Nelson v. Fotterall

The questions to be decided, are, whether the court erred in refusing to give the instructions which were asked for, or in those which it did give ?

As to the first. The presentment of a bill of exchange for acceptance, should in all cases be made during the usual hours of business. It appears, in this case, that fruitless attempts were made by the clerk of the holder to find the drawee at his counting room, on Saturday the 24th March (the very day when the bill arrived in Liverpool) and on Monday the 26th; that, on the 27th, diligent search was made by the holder himself at the exchange, the brokers’ offices, and the newsroom, at which places the drawee did most of the little business which he transacted; and that, in consequence of these searches and inquiries, the drawee at length made his appearance at the house of the holder, the bill was presented to him, and he refused to accept. It does not certainly appear-, that it was on the 27th that the drawee went there: it may have been on the 28th," and it is only by inference that the time can be ascertained. But admit that it was on the 27th, yet, surely, if it was too late on that day for the holder to find the notary, and put the bill into his hands to enable him to make the presentment during the usual hours of *195business on that day, it was useless then to put it into the hands of the notary, since it could not be presented till the next day. Here was a case in which something less than an inevitable accident would excuse the holder from putting the bill into the notary’s hands on that day. The court, therefore, did right in refusing to give the instruction asked for, and in modifying it in the manner it did.

As to the second instruction. It is true, that the presentment of a bill should be made to the drawee himself, or his authorized agent. But I cannot perceive any good reason why this instruction should have been given. The evidence shews, that the drawee was hard to be found, that after being found he promptly refused acceptance to the holder, and that afterwards when the notary went to the counting house of the drawee, he presented the bill to the clerk there found, and demanded acceptance thereof, and received for answer that the bill would not be accepted, he having received no orders to accept the same. Under the circumstances, the notary had a right to presume, that the clerk was authorized by his principal to refuse the acceptance, and the court was right in drawing the same conclusion.

The third instruction that was asked for, was, that the notarial presentment could not regularly be made by the notary’s clerk, but must bo made by the notary himself, in order to warrant the notary in making the protest. This general proposition was probably founded on a remark of Mr. Chilly, who says, “ the demand is the material thing, and must, it is said, in the case of a foreign bill, be made by a notary public himself, to whom credit is given because he is a public officer, and it cannot be made by his clerk.” A similar remark had been made by Gwyllim in his edition of Bacon’s Abridgment, vol. 4. p. 725. but in rather more positive terms : “ The demand of payment of a foreign bill, must be made by *196the notary public himself, and not by his cleric.” But both of these writers' refer for the proposition, to a dictum of Butter, J. in Leftley v. Mills, 4 T. R. 175. Chitty had certainly some doubts of its soundness, for he introduced it with an it is said; and in the note, he adds sed, quere. When we look at the case referred to, we find it as follows. It was an action by an indorsee of an inland bill of exchange, against the acceptor. The bill was dated 4th April 1790, payable fourteen days after sight, and being accepted on the 7th, consequently became due, allowing the three days of grace, on the 24th, which fell on a Saturday. There was a plea of non assumpsit as to the whole except as to £ 20. 7. 6. and as to that a plea of tender. On the 24th, the plaintiff having left the bill at Lockhart's (his banker) at Pall Mall, one of Lockhart's clerks called at the defendant’s house with the bill, but the defendant not being at home, the clerk left word where the bill lay, that the defendant might send and take it up; which not being done before six o’clock, it was noted by another clerk of Lockhart, who was a notary. Between seven and eight o’clock in the evening, the same person who first went to the defendant’s called on him again with the bill, in the character of a notary’s clerk, when the defendant offered to pay the bill, but refused to pay half a crown more which was demanded for the notary. Several questions arose in the case; but the only one decided by a majority of the court, was, that the statute of Will. 3. respecting protests of inland bills, did not apply to such bills as were made payable after sight, and applied only to such as were payable after date. A difference of opinion existed between lord Kenyon and Buller, J. as to the question, whether the acceptor of an inland bill is bound to pay it on demand at any reasonable time of the third day of grace, or whether he is allowed the whole of that day to pay it in. These two questions have nothing to do with the *197one now under consideration. But Butter, J. alone gives his view of what is necessary to be done in making a protest: after stating, that three things are necessary, the noting, demanding and. drawing up the protest, he said—“ The next and material part is the making of the demand”—“ It is material too, to consider by whom the demand was made in lids case. I am not satisfied that it was a proper demand, for it was only made by a banker’s clerk. The demand oí a foreign bill must be made by a notary public, to whom credit is given because he is a public officer.” This opinion is clearly an obiter opinion; for the judge immediately after says that there could not be any protest at all in the case, as none was required at common Jaw on inland bills, and the statute of William, does not apply to it. Admit, however, that it has great force, on' account of the eminent source from which it springs, yet what does it prove r The notary charged the acceptor with half a crown, the fee for noting the bill. If the demand of payment was made by a person properly authorized, and the acceptor refused payment to him, and the notary then noted the bill for protest, he was entitled to his fee: but if the demand was not made by a proper person, the note for protest was not properly made, and the notary had no right to his fee. But the judge was not satisfied that it was a proper demand, for it was only made by the banker's clerk. He does not say it was made Jjy tire notary's clerk, and therefore he does not say, that if it had. been made by such an one, the demand would have been a.n improper one. The noting, according to the statement, wa.s founded on the previous demand by the banker's clerk, which was not satisfactory to the judge. At the time he made the demand, he was not the clerk of the notary. It is true, that an hour or two after the noting was made, the same clerk called again with the bill in the character of notary's clerk, but this new character did not validate the de*198mand which he had previously made in a different character. The judge goes on to say, that the demand of a foreign bill must be made by a notary public, to whom credit is given, because he is a public officer. This general observation must be taken with reference to the case before him, and clearly discountenances the demand made by a clerk who was not in the employment of the notary nor in any manner under his control: but it ought not I think to be extended further. And it seems to me, that much inconvenience would result, in commercial proceedings, from establishing the principle, that a presentment and demand made by a notary’s cleric, is not a sufficient foundation for a protest; and, on the other hand, that no injury can proceed from allowing it. In such a commercial emporium as Liverpool, a notary public of reputation must be frequently crowded with business : without the aid of his clerks, he must neglect much of it. It may be necessary to make demands in different parts of the city, at the same moment, whilst his own presence in his office is indispensable ; and most of this business must be done within certain hours of the day. If the simple business of making demands on bills, or even of receiving the money due on them, cannot be done by his clerks, it must frequently go undone, or the holders must resort to other notaries of inferiour reputation, or those less approved of. Then, I ask, where is the danger of confiding this business to his clerk ? He is under the control and direction of the notary, who is responsible for his acts, and his omissions of duty. The protest is to be drawn up by the notary himself, and the law may well confide in his discretion that he will not solemnly protest, unless he is entirely satisfied that the demand has been made as it ought to be made. The necessity of employing clerks of the notaries in this matter justifies the practice; and, accordingly, it is proved in this cause, that it is the usage in Liverpool for notaries to do this *199kind of business by their clerks. I think, then, that the obiter dictum of judge Butter should not be allowed to make the law, particularly as he had not before him the very case of a demand by a notary's clerk, as the foundation of a protest by the notary. I cannot rely, as authority, on the mere adoption of this principle by Gwyttim, nor on the hesitancy of Chitty in adopting it, particularly as judge Bayley in his treatise on bills has not adopted it. In the fourth edition of that work revised by himself, that principle is no where laid down; and although in the notes he has twice referred to the case of Leftley v. Mitts, he has omitted the abovementioned dictum of judge Butter. Chitty, in a subsequent edition (Philadelphia edition of 1826, p. 417.) further remarks, that the doctrine which he had laid down so hesitatingly, was sanctioned in a late case, and he refers to the case of ex parte Wasley, 2 H. Blacks. 275. In this, I think, he is mistaken. The decision there, was merely that where the rule of court required that the affidavit of the acknowledgment of a warrant of attorney to suffer a recovery, shall be attested by a notary public, that rule should be strictly observed, and that the taking of the affidavit before an ordinary magistrate of Gibraltar, did not come within the rule, unless it was attested by a notary public.

I am of opinion, that the third instruction was properly refused by the circuit court. The judge seemed to admit the proposition to be true, but refused it, because the protest of a foreign bill of exchange, made in a foreign country, proves itself. This position is correct. 12 Mod. 345. Bayley 332. n. 44. But the judge went further and said, that the protest now produced appearing on its face to be in all respects regular, parol evidence was not admissible to prove that the protest was not made in the manner stated therein. This is laid down too broadly, for it seems sufficiently clear that the notarial, protest is only prima facie not conclusive evi*200dence, that the bill was not accepted, or not paid, and therefore may be contradicted by other evidence. 4 Gwyl. Bac. Abr. 725. But I do not think, that this erroneous reason given by the judge, is a sufficient ground for reversing the judgment. He did not mean to say, that evidence might not be admitted to prove that the presentment and demand were not made at all; if hé had intended to say so, he would have given an opinion on a mere abstract proposition, for no such case was made by the evidence before him: he merely meant to say, that as the protest stated that the notary himself had made the demand, evidence was not admissible to prove that the cleric of the notary had made it. Taking it in this restricted sense, the opinion is not so objectionable as has been supposed: for on the concession that the demand may be made by the notary’s clerk, as the foundation for the notary’s protest, it is useless to introduce evidence to contradict the protest in this respect; because, quacunque via data, the protest is unexceptionable. I therefore repeat, that this reason given by the court is no ground for setting aside the judgment.

The fourth instruction asked for involves a question of the lex loci contractus. It was admitted at the trial, that the bill of exchange was drawn at Petersburg for the accommodation of the drawers residing there; that Dunlop 8f Orgain indorsed it, also for the accommodation of the" drawers; and that the Farmers Bank of Petersburg, whose cashier also indorsed it, undertook to dispose and did dispose of it, in New York, for and on account of the drawers, who made it with the intention of having it negotiated in that manner. The plaintiff appears to have been the purchaser. The bill came back protested from Liverpool; and in ascertaining the extent of the recovery to which the holder is entitled from the drawers, the question is, whether the law of New York, or that of Virginia, is to prevail ?

