Act of January 6, 1819-January 1, 1820. R. C. ch. 133. in the record of such prosecution, and become to all intents and purposes a Carr, J. and Tucker, Pres't, in Sydnor v. Gee, &c. 4 Leigh, 539, 43-4. On a demurrer to evidence, the demurrant waives all his own evidence that at all conflicts with that of the other party-admits the truth of his adversary's evidence-admits all inferences of fact that may fairly be deduced from that evidence, and submits it to the court to deduce such fair inferences. Clopton's adm'r v. Morris et al. 6 Leigh, 278. It is error to refuse to compel a joinder in demurrer to evidence, where the evidence is not plainly against the demurrant. Green et al. v. Buckner's adm'r, 6 Leigh, 82. See Hoyle v. Young, 1 Wash. 151, and Buller's N. P. Dower, [314.] It is the right of the parties to demand, and the duty of the court to give instructions to the jury within proper limits. Brooke v. Young, 3 Rand. 106, and the opn. of ct. by J. Carr, distinguishing the cases. But, the court is not bound to express an opinion on a mere abstract question. Hamilton v. Russel, 1 Cranch, 309, and by Roane, J. 2 H. & M. 363; Covert et al. v. Irwin et al. 3 Serg. & Rawl. 283, 289. Or, on a question involving the truth of testimony, Smith et al. v. Carrington et al. 4 Cranch, 71; U. S. v. Burnham, 1 Mason's R. 57, 69; Hollingsworths v. Dunbar, 5 Munf. 199; Brown v. Campbell, 1 Serg. & Rawl. 176; to do which, would be error. 5 Munf. 199; 4 Munf. 310; 1 Wash. 203; 12 Johns. R. 513. As to the court's not being bound to express an opinion on a mere abstract question, see also Etting v. Bank U. S. 11 Wheat. 75, (Feb. T. 1826;) Caton et al. v. Lenox et al. 5 Rand. 31. And, if a party asks for instruction on points of fact as well as of law, the court is not bound to separate the fact from the law, but may refuse the instruction altogether. Brooke v. Young, 3 Rand. 106. The party asking instructions to the jury should specify the points, and not ask instructions generally as to the law arising out of a complicated mass of evidence. Kitty v. Fitzhugh, 4 Rand. 600; Union Bank of Georgetown v. Magruder, 7 Peters's Rep. 287. If the instruction involve matters of fact as well as of law 'tis erroneous. M'Rae v. Scott et al. 4 Rand. 463. If an instruction be too broadly asked the court may properly refuse to give it. But if an instruction asked be partly right, the court ought not wholly to refuse to give it, but should give it with proper modifications or explanations. Clarke v. Franklin, 7 Leigh, 1, 11-12. If an erroneous instruction be given to a jury by a court, and it appears by other bills of exceptions that the question on which that erroneous instruction was given did not arise in the cause, the judgment will be affirmed, notwithstanding the erroneous instruction. Hunter v. Jones, 6 Rand. 541. A demurrer to evidence, is a waiver of a bill of exceptions thereto. 1 H. &. M. 61; though a motion for a new trial, is not. 1 Serg. & Rawl. 451. The court may, however, in its discretion, refuse to hear a motion for a new trial, unless the bill of exceptions be first withdrawn. Ibid. And in Doe dem. Roberts v. Roberts, 2 Chitty's Rep. the court (K. B.) constrained the party to abandon his bill of exceptions before they would entertain a motion for a new trial; and see Cunningham v. Ball, 5 Mason's R. 161. A demurrer to evidence supposes that evidence to be already admitted If the testimony be inadmissible, its admission may be opposed; and if the objection be improperly overruled, the remedy is by a bill of exceptions. If, instead of taking this course the party chooses to admit the evidence, and to demur to its effects, he waives his objection to its inadmissibility, and places his cause on its sufficiency to establish the fact in controversy. Jacob v. The U. States, 1 Brock. R. 520, 526-7. When a cause is carried up to a superior court, on a bill of exceptions, it is the prac tice of Virginia, for the court to inspect the whole record, and if there be any error therein, the court will reverse the judgment for such error, though it may be of opinion, that the court below decided correctly on the