Act of February 23, 1816-July 1, 1817. R. C. ch. 211.

shall be presented for payment within the usual hours for doing business at such bank, (a) the person or persons, body or bodies politic or corporate, injured by such failure, shall and may obtain a judgment and execution for the amount of such note, bill or check, with six per centum per annum interest thereon, to be computed from the time of such failure or refusal, and costs, on motion in any court of record having jurisdiction thereof, upon ten days notice of such motion, to be served in writing upon the cashier, chief clerk, president, any director or manager of such bank, being at the time of such service, within the county or corporation within which such bank is established.

23. 2. If any note or bill of any bank within this commonwealth, made payable by such bank at the office of discount and deposite of one of its branches, be presented at such office for payment, within the usual hours for doing business at such office, or if any check for money justly due from such branch be presented for payment in like manner; and if, in any such case, there shall be a failure or refusal on the part of such branch bank to pay in specie the amount due upon such note, bill or check; it shall and may be lawful for the party presenting the same to obtain judgment and execution for the amount thereof, with interest at the rate of six per centum per annum, from the time that payment is demanded, until the same shall actually be made, upon motion, against the president, directors and company of the bank to which such branch bank belongs or appertains, before any court of record in the county or corporation where such branch bank is established and in all such cases it shall be sufficient for the party making such motion to give ten days previous notice thereof to the president, cashier, chief clerk, or any of the directors of such branch bank, if within such county or corporation at the time of the service of such notice; and, moreover, the execution which may issue upon such judgment, shall be levied in the county or corporation where the judgment is obtained; and, if there bet no property, or if the property taken in execution be not sufficient to satisfy the same, then the execution shall be levied for the amount due thereon, on any property of the bank in any part of this commonwealth.

:

24. §3. Upon the appearance of the bank by their attorney, and pleading immediately to issue in the court where such motion shall be made, the court shall, without delay, on the motion of either party, direct a jury to be impannelled to try the facts in issue between them; but, if the said bank shall neglect or refuse to appear according to notice given, or, upon appearance, shall fail to plead immediately to issue, then the court shall proceed to enter up judgment and award execution, on the motion of the plaintiff, against such bank, without directing a jury to be impannelled.(b)

(a) The holder of bank bills is entitled to be paid in specie the amount of the bills, on demand within the usual banking hours of the bank. He is not obliged to take foreign gold or silver coin at the bank count-the payment must be by weight. A bank is bound to keep its money counted or weighed, or to employ servants sufficient to count or weigh it, so as to pay all demands made within the usual banking hours. A bank holding the bills of another bank, and demanding payment of the same at the banking house of the latter, is not bound to receive its own bills in payment, but may demand specie. Suffolk Bank v. Lincoln Bank, 3 Mason, 1; and Hubbard v. The Chenango Bank, 8 Cowen, 88.

(b) A bank brings a suit in Virginia, declaring that it is a corporate company by act of the legislature of Ohio; plea, the general issue; at the trial defendant demurs to plaintiff's evidence; the demurrer contains no direct proof of the legal incorporation of the bank, nor can the fact be fairly inferred from the evidence stated in the demurrer: Held, this defect of evidence is fatal to the plaintiff's case. Jackson's adm'r v. Bank of Marietta, 9 Leigh, 240.

Nor can the want in the demurrer to evidence of this necessary proof to entitle the bank to recover, be supplied by resort to a demurrer to the declaration which was overruled, whereby the averment therein contained of the legal incorporation of the bank was admitted. Ibid.

Act of February 23, 1816-July 1, 1817. R. C. ch. 211.

25. 4. Nothing herein contained shall be construed to give the summary remedy herein before created to any bank or banks, or the agent of such bank or banks, and the plaintiff or plaintiffs in any such motion, or the agent of such plaintiff or plaintiffs, shall, if required by the attorney for the defendant, make oath that the sum or sums demanded thereby, is or are justly due to the plaintiff or plaintiffs, in his, her or their own right, or in the right in which he makes his motion.

Act of March 19, 1832.

26. § 1. Hereafter any person or persons, body or bodies politic or corporate, having any controversy with any of the banks within this commonwealth, established by the laws thereof, which has or shall have arisen out of any transactions between such person or persons, body or bodies politic or corporate, and any one of the branches of either of the said banks, it shall be lawful for any such person or persons, body or bodies politic or corporate, desiring so to do, to institute any suit at law or in chancery, which by law could now be maintained against the said mother bank on any such controversy against any such branch bank, in any court of record in the county or corporation where the office of discount and deposit of such branch bank is established; and in all such cases it shall be sufficient to execute a summons instituting such suit on the president, or in his absence, the cashier, of such branch bank. And any execution which may issue upon any judgment so recovered, shall be levied in the county or corporation where the judgment is obtained; and if there be no property, or if the property taken in execution be not sufficient to satisfy the same, then the execution shall be levied, for the amount due thereon, on any property of the bank in any part of the commonwealth.

See tit. CORPORATIONS.