*201The general rule is, that where persons enter into a ° . personal contract m a foreign state or country, and a litigation grows out of It, the law of the place where the contract was made, gives the rule of decision. There is, however, an exception to this general rule; which is, that where the transaction is entered into with a view to the laws of another country, then the law of the place of contract will not govern. The rule, and the exception, a,re laid down by lord Mansfield in Robinson v. Bland, 2 Burr. 1078. There, the first count in the declaration was on a bill of exchange drawn at Paris by sir John Bland, on himself in England, for the sum of ¿£672. sterling, payable to the order of Robinson the plaintiff! ten days after sight, value received, and accepted by sir John Bland. The bill was given for ¿£300. lent a.t Paris by the plaintiff to Bland, at the time and place of play, and for ¿£372. more, lost at the same time and place, by Bland to the plaintiff', at play. The judge, after laving down the rule and exception, said—“Now, here, the payment is to be in England; it is an english security, and so intended by the parties.” Huberus is quoted by lord Mansfield, and in the passage referred to, that author, after laying down the general rule, says—“Nevertheless, the place in which the contract is entered into is not so entirely to be respected, as that if the parties, in contracting, look to another place, that place is not the rather to be considered. For every one is understood to have contracted in that place in which he bound himself that he would pay.” In the case of Warders v. Arell, 2 Wash. 282. the authority of Robinson v. Bland and of Huberus was approved and relied on. There have been several interesting decisions in the supreme court of the U. States that bear on this question. The rule and the exception seem to be clear enough, and yet the application of them to the case under consideration is sometimes attended with difficulty. See Slacum v. Pomeroy, 6 *202Cranch 221. Lanusse v. Barker, 3 Wheat. 101. 146. Boyce & Henry v. Edwards, 4 Peters 123.

How was it in the case before us ? Although the bill was drawn in Virginia, yet it was sold in Neiu York. There was no contract in Virginia, between the drawer on the one hand, and Fotterall on the other. It was no contract till the bargain was made for the sale of the bill; and that was made in New York. The contract was not even begun at Petersburg; it begun and ended at New York. That being the place of contract, the law of that place must govern, unless the parties, when the sale was effected, had reference to Virginia as the place in which the defendant would repay the money, in case the bill should come back protested. I incline to the opinion that they had no such reference. The money was advanced -in New York, and according to Lanusse v. Barker, it was to be replaced there.

But if I am wrong in this particular; if the parties, though contracting in New York, had reference to Virginia as the place for the payment, by the drawer, of the contents of the bill and its incidents accruing upon the dishonour of it; I am yet confident, that the circuit court did not err in its construction of our statute directing that the current money paid or allowed on foreign bills shall be expressed on the face of them. The statute contemplates bills purchased in this state. The 4th section speaks, first, of bills given for a, debt due in current money of Virginia: a debt due in current money of Virginia is a debt contracted in Virginia; and if the bill be given for such debt, it is still a Virginia transaction-. So, if the current money of Virginia be advanced and paid for such bill, the bill is purchased and paid for in Virginia. A man advancing or paying money at Philadelphia or New York, for any article sold there, although it comes from Virginia, does not pay in Virginia currency, but in Pennsylvania or New York currency. In this case, although the bill was drawn *203and indorsed in Virginia, it was not drawn and indorsed for any money advanced or paid here, because it was drawn and indorsed expressly for the pm pose of being negotiated in New York. It was made to be sold there, and was sold there: there was no contract till it was sold there: it was, as to Fotterall, a mere blank piece of paper till he purchased it, and when he purchased it, he paid for it in the current money of the place where the transaction occurred. Although the bill ex;presses on its face that it is for current money here advanced (if that meant Petersburg) it was not necessarily true; and the sale of the bill in New York shews that in fact it was not true. The purchaser cannot be estopped from shewing that that averment was not agreeable to the fact. It was of no importance to the validity of the bill, whether it expressed the consideration to be for Virginia currency paid, or not; all that was important was, that the bill should express “value received,” as the consideration. But the last clause of the section shews, clearly, that it extends only to bills purchased and sold in Virginia. It inflicts a penalty on the purchaser. It is to be remarked, 1. that the law supposes that the drawer can have no inducement to insert an untrue sum in the bill, but that the purchaser may express a false consideration, or cause it to be expressed : it supposes, then, that the purchaser is to be present by himself or his agent when the bill is drawn; present at its concoction; the actor in the insertion of a false consideration on the face of the bill. It does not apply to the case of a drawer being himself the criminal actor, inserting a false consideration, and sending out the bill ready drawn and indorsed, to another state to be sold for what it is really worth. It does not apply to a purchaser of such bill in another state, who takes the bill as he finds it prepared, and pays for it in his own currency. 2. The imposition of a penalty shews that the law contemplates the purchase to be in *204Virginia. Our courts can take no cognizance of an of-fence committed in another state. The legislature would not do so vain a thing as to inflict a penalty on the making of a contract in another state, which if done here is unlawful, and'might well be punished, but may not be unlawful in the state where it is done, and if unlawful can only be punished by their own tribunals. If this law be applicable to the present case, then the innocent purchaser might be punished, and the guilty drawer rewarded.