particular point excepted to. Baird v. Mattox, 1 Call, 257; Murdock et al. v. Herndon's ex'r, 4 H. & M. 200. And see Le Bret v. Papillon, 4 East, 509; and Charnley v. Winstanley et ux. 5 East, 270-1. Where exceptions are taken to opinions of a court given at the trial of a cause on specific points, the appellate court will examine no points but such as were presented to and decided by the court below, though from the matters stated in the bill of exceptions there be apparently other points that might have been made. Newsum v. Newsum, 1 Leigh, 86: In a case brought before an appellate court on complaint of error in a particular point stated in a bill of exceptions, the appellate court will regard only that point, and will not look into objections that might have been, but were not, made in the court below. Barrett v. Wills, 4 Leigh, 114; Colgin v. Henley, 6 Leigh, 85. If the declaration be defective, the defendant should demur, or move in arrest of judgment; he cannot, on the trial, object to evidence in support of it, and applicable to the case made by it, and issue thereon, on the ground that, the declaration does not shew a good cause of action. Cunningham part thereof. 16, 17. Act of January 6, 1819-January 1, 1820. R. C. ch. 133. Act of January 13, 1818-January 1, 1820. R. C. ch. 125. 1. § 1. All bills of exchange or drafts for money in the nature of bills of exchange, drawn by any person or persons residing in this state, on any person or persons in the United States, or in the territories thereof, or in the District of Columbia, shall be considered, in all cases whatsoever, as inland bills of exchange; (a) and, if such bill of exchange or draft shall be protested for (a) In the case of Miller v. Hackley, 5 Johns. R. 375, it was decided, that a bill drawn in New York, on a person residing in any place within the United States, was an inland bill, on general principles. But in the case of Duncan v. Course, Const. Ct. S. Carolina, May, 1817, and in Lonsdale v. Brown, Cir. Ct. U. S. East. Dist. Penn. Oct. 1821, 2 Peters's R. S. C. App. 2, p. 688, and 4 Wash. C. C. R. 148, the contrary was adjudged. Washington, J. adopting the principle laid down by Pendleton, J. in Warder v. Arell, 2 Wash. 298, "that with respect to their municipal laws, the states are foreign to each other," was at a loss to conceive, how a bill of exchange drawn in one state, upon a person residing in another, can be considered as an inland bill. One, among many inconveniences resulting from so considering them, is, the necessity of proving by witnesses or depositions, in every suit on such a bill, presentation and demand, since the protest could not be given in evidence, to prove those facts: And see, Chesmer v. Noyes, 4 Campb. Cas. 129; Union Bank v. Hyde, 6 Wheat. 572. In the case of Buckner v. Findlay et al. 2 Peters's R. S. C. (Jan. T. 1829,) p. 586, it was decided that, bills of exchange drawn in one state of the Union, on persons living in another state, partake of the character of foreign bills, and ought not to be considered otherwise than as foreign bills, in the courts of the United States; and Townsley v. Sumrall, Ib. 170; Gillespie v. Hannahan, 4 M'Cord, 503; Phænix Bank v. Hussey, 12 Pick. 483; Dickens v. Beal, 10 Peters's R. 572; Bank of U. S. v. Daniel et al. 12 Peters, 32, 54-5. A protest of a foreign bill of exchange, in a foreign country, is proved by the notarial seal; but the protest is only prima facie, not conclusive evidence of the dishonour of the bill. Nelson v. Fotterall, 7 Leigh, 179. Bank checks are, substantially, the same as inland bills, and may be declared on as such; coming within the general rule of bills, the holder must use due diligence to get the money of the bank on which 'tis drawn. The bank must first be resorted to, and in reasonable time. Cruger v. Armstrong et al. 3 Johns. Cas. 5. But if the drawer has sustained no damage by the delay in making demand, he will not be discharged. Therefore, where a check was drawn in March, 1800, and was not presented till October following, and the drawer, after the date of the check, had drawn large sums from the bank, and payment was re Act of January 13, 1818-January 1, 1820. R. C. ch. 125. non-acceptance or non-payment,(b) the drawer or endorser shall be subject to the payment of one per centum damages thereon; and the bill of exchange or draft shall carry an interest of six per centum per annum, from the date of the protest, until the money therein drawn for shall be fully satisfied and paid, any thing in any law to the contrary notwithstanding. Dec. 28, 1795, c. 191, R. C. Amend. at Rev. 1819, giving 6 per cent. int. in lieu of 5. 