The suspension of a statute for a limited time is not a repeal
of it.
The intention of the legislature when discovered must prevail,
any rule of construction declared by previous acts to the contrary
notwithstanding.
In an action on a bill of exchange, which had not been protested
for nonpayment, it is not necessary to aver in the declaration that
the bill had been protested for nonacceptance.
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 nonpayment, that a protest for
nonacceptance shall be produced, though the bills were not
accepted.
Where the action is for foreign money, and its value is not
averred, a verdict cures the defect.
The reason that debet for foreign money is ill is the
uncertainty of its value, and this is cured by a verdict.
An action of debt had been instituted in the circuit court by
James Barry, a citizen of Maryland, against James Brown, a citizen
of Virginia, in which the declaration sets forth that the
plaintiff, by his attorney,
"complains of James Brown, etc. of a plea that he render to him
the sum of �770 sterling money of Great Britain, with interest
thereon at the rate of 10 percent per annum, from 11 February 1793,
which to him he owes, and from him unjustly detains. For that
whereas the said defendant, on 11 February, 1793, at Virginia
aforesaid, according to the custom of merchants, did make his first
bill of exchange to the court now here shown, bearing date the said
11 February, 1793, signed with his name by his proper hand
subscribed and directed to Messrs. Donald & Burton, whereby he
requested the said Donald & Burton at 60 days' sight of that
his first of exchange (his second and third not paid) to pay to the
order of Mr. Hector Kennedy �770 sterling for value in current
money here received (that is to say at Virginia aforesaid) and to
place the same to the account of him the said James Brown."
The declaration then proceeds to set forth in the usual form
successive endorsements by H. Kennedy to Joseph Hadfield, by Joseph
Hadfield to Richard Muilman & Co., and by Richard Muilman &
Co. (on 26 June, 1793) to James Barry, the present plaintiff, and a
protest for nonpayment on 21 June, 1793. After averring that none
of the bills of the set had been paid, it concludes,
"whereby and by force of the act of the general assembly of the
Commonwealth of Virginia in that case made and provided, action
accrued to the said plaintiff, to demand and have of the said
defendant, the aforesaid sum. . . . "
Page 3 U. S. 366
To this declaration there was a plea of
nil debit,
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. If the court shall be of
opinion that the consideration above mentioned did not come within
the operation of the 4th section of the Act of Assembly of 28 Geo.
II, 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."
The case was first argued in the circuit court on a motion made
by the defendant to arrest the judgment for the following
reasons:
"1st, because the declaration aforesaid demands foreign money
without stating the value thereof in the current money of the
United States of America or of the Commonwealth of Virginia. 2d,
because the said declaration does not charge that the bill of
exchange therein mentioned was protested for nonacceptance; neither
doth it charge that the said bill was presented to the persons on
whom it was drawn for acceptance or that they ever were required to
accept it. 3d, because the said action is founded on an act of
assembly which was not in force at the time when the bill of
exchange mentioned in the declaration was drawn."
But these objections having been overruled, the law arising on
the special verdict was argued, and adjudged to be in favor of the
plaintiff, whereupon judgment was rendered for the sum of $4,404.42
with interest at 5 percent 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:
Page 3 U. S. 367
MR. CHIEF JUSTICE ELLSWORTH.
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
drawn, to-wit, on 11 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 till 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 till
a day then future, 1 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
Page 3 U. S. 368
the act of 1748 clearly was in force when the bill was
drawn.
II. The second exception states that there is no averment of a
protest for nonacceptance 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
plaintiff 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 nonpayment. 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 nonpayment, that a
protest for nonacceptance 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 preexisting 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, has, by its
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 has 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,
viz., "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 has found the value, its verdict being in dollars. The value
of sterling money here sued for had been long ascertained in
Virginia by statute, and was certain enough.
Page 3 U. S. 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.