See also acts of extra session June 1837, p. 3-4, and acts of 1838, p. 78. By this act the laws subjecting banks to forfeiture of charters for non-payment of specie were suspended until the 1st of April 1839, and the forfeitures previously incurred were remitted. The banks by the 6th section of this act were required to issue notes of the denomination of one and two dollars to an amount not less than two nor more than four per centum upon their respective capitals, until the said 1st of April, and the laws prohibiting the issues of small notes were also suspended, until the said period. This act was extended in 1839, c. 85, p. 52, and again by act of April 4th, 1839. The banks were then relieved from the forfeitures and penalties imposed by prior laws for failing to pay specie, and their charters were again restored; and the laws prohibiting the issue and circulation of small notes were re-en

forced. By acts of Dec'r 11, 1839, and Feb. 26, 1840, the relief to the banks was further extended, and by act of March 18, 1840, they were again relieved from the forfeitures and penalties incurred by a second suspension of specie payments; and the acts prohibiting the issuing of notes under ten dollars were suspended until the 1st of April 1841. By this act, they are limited in the amount of their loans and discounts so as not to exceed on the 1st of Jan'y 1841 the amount of loans existing on the 1st Jan'y 1840. The summary remedy given in the act prescribing general regulations for banks, for their failing to pay specie, is also suspended to the 1st of Jan'y 1841. The banks are prohibited from receiving on deposit foreign bank notes under ten dollars, and from issuing or circulating evidences of debt not payable on demand; and from reissuing their own notes under fives.

See Acts 1840, c. 65, p. 53 to 55.

1. § 1. When one impleaded before any court, in any cause where appeal, writ of error or supersedeas, lies to a higher court, doth allege an exception, praying that the justices will allow it, if they will not allow it, and he that allegeth the exception, do write the same exception, and require that the justices will put their seals in testimony thereof, the justices, or the greater part(a) of them present, shall do so; and if such higher court, upon complaint made of the said justices, cause the record to come before them, and the same exceptions be not found in the roll, and the plaintiff shew the exception written, with the seals of the justices put to it, the justices shall be commanded that they appear at a certain day, either to confess or deny their seals; and if the justices cannot deny their seals, it shall proceed to judgment according to the same exception, as it ought to be allowed or disallowed. Nov. 1789, c. 12; R. C. c. 44.

2. § 2. In the prosecution of any person or persons for any crime or misdemeanour, in any(b) court of law of this commonwealth, it shall be the duty of the judge or justices before whom such prosecution is pending, to sign and seal any(c) bill of exceptions tendered to the court during the progress thereof:

(a) The first section of this act, is taken chiefly from West. 2, 13 Ed. 1, c. 31, which requires the justices to put their seals, "and if one will not, another of the company shall." 2 Inst. [426]; 3 H. & M. 224. Has the court of appeals, the power to coerce the judge of an inferior court to seal and allow a bill of exceptions, regularly tendered and containing the truth of the case? Shanks et al. v. Fenwick, 2 Munf. 478. For the mode of proceeding in England, see Ld. Redesdale's opn. in Lawler v. Murray, 1 Sch. and Lefr. 75; and see The People v. The Westchester Judges, 2 Johns. Cas. 118; Sikes v. Ransom, 6 Johns. R. 279.

As to the application of 13 Ed. 1, Ld. Redesdale said, (1 Sch. and Lefr. 82,) I take the rule to be, that, wherever any matter is capable of being brought upon the record, and the court refuses to allow it to be so brought, and this refusal does not in its nature come upon the record, though if the thing were allowed, that matter would appear on the record, this is the subject of a bill of exceptions.

(b) The provisions of the second section of this act, were introduced in Dec. 1814, and were confined in their operation to superior courts of law; Com. v. Hickerson, 2 Virg. Cas. 60; extended at Rev. 1819, to any court of law. In Junc term, 1812, the general court, in the case of Peter Case, decided, that the act of Nov. 1789, did not apply to criminal cases. Virg. Cas. 264. The People v. Holbrook, 13 Johns. R. 90; U. S. v. Gilbert et al. 2 Sumner, 104.

(c) Any bill of exceptions tendered by the prisoner: No writ of error lies in a criminal case, for the commonwealth. Com. v. Harrison et al. general court, June T. 1820.

A bill of exceptions, must be tendered at the trial, and reduced to writing while the thing is transacting, though it may be drawn

up

in form, afterwards. Holt, C. J. in Wright v. Sharp, 1 Salk. [288]; Sikes v. Ransom, 6 Johns. R. 279; Midberry v. Collins, 9 Johns. R. 345; Morris v. Buckley et al. 8 Serg. & Rawl. 211; Walton v. U. S. 9 Wheat. 651.

The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is, to request the judge to note down in writing the exceptions, and afterwards, during the session of the court, to hand him the bill of exceptions, and submit it to his correction from his notes. Pr. Marshall, C. J. in Ex parte Martha Bradstreet, 4 Peters's R. 102.