I have not turned much of my attention to the pleadings in this case. The counsel for the appellant began with an attack on the declaration, but in the progress of the discussion he seemed to abandon his objections to it, and relied on the alleged errors in the instructions of the court, as the ground for reversal of the judgment. The declaration does not charge a protest for non-acceptance or non-payment of the bill'. But this is no ground for arresting the judgment. At the most, the omission could only be taken advantage of by a special demurrerBayley 285. n. 236. But even if it would be bad on general demurrer, the judgment could not be arrested under the broad words of our statute of jeofails, which, after verdict, cures every defect, “ whether of form or substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of.”

It has been suggested, that the verdict and judgment are erroneous in giving damages for the protest, the declaration not having set forth a protest. If the defendant had thought proper to make this objection, and to move the court to direct the jury not to give such damages, because there was no allegation of a protest, I will not say that such direction should not have been given ; but as the defendant waived the objection, or did not make it at the proper time, and before the proper tribunal, I do not think the appellate court ought to help him.

*205It is further suggested, that there is no allegation in the declaration that the bill, though drawn and indorsed at Petersburg, was negotiated in the city of New York. I do not know that this was at all necessary, but if it was, it would have been enough to have alleged it under a scilicet: that the bill after being made and indorsed in Petersburg, was sold and transferred to the plaintiff at the city of New York, to wit, at Petersburg aforesaid. The want of such allegation is surely cured by the statute of jeofails. Again, at the trial the defendant did not object to the evidence proving that the contract was made at New York; he therefore waived all objection to the want of this allegation, and it cannot now be brought forward to operate in his favour.

I am of opinion, that there is no error whatever in the judgment, and that it should be affirmed.

I concur with my brother Brocltenbrough, on all the points; and as to the two first, I shall add nothing to what he has said.

The third instruction asked for the defendant, was that the notarial presentment of a foreign bill, and the notarial demand of acceptance &c. must be made by the notary himself, and that a presentment and demand by his clerk is not sufficient to authorize a protest, the notary having personally neither seen nor sought for the drawee. The circuit court in answer to this, admitted that the general abstract proposition was correct; but it added, that “the protest of a foreign bill of exchange, made in a foreign country, proved itself and this proposition is certainly correct; all the books so lay it down. But the court went on to say, that “ the protest now produced, appearing on its face to be in all respects regular, parol evidence was not admissible to prove that the protest was not made in the manner stated therein; but it was competent for the defendant to prove by legal evidence of any sort, either that *206the bill was not presented by the holders, that acceptance wag not to tjiem refused, or that these things were not done in time by them.” We are Jo observe, that before this motion was made,-all the evidence had been, in fact, gone through; that it was all stated by the defendant, in his motion, to the court to instruct; and that he stated it to be all the evidence in the cause: and though this cannot be noticed in order to give the exceptions the effect of a demurrer to evidence, yet it may be noticed, in order to understand the opinion of the court, and to estimate its effect upon the cause. The court, then, having all the evidence before it, when it declared, that the protest being regular upon its face, parol evidence was not admissible to prove that it was not made in the manner stated therein, we may, I think, fairly construe this with reference to the particular proofs stated, thus—The notary, in his protest, says, that he exhibited the original bill of exchange to a clerk in the counting house of Gordon the drawee, and demanded acceptance thereof, and received for answer, that the bill would not be accepted &c. Here is a positive statement of the notary, that the bill was protested on his own personal presentation. Then comes the deposition of his cleric, who says, that he presented the bill to a clerk in Gordon’s counting house who refused acceptance, and that upon this (the clerk’s) presentation, the protest was made. The court having these two proofs before it, although it uses a very general phrase, may be understood to say, the notary certifies that he protested on his personal presentation; and the deposition of his clerk that the protest was on his presentment, shall not be received to contradict this. Although we may think that these expressions of the court, taken alone, áre too broad, yet when thus referred to the proofs on which they were intended to bear, they are not incorrect; and that they were meant in this restricted sense, is the more probable, when we look at *207the conclusion, by which the court gave leave to the defendant to prove by legal evidence of any sort, that the bill was not presented by the holders, that acceptance was not refused, or that these things were not done in time. Surely, no injury could result to the defendant from the instruction; because, having stated all his evidence, we cannot presume he had any more; and because, if he had had more, he might, under the latter part of the opinion, have introduced it.

