Brown v. Barry,
Annotate this Case
3 U.S. 365 (1797)
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U.S. Supreme Court
Brown v. Barry, 3 U.S. 3 Dall. 365 365 (1797)
Brown v. Barry
3 U.S. (3 Dall.) 365
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. . . . "
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: