, but from all evidence, that they alone are interested in the subject matter of controversy. Ibid. | 50. Held, That the United States might recover in the present action, without producing 41. In an action by the endorser of a bill of from W. and S. a receipt or re-endorsement of exchange against the drawer, it is sufficient to the bill; that W. and S. were to be presumed to account for the non-production of the bill, that it have acted as the agents or bankers of the United was lodged with the commissioners of bank-States; and that all the interest which W. and ruptcy, under a commission issued against the S. ever had in the bill was divested by the act drawer, and still remains with them. The As- of returning it to the party from whom it was signees of Palmer v. The Assignees of Blight, 2 received. Ibid. Wash. C. C. R. 96. 42. It is not necessary that a receipt for the money paid by the endorser to the endorsee, shall be entered on the bill. Ibid. 43. A bill of exchange is not, in general, to be considered as a satisfaction of a pre-existing debt, unless it be paid or accepted as such; nor if remitted conditionally, unless the debtor sustain injury by the laches of the creditor who received it. Gallagher's Ex'rs. v. Roberts et al., 2 Wash. C. C. R. 191. 44. The defendants having ordered the plaintiff to purchase salt for them, and to draw on them for the amount, and he having so purchased and drawn, they are bound to accept and pay his bills; and if they do not, he may recover from them the amount of the bills, and damages and costs of protests, (if he has paid the same,) upon a count for money paid, laid out and expended; and the bills of exchange may be given in evidence on that count. Riggs v. Lindsay, 7 Cranch, 500; 2 Cond. Rep. 585. 45. An action of debt will lie by the payee or endorsee of a bill of exchange, against the acceptor, where it is expressed to be for value received. Roborg et al. v. Peyton, 2 Wheat. 385; 4 Cond. Rep. 173. 46. Debt will lie by the payee against the maker of a bill, when the note is expressed to be for value received. Ibid. 47. Where a bill of exchange was endorsed to T. T. T., treasurer of the United States, who received it in that capacity, and for account of the United States, and the bill had been purchased by the secretary of the treasury, (as one of the commissioners of the sinking fund, and as agent 51. If a person who endorses a bill to another, whether for value or for the purpose of collec tion, comes again to the possession thereof, he is to be regarded, unless the contrary appears in evidence, as the bona fide holder and proprietor of such bill; and he is entitled to recover thereon, notwithstanding there may be on it one or more endorsements in full, subsequent to the endorsement to him; without producing any receipt or endorsement back to him from either of such endorsers, whose names he may strike from the bill or not, as he thinks proper. Ibid. 52. The endorser of a promissory note, who has been charged by due notice of the default of the maker, is not entitled to the protection of a court of equity as a surety; the holder may proceed against either party at his pleasure, and does not discharge the endorser by not issuing, or by countermanding an execution against the maker. Lenox v. Prout, 3 Wheat. 520; 4 Cond. Rep. 311. 53. By the statute of Maryland of 1763, ch 23, sec. 8, which is perhaps only declaratory of the common law, an endorser has a right to pay the amount of the note or bill to the holder, and to be subrogated to all his rights, by obtaining an assignment of the holder's judgment against the maker. Ibid. 54. Bills of exchange, and negotiable promissory notes, are distinguishable from all other parol contracts, by the circumstance that they are prima facie evidence of valuable consideration, both between the original parties and against third persons. Mandeville v. Welch, 5 Wheat. 277; 4 Cond. Rep. 642. 55. A bill of exchange is an assignment to the |