An exception to an opinion of the court, expressed in its charge to the jury, may be taken at any time before the verdict is pronounced. Jones et al. v. N. A. Ins. Co. 1 Binney, 38; 4 Dall. 249, S. C.; Lanuse v. Barker, 10 Johns. R. 322.

On objection made to the admissibility of testimony, the judge holds it admissible for two distinct reasons which he states; an exception is taken to the opinion of the judge, admitting the testimony-setting out both his reasons for its admission: This court, not considering the second reason assigned by the judge as having been an instruction to the jury, or as excepted to, and holding that

Act of January 6, 1819-January 1, 1820. R. C. ch. 133.

Provided, The truth of the case be fairly stated in such exceptions. And

The facts of the case, on which the exception is founded, should be fully and clearly stated, and, it is the interest of the successful party before the lower court, to see that the case is fully stated, for if the appellant bring up a bill, so imperfectly stating the case, that the appellate court cannot see how it should be decided, the judgment will be reversed. See Barnet et al. v. Tazewell, 1 Call, 215; Beattie v. Tabb's adm'r, 2 Munf. 254; Hairston v. Cole, 1 Rand. 461; Brooke v. Young, 3 Rand. 106. A bill of exceptions, to the opinion of the court overruling a motion for a new trial, grounded on the verdict's being contrary to evidence, should not state all the evidence given to the jury, but only the facts appearing to the court to have been proved. Bennett v. Hardaway adm'r of Jones, 6 Munf. 131, so as to present the same question to the superior court, on which, the inferior court founded its opinion.

Quere, whether, if the court, in such case, refuse to certify a proper state of facts proved, the party may take an exception for that cause, and appeal from the judgment? or ought to tender a fair and full state of the facts proved, and on the court's refusing to certify it, take evidence of its fairness, and then ask the appellate court for process to compel the court to sign and seal it? Vaughan v. Doldem Green, 1 Leigh, 287. See Ex parte Crane et al. 5 Peters 190.

When a motion is made for a new trial, in a capital case, on the ground that the verdict is not warranted by the evidence, the court is not bound to re-examine the witnesses and state the evidence verbatim, but may state the material facts proved and evidence adduced at the trial from the judge's own notes, aided by those of the counsel on both sides. The Com. v. Jones, 1 Leigh, 598.

The principle is, that a party shall not be permitted so to frame a bill of exceptions, as to refer the credit of the witnesses to the appellate court. Carrington v. Bennett, 1 Leigh, 340. But, though a bill of exceptions may have violated the general rule in stating the evidence given, instead of the facts proved-the judgment below will not be affirmed, if the bill shews no conflicting evidence-and that excluding all the evidence of the party against whom the verdict was found, and admitting the truth of all the evidence adduced for the party, in whose favour the verdict is, 'tis contrary to

the evidence and to justice. Ewing v. Ewing, 2 Leigh, 337.

The parties to an action upon the case, by detailing the evidence, and then admitting the facts stated in the evidence; the evidence detailed is in some respects variant and conflicting: Held, the court can give no. judgment, on such a case agreed, and, on a motion to set aside a verdict, and for a new trial, on the ground that the verdict is contrary to evidence-the motion is overruled, but the circuit court refuses to certify the facts proved by the evidence, and only certifies the evidence, and that nothing appeared to impeach the credit of any part of it, the bill of exceptions sets out the testimony at large, which is in some respects variant and conflicting: Held, this bill of exceptions is not well taken, and the appellate court cannot review the judgment of the cir. ct. overruling the motion for a new trial. Jackson's adm'r v. Henderson &c. 3 Leigh, 196.

In a bill of exceptions to a refusal of a court to grant a new trial, all the evidence adduced by the plaintiff, for whom the verdict was rendered, is set out, the party excepting having offered no evidence, and there being no conflict in the evidence, nor any doubt of the credit of the witnesses: Held, this bill of exceptions to be well taken, though it does not purport to state the facts proved at the trial. Green v. Ashby, 6 Leigh, 135.

Bill of exceptions to refusal of court to grant a new trial, in one part of it states the evidence adduced, not the facts proved; yet it appears that the court meant to certify the whole as facts proved: Held, the bill of exceptions is well taken. Mays v. Callison, 6 Leigh, 230.

A motion is made for a new trial, on the ground that new and important evidence has been discovered since the verdict; the motion is overruled, and a bill of exceptions is filed, containing the party's affidavit, and that of the new witness on whom he relies, which affidavits shew the nature of the evidence,-its materiality, and the recent period at which it became known to the party: Held, no sufficient ground appears for an appellate court to reverse the judgment, and award a new trial. The bill of exceptions being radically defective in not stating all the facts, which the court below considered as proved by the evidence given to the jury, which should have been stated, to enable the appellate court to decide whether the inferior court erred or not. Callaghan v. Kippers, 7 Leigh, 608.

A bill of exceptions to an opinion of a court overruling a motion for a new trial, instead of stating the facts proved, states the evidence adduced at the trial; but the evidence thus set forth shews that the evi

Act of January 6, 1819-January 1, 1820. R. C. ch. 133.

thereupon the said exceptions shall, by the clerk of the said court, be entered