The cpiestion upon the fourth instruction asked for the defendant, and on the opinion of the court on the point, depends on the construction and effect, or rather the application to this case, of the 4th section of our statute concerning sterling debts and foreign bills of exchange. If that provision of the statute applies to a bill drawn and indorsed for the accommodation of the drawers in Virginia, for the purpose of being sold in New York, and actually sold there, the circuit court was wrong; if the statute does not apply to such a case, the circuit court was right. Looking back to the origin of this statute, I find that it was first enacted in 1755 (6 Hen. stat. at large, p. 479.) and that it has been continued in all our revisáis since, exactly in its original form. In Proudfit v. Murray, 1 Call 404. Pendleton, P. commenting on this provision, says—“ When the act of 1748 passed, the execution on all sterling judgments was to be levied in current money at 25 per cent, for difference of exchange ; which was found to be inconvenient from the fluctuating state of exchange; and therefore by the act of 1755, the courts were empowered to settle the rate of exchange at the time of giving judgment, and in order to enable them to distinguish bills bought at a low exchange, knowing they would be protested (then too frequent in practice), from such as were drawn in the ordinary course of business at the current exchange, the law required, that in all bills drawn for current money debts, or for current mo*208ney paid for them, the sum of money paid or allowed should be expressed in the bill; or in default thereof, the sum of money expressed in such bill should be taken as current money, and judgment entered accordingly.” It may be remarked, in the first place, that this statute inflicts a penalty, and does not therefore call for a liberal construction; if the sum in current money paid or allowed for the bill be not expressed on its face, the holder forfeits the difference between sterling money and currency. But let us look at this law, first in its letter, then in its spirit, and see whether this bill of exchange be embraced by either. “In all foreign bills of exchange given for any debt due in current money of this commonwealth, or for current money advanced and paid for such bills ;” was this bill given for any debt due in current money of this commonwealth ? In Price v. Campbell, 2 Call 123. Carrington, J. said, it was the usual course of business in that day, for the debtor to draw a bill of exchange payable to his creditor, and get it guarantied by an indorser; a course, no doubt, growing out of the state of the country,- and of our relations with England, where all our produce was disposed of and our funds deposited. Did the bill before us spring from this source ? No, for we are told it was made and indorsed for the purpose of being sold in New York. It was given, then, for no debt due in the current money of this commonwealth. Was it given for current money of this commonwealth advanced and paid ? Assuredly not; for it was made to be sold, and was actually sold, in New York. How then could that part of the law be complied with, which directs, that the sum in current money which was paid or allowed for the bill, shall be mentioned and expressed in it ? The bill then is clearly not within the letter of the statute. It is quite as clear to my mind, that it is not within its spirit. What was the object of this law ? Judge Pendleton tells us, it was to enable the courts, *209when settling the rate of exchange on judgments, to distinguish between bills bought at a low exchange, and such as were drawn in the ordinary course of business at the current exchange. However this may be, or whatever was the particular object of the legislature, it is evident from every part of the a.ct, and indeed from the very nature of legislation, that the sphere of its operation was limited to this commonwealth. The legislature never dreamed of regulating the trade in bills of exchange, which should be carried on in other countries or states, if the drawer and indorsers, being in New York, had there drawn this bill on Liverpool, and there sold it, it would hardly be contended, that, because they were citizens of Virginia, it came within our law. And yet, I insist, that if such had been the case, if the bill had been drawn, indorsed and sold there, the transaction could not have been more completely beyond the operation of our law, more entirely a New York negotiation, and a New York bill, than it is now. I ground this upon the legal proposition, that an accommodation bill, as this was, is mere waste paper until it is passed to some real holder for a valuable consideration. This is so well established, that it may seem superfluous to cite cases in its support; yet I will call to my aid one or two. In Downs v. Richardson, 5 Barn. & Ald. 674. 7 Eng. C. L. Rep. 227. a bill of exchange was drawn, accepted and indorsed, all for accommodation; it was also properly stamped; but before it was passed away for value, the date was changed : and the question was, whether this had not made it a new bill and rendered a new stamp necessary ? All the judges agreed, that if it could be considered a bill at all, before the change of date, a new stamp was necessary; but they were equally clear, that it was no bill till negotiated. Abbot,, C. J. said, “ that until negotiated, it was an unavailable instrument; and that it first became a bill of *210exchange, when it was issued for a valuable consideration.” Bayley, J. said, “if an alteration be made before a bill is issued, a fresh stamp is not necessary. Then, when is a bill issued ? I am of opinion, that it is issued as soon as there is some person who can make a valid claim upon it; but if it remains in the hands of the original drawer, even with names upon it, under such circumstances as that he cannot have a legal claim upon those persons; it is not issued.” Holroyd, J. compared it to a bond before delivery. But although this, as a general legal proposition, be admitted, it is supposed, that though this bill was made and indorsed to be sold in New York, and was actually sold there, yet that it was a Virginia bill, and within our law, because the bill is dated “ Petersburg, Virginia,” and says “ for value in current money here received.” The first answer to this is that the date of the bill, like the signing and indorsing, is mere preparation ; it is no bill merely because it is dated; and as to the words “ for value received here,” we know that they do not state the fact; there was no value received at Petersburg, but only in New York on the sale there. But the case of the Marietta Bank v. Pindall, 2 Rand. 465. is a conclusive answer : there, the note was dated at Clarksburg, and was admitted to have been executed and indorsed in Virginia; yet, as it was negotiated in Ohio, this court pronounced it an Ohio transaction, and subject to the laws of Ohio.

The cases cited by my brother Brockenbrough are also strong to prove, that, as a general rule, the law of the place of contract must govern. I will add one to those cases; Van Reimsdyk v. Kane, 1 Gallison 375. where it is laid down (backed by numerous authorities) as the settled rule, that the law of the place where a contract is made is to govern, as to the nature, validity and construction of such contract.