2. § 2. If a bill of exchange, for the sum of sixteen dollars and sixty-seven cents, or upwards, dated at any place in Virginia, drawn upon a person at any other place therein, or in the United States, or in the territories thereof, or the District of Columbia, expressed to be for value received, and payable at a certain number of days, weeks or months after date, being presented to the person, upon whom it shall be drawn, shall not be accepted(c) by subscribing his name, with his proper hand, to the acceptance, written at the foot, or on the back of the bill, or being accepted in that manner, and not otherwise, shall not be paid(d) before the expiration of three days after it shall become due, the person to whom it shall be payable, or his agent or assigns, may cause the bill to be protested by a notary public, or, if there be no such, by any other person, in presence of two or more credible witnesses, for non-acceptance, in the form or to the effect following, written under a fair copy of the bill: Know all men, that I, on the day of at the usual place of abode presented to him the bill, of which the above is a did not accept, wherefore I, the said of the above named this day of copy, and which the said do hereby protest the said bill. Dated at Or, for non-payment after acceptance, in the same form, or to the same effect, except that the words, presented to him the bill, of which the above is a copy, did not accept, shall be left out, and instead of and which the said them the words, demanded payment of the bill, of which the above is a copy, and which the said did not pay, be inserted. And the drawer, such protest being sent to him, or notice thereof in writing(1) being given to him, fused because the drawer had no money when the check was presented, it was held, that the drawer was liable, notwithstanding the delay in presenting, as it did not appear that he had sustained any damage by the delay. Conroy v. Warren, Ib. 259: and see Best, J. in Rhodes v. Gent, 5 Barn. & Ald. 244. But, as between the holder of a check, and an endorser or third person, payment must be demanded within a reasonable time. Murray v. Judah, 6 Cowen, 484; Merchants Bank v. Spicer, 5 Wend. 443. Although 'tis said that checks are like inland bills of exchange, and are to be governed by the same principles, greater diligence is required in presenting them than in presenting bills of exchange: To charge an endorser of a check, it must be presented with all dispatch and diligence consistent with the transactions of other commercial concerns-and such demand must be shewn in an action against an endorser, though the drawer had no funds in the hands of drawee, nor any reasonable expectation that his check would be paid-and, under ordinary circumstances, a demand must be shewn to have been made, in reasonable time, on the drawee before holder can sue the drawer(Murray v. Judah, 6 Cowen, 484,)—but un der these circumstances, of no funds, &c., a demand would not be necessary to sustain an action against the drawer. The Mohawk Bank v. Broderick et al. 10 Wend. 364. Checks over due are not on the same footing with bills of exchange and promissory notes, in the hands of a bona fide receiver. See Rothschild v. Correy et al. 9 Barn. & Cres. 388. (b) See Windle v. Andrews, 2 Barn. & Ald. 696. (e) From 3 and 4 Ann. ch. 9, § 4. (d) From 9 and 10 Will. 3, ch. 17. (1) See Buller's N. P. 271; Cromwell v. Hynson, 2 Esp. N. P. R. 511; 6 Mas. R. 386. A copy of the protest for non-acceptance need not accompany the notice of dishonour; it is sufficient to produce it at the trial. Wallace v. Agry et al. 4 Mason, 344. In