Brown v. Barry

3 U.S. 365 (____) 3 Dall. 365

BROWN Plaintiff in Error,
versus
BARRY.

Supreme Court of United States.

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.

ELSWORTH, Chief Justice.

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.

1. 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 the 11th of February 1793. The question is, whether two subsequent acts of the Legislature of that State, passed at a session in 1792 (namely, one of November, declaring the repeal of the act of 1748, and another of December, declaring a suspension of that repeal till October 1793) did in fact, repeal, and leave repealed, the said act of 1748?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two other statutes, namely, one of 1789, declaring, that the repeal of a repealing act shall not revive the act first repealed; the other of 1783, declaring, that statutes should take effect from the day, on which they in fact passed, unless another day was named.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 repeated. 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, the first of October, 1793. It could have had no other intent. And the intention of the Legislature, when discovered, must prevail, any rule of construction declared by previous acts to the contrary notwithstanding. Thus, the act of 1748, clearly was in force when the bill was drawn.

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

This exception is invalid on two grounds. 1. It does not appear, that the bill was not accepted, so that there could have been such protest; and, if accepted, it would have been immaterial for the Plaintiff to shew, that it was so, as his right of action could in no measure depend on that fact. The silence of the declaration as to the question, whether the bill was accepted or not, does not vitiate it; the action being on a protest for non-payment. 2. As to bills drawn in the United States and payable in Europe, of which this is one; the custom of merchants in this country does not ordinarily require, to recover on a protest for non-payment, that a protest for non-acceptance should be produced, though the bills were not accepted. I say the custom of merchants in this country; for the custom of merchants somewhat varies in different countries, in order to accommodate itself to particular courses of business, or other local circumstances.

III. The third exception states, that the judgment is for too large a sum, the bill having been taken for sterling, when, by the act of 1775 it ought to have been taken for current money of Virginia. That act requires, that if the consideration of a bill be a pre-existing currency debt, or be current money paid at the time of the draft, the bill shall express the amount of the debt, or currency paid, which was the real consideration. And that on failure so to do, the bill, though it may be expressed for sterling, as in this case, shall be taken to be for current money. The bill is thus expressed, "For value received in "current money;" but it does not say how much. The jury, however, have, by their special verdict, ascertained, that the real consideration of the bill was an engagement to draw other sterling bills. Now it is clear, that the consideration in fact, though variant from the face of a bill, is regarded by the act, and must be sought for, to give the act effect. Upon inquiry the jury have found the consideration to be such as to take the case out of the statute. In this bill then, the words added to value received, 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 have found the value, their verdict being in dollars. The value of sterling money, here sued for, had been long ascertained in Virginia by statute, and was certain enough.

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.