I think that the circuit court erred on the second point stated in the bill of exceptions. The question involved in the instruction moved for, was not an abstract one. It was applicable to the case made by the evidence, and necessarily arose in the cause; for the protest exhibited by the plaintiff, as proof of the presentment and dishonour of the bill, expressly states that the presentment was made to a clerk in the counting-house of the drawee, and that he refused to accept it: and it is perfectly clear, that no presentment will justify the protest of a bill, unless it be made to the drawee, or to his authorized agent. The defendant, therefore, was entitled to an instruction, that such a presentment was not sufficient to justify a protest, unless the clerk was authorized to accept or refuse. But the court declined giving any opinion on the point submitted to it, but proceeded to give an opinion on a point not submitted by either party. I do not deem it necessary to inquire, whether this opinion given by the court was correct or not; for however that may be, the court ought to have given its opinion upon the point on which it was asked.

Then as to the third instruction; 1 shall consider the instruction which the court gave, before I proceed to consider that which it refused. The instruction given, as I understand it, denies to the defendant the right to controvert the truth of the facts stated in the protest. The court, it is true, admitted that it was competent to the defendant to prove that the bill was not presented hj the holders, that acceptance vras not refused to them, or that these things were not done in proper time by them. But it is manifest to my mind, that the court was studiously drawing a distinction between those things which may have been done by or to the holders, previous to the protest, find those things which are stated by the notary, in the protest; and that the court intended to say, that while the former might be con*212tro verted, the latter were incontrovertible. This opi- . r . ,. nion, as to the inadmissibility ot testimony to disprove facts stated in a "protest, is, I think, entirely erroneous. I readily admit, that the mere exhibition of a protest, under a notarial seal, is evidence, not only of the fact of the protest, but of the facts which it states in relation to the dishonour of the bill: but it is prima facie evidence only, liable, like all other prima facie testimony, to be rebutted or controverted by other evidence. The idea, that it cannot be contradicted, is not supported by even a dictum in any of the books that I have had access to. The case decided by lord Holt, 12 Mod. 345. is the foundation of the doctrine that a protest proves itself. In that case the plaintiff having, in order to prove a protest, produced an instrument attested by a notary public, the defendant insisted that he should prove this instrument, or at least give some account how he came by it: lord Holt held it unnecessary, because it would destroy commerce and public transactions of this nature. The extent of this decision, and of those founded on it, is, that the plaintiff shall not be obliged to produce other testimony than that afforded by the protest itself. But not a word is said as to the inadmissibility of disproving it by opposing testimony. The interests of commerce, do require such a rule -as that laid down by lord Holt; but it would be monstrous, that a notary who may have actually received payment of a bill, and pocketed the money, should, by protesting it as unpaid, put it out of the power of the drawer to prove the fact of payment, and thus compel him to pay it again to the holder. I think, therefore, that the court erred in the instruction which was' given on this subject. I think it equally clear, that it erred in declining to give the instruction moved for as to the insufficiency of a presentment and demand of acceptance or payment by a cleric, to justify a protest by the notary. *213Justice Butter clearly expressed this opinion in Leftley v. Mills; and although that opinion was extrajudicial, yet the extrajudicial opinion of such a judge on such a subject, is, in the absence of any judicial opinion to the contrary, entitled to very grea,t weight. But I think the opinion is supported by good reason. We may give full credit to the statement of facts made by a notary, as the foundation of a. protest, when we know that he. is an officer selected and duly appointed for the purpose, and that he is required to found his statements on his own knowledge. But such credit ought not, and would not, be given to his statements, if it be admitted that he may make those statements, not on his own knowledge, but on the confidence reposed by him in the statements of others, vested with no legal authority, and acting under no sense of official responsibility. To subject men to the consequences of protests thus carelessly made, would greatly lessen the disposition to deal in bills of exchange, and consequently would do great injury to commerce, if such a custom as that stated in the record exists at Liverpool, I think it is against law, and ought not to be tolerated. I am therefore of opinion, that the court erred in declining to give the third instruction.

As to the fourth instruction: after much consideration, I came to the opinion (in which, I own, I had no little confidence) that the court acted correctly in refusing the instruction moved for, and in giving that which was given. But I have since been convinced, by the strong views which the president has taken of this subject, that the court erred in both respects; and I now declare my entire concurrence in the opinion which he has prepared and will deliver on this branch of the cause.

1 am of opinion, that the judgment be reversed, and the cause sent back for a new trial, on which the court is to avoid the errors committed on the former trial.

The declaration .in all three of the counts, alleges, that the bill of exchange was drawn by Nelson Sf Minge at Petersburg in Virginia, indorsed there by Dunlop Sf Orgain to Clarice, and indorsed there by Clarke to the plaintiff Fotterall. There is no allegation of protest in any of them. The first and second counts claim fifteen per cent, damages under the statute of Virginia: the third claims only the £ 500 sterling money for which the bill was drawn, without damages. The jury found a verdict for the plaintiff for 2777 dollars 77 cents, with interest on 2222 dollars 22 cents &c. and the court gave the plaintiff judgment according to the verdict. In this state of the case, looking to the pleadings as laying the foundation of the action, the bill of exchange was clearly a Virginia bill, and the case was within the 4th section of the statute concerning sterling debts and foreign bills of exchange, which provides, that the sum expressed on the face of such a bill shall be taken to be current money, unless the current money paid and advanced for the same be expressed. If the plaintiff meant to rely on proof, that the bill, though drawn and indorsed at Petersburg in Virginia, was consummated by the sale of it to him in New York (as appears by the evidence • stated in the bill of exceptions) he should have alleged it in his declaration: he should have declared, that it was an accommodation bill, for which nothing was paid by either of the parties at Petersburg, and that it was first negotiated, first passed away for valuable consideration paid by him, in New York. But, by the. plaintiff’s own shewing in his declaration, and by the face of the bill itself, it was a Virginia bill drawn for value received at Petersburg, and not an accommodation bill made to be sold and actually sold at New York; and fifteen per cent, damages are accordingly claimed upon it, under the statute of Virginia. The cause was tried on the general issue pleaded to the declaration. I do not think that the de*215fend ant’s admissions at the trial changed the issue, so as to let in proof, that the bill was an accommodation bill, returned from Liverpool under regular protest; thereby wholly disregarding the pleadings, and converting the plaintiff’s demand into a claim upon a bill subject to the laws of New York instead of the laws of Virginia. There is no protest alleged in the declaration, without which the damages demanded under the statute of Virginia, were not demandable. I think the fourth instruction given by the circuit court to the jury, that this was to be regarded as a New York bill, though it was counted on in the declaration as a Virginia bill, and damages demanded upon it under the statute of Virginia, was erroneous. Therefore, I am of opinion that the judgment should be reversed, the verdict set aside, and the cause remanded for a new trial.

I am of opinion, that there is no error in the first instruction of the circuit court. I concur in the opinion of my brother Cabell upon the second.

With respect to the third instruction, 1 am satisfied, from an examination of the authorities, that though the protest of a foreign bill of exchange proves itself, if it be under a notarial seal, yet it is only prima facie evidence that the bill was not accepted, or if accepted not paid, and it may be contradicted as to those facts by proof on the other side. If this be so, then the instruction of the court to the jury, that parol evidence was not admissible to prove that the protest was not made in the manner stated therein, was not correct, since parol evidence might be introduced to disprove the allegation of presentment lor acceptance, and refusal, set forth in the protest. This instruction, moreover, seems to me to have been gratuitous, since it is not responsive to the instruction asked for. Of the propriety of the instruction asked, I am by no means satisfied, notwithstanding the dictum of Butter, J. in Leftley v. Mills. It *216is proved in this case, that there is a custom at Liverpool, that bills may be demanded by a notary’s cleric. I not see why this may not be, at least, with this obvious qualification, that though the notary’s authorized clerk may present the bill for acceptance, and though the refusal to pay him upon demand may justify a protest by the notary, yet the notary’s certificate is, in such case, no evidence whatever of the facts of presentment and refusal, but they must be proved by the oaths of witnesses as other facts are. Therefore, I am of opinion on this point, that though the instruction asked for ought not to have been given, the court was wrong in giving that which it undertook gratuitously to give.

I am also of opinion, that the fourth instruction was erroneous, the bill of exchange in this case being, in my opinion, a Virginia bill. I concede, without hesitation, that a bill of exchange, or accommodation note, drawn and indorsed for the purpose of being sent' into the market and sold, is not a complete and subsisting contract or security until negotiated for valuable consideration. It'then for the first time assumes the character of an,agreement, and until then it has been looked upon, in some regards, as nothing more than a blank piece of paper. But it is obvious, that this principle is to be received with some qualification. For though no proposition for a contract is, until it be accepted, of any force or validity, yet as soon as it is accepted and springs into existence, we look back to the circumstances under which the offer was made, to ascertain its true meaning and construction. Thus, if a proposition for a contract be made by a party resident in Virginia, that proposition must be considered as made with reference to Virginia law, unless the contrary appears; and if, being so made, it be accepted, it must be considered as accepted in the sense and spirit in which it was made, unless the contrary appears. And so with respect to a bill of exchange drawn in Virginia; if it *217has clear reference to Virginia law or Virginia currency, if it bears the stamp of a Virginia bill, and be after-wards sold even in another state, the purchaser must be held to take it as he finds it. And though it is not an available security until the negotiation, yet when the negotiation has taken place, it is a contract on the one part to sell, and on the other part to buy, a Virginia bill. Each party has a right to look to the law of Virginia as governing his engagement; the drawer looks to it to determine the extent of his obligation, and every successive holder, however remote, looks to it for his damages and costs. It is not then asserted, that the bill is an available security before negotiation, but that, by the purchase, the buyer assents to take it according to the character stamped upon its face. And it is obvious, that every successive holder must look to the face of the bill, as evincing its character, and the nature of the responsibilities upon it. So too, with respect to the other principle, so much insisted upon, and so entirely uncontroverted; that, as a general rule, the lex loci contractus furnishes the law of the contract. Yet, where the contract is made with reference to the law of another place, the latter governs, and not the former. If, therefore, the contract, in this case, was made with reference to the law of Virginia, that law must govern, and it must be treated as a Virginia contract. If the bill offered for sale had the stamp and character of a Virginia bill, and was bought, no matter where, under that character, it must be considered as a Virginia contract, with all the consequences attached to it as such.

Now what is the case here ? The bill is drawn at Petersburg, Virginia. The drawer was resident there, as were the accommodation indorsers. It was drawn for £, 500. sterling, “for value received in current money here;” that is, in Virginia currency; and in that form it was sent abroad to be sold. It went into the market, with these distinctive marks of being a Virginia trans*218ject, I must take it, that whatever commercial paper (above all other) purports to be on its face, it must- be taken to be in its essence. action. It was negotiated and purchased by Fotterall, with that character stamped upon it. Nay more, it was again indorsed by him and passed into the hands of his Liverpool correspondents. What was its character in their hands ? Was it a Virginia bill, which would entitle them to damages under our statute, or was it a New York bill as to the drawer, though there was not upon its face one single characteristic of a New York contract? Whether it be competent to the parties to a bill, to give to it this protean character, to bind the drawer by the New York law to one holder, and by the Virginia law to another, or whether it be competent to deny the character stamped upon the bill, and surprize the holder by proof that the contract was not consummated where the bill purported to be drawn,'—are questions which I must leave to be settled by those more versed than I am in the mystery of commercial law. But until my reason is further enlightened on the sub-

It cannot be denied, I presume, that the Virginia drawer had a right to confine his liability to the law of Virginia, the place of his residence, with whose regulations in relation to bills he was familiar. Suppose this was his design, in what other manner could it have been expressed on the face of the bill more decisively than by dating the bill here, and setting forth that it was for value received in Virginia currency ? If, then, we still treat it as a New York bill, we, in effect, deny that a bill negotiated in New York can be drawn with such a reference to the law of Virginia, as to make it subject to that law. This cannot be; and we must, therefore, take it that the drawer designed to bind himself by the law of Virginia.

In this light, indeed, the plaintiff in the cause seems himself to have considered it. He has declared upon *219it as a Virginia contract. He sets it forth as a bill ° , i.- . . . _ drawn at Petersburg, and there is not an intimation, from the commencement to the close, that the contract was made elsewhere. Nay more, in two of his counts he demands damages of fifteen per cent. “ according to the statute in such case made and providedthus distinctly referring to the statute law of Virginia as governing the contract. Under this declaration, he was not entitled to allege, that the bill was not within the influence of the Virginia law. He invoked it to entitle himself to damages, and he must abide by the penalties it imposes for the irregularity of the instrument. The court was asked to instruct the jury, that if the plaintiff was entitled to recover, his recovery must be limited to the nominal amount of the bill. This instruction should have been given; for the declaration, and the bill, both shewed a Virginia contract, and the bill bore upon its face the defect, which by law furnished an insuperable barrier to his recovering more.

It was said, however, that this bill ought not to be visited with the penalties'of the law, because the drawer at Petersburg could not know for what sum the bill would sell, and could not, therefore, insert the true sum in the bill. But if this argument is of any force, it will apply to cases which must unquestionably be within the law. Thus, if a bill be drawn at Lynchburg, to be sold at Richmond, the same difficulty would exist as to the Lynchburg merchant. Yet, assuredly, it will not be said, in the teeth of the statute, that if this bill had been so drawn it would not have been within the statute—unless we essay to repeal the statute. If then this case be not within the statute, it can only be because it is a New York transaction ; a position which I have already endeavoured to controvert.

Again, it was said, that the New York purchaser was deceived. By no means. As a dealer in bills he ought to have known, and doubtless did know, our law; and if he did not, he should have refused to negotiate the *220bill, or have insisted on its character being changed. Had the bill been actually first sold in Virginia, and then sold to him, it would have been confessedly within the law, and he would have been as liable to be deceived as in the present case. Yet there can be no doubt he would have 'been forced to submit to the penalty, and to take his judgment for currency only. That is all I think him entitled to, under the law in this case.

■ In this view of the case, it is scarcely necessary to add, that there must have been a new trial directed, for the excess of damages given by the verdict. This has arisen from adding damages for the protest. But such damages cannot be recovered, unless the protest is set forth in the declaration; and this is not done in either of the counts. In England, indeed, the omission to set out the protest is but matter of special demurrer; and so, I presume, it is here. But though the declaration may be substantially good without it, it by no means follows, that it will entitle the party to recover damages, unless he sets forth that protest, which by our statute is an essential prerequisite to entitle him to them.

Therefore, I am of opinion, that the judgment should be reversed, and the cause remanded for a new trial.

The judgment entered was, that this court “is of opinion, that the judgment is erroneous: therefore, it is considered that the same be reversed and annulled,” with costs to the plaintiff in error: “ and it is ordered, that the verdict be set aside, and the cause remanded to the circuit superiour court of Petersburg for a new trial to be had therein.” Thus, this court did not decide in what points the judgment of the circuit court was erroneous, nor did it give any directions to the circuit superiour court as to the instructions it should give to the jury on the questions in the cause, should they be presented on the new trial; the reason of which will appear by adverting to the several opinions of the judges on the several points. •