an action by the holder against the endorser, on a bill of exchange, whereof the drawer has refused acceptance, when it was presented, and afterwards refused payment when demanded at maturity: Held, not enough to charge the endorser to prove protest for non-payment and due notice thereof to endorser; it is necessary to prove due notice to him of the dishonour of the bill by the non-acceptance. Thompson v. Act of January 13, 1818-January 1, 1820. R. C. ch. 125. or left at the place of his usual abode, within a reasonable time thereafter, shall pay(e) the money mentioned in the bill to the person entitled to it, with interest and damages as aforesaid; and he, to whom the bill shall be payable, neglecting to procure the protest to be made,(f) or due notice thereof to be given, shall be liable for all costs and damages accruing thereby. Oct. 1786, c. 68, 12 Stat. Larg. 358; 1786, July 1; 1787, c. 29, R. C. 3. § 3. If the bill shall be lost or shall miscarry, the drawer shall sign and deliver another of the same tenor, sufficient security being given to indemnify him against all persons who may claim under the former. Ibid.(g) Cumming, 2 Leigh, 321; U. States v. Baker's adm'x, 4 Wash. C. C. R. 464. (e) Immediately on the drawee's refusal to accept, the holder's right of action against the prior parties accrues, though the time for which the bill was drawn, be not elapsed. Ballingalls v. Gloster, 3 East, 481; Miller v. Hackley, 5 Johns. R. 375; Sterry v. Robinson, 1 Day's R. 11; Lenox v. Cook, 8 Mass. R. 460. And this right carries with it the right to damages as a necessary consequence. Weldon et al. v. Buck et al. 4 Johns. R. 144. The right of action is complete by the non-acceptance, protest and notice, and 'tis wholly unnecessary afterwards to make any presentment for payment, &c., and if the declaration avers presentment for payment, &c. they are immaterial and need not be proved. Evans v. Gee, 11 Peters's R. 80, 84. Wallace v. Agry et al. 4 Mason, 336, 142. The general law merchant requires presentation on the third day of grace-and, on the general issue being joined on a declaration, counting on the general lawproof of presentation on the fourth day is not admissible. It seems, that when a bill is made payable at a place or bank, at which there is a special established usage, that bills there payable shall be presented on the fourth and not on the third day of grace. Such special usage must be alleged in the decision on such bill-otherwise, proof of presentation on the fourth day of grace, is not admissible. Jackson's adm'r v. Henderson et al. 3 Leigh, 196; see Renner v. Bank of Columbia, 9 Wheat. 581, 587, &c.; Lincoln & Kennebeck Bank v. Page, 9 Mass. R. 155; Pierce v. Buller, 14 Mass. R. 303. If a person not a party to a bill of exchange put his name upon it in blank, without any consideration, he is not liable as an endorser: Scott v. Call et al. 4 Call, 402; otherwise, if there be a consideration for the endorsement. Fitzhugh et al. v. Jones ex'r, 6 Call, 5. It is the settled doctrine of the English and American courts, that a bona fide holder of a bill, may write over a blank endorsement directing to whom it shall be paid, at any time before or after the institution of suitand the holder by so doing does not become an endorser. Evans v. Gee, 11 Peters's R. 80. (f) See Windle v. Andrews, and authorities cited; 2 Barn. & Ald. 696. (g) If A purchase a bill of exchange of B, which is lost bofore it is presented, and B refuses to renew the bill, A may recover the purchase money, by an action of indebitatus assumpsit, against B. Murray et al. v. Carrot et al. 3 Call, 373. On the subject of lost bank notes, it was decided in the case of The Bank of Virginia v. Ward, 6 Munf. 166, 169, that the bona fide owner of a bank note, having transmitted one half thereof by mail, which has been stolen therefrom, or lost, cannot demand payment from the bank, of any part of its amount, in consequence of holding the retained half merely; but that he is entitled to demand the whole amount of the said note, on satisfying the bank of the verity of the above facts, or establishing them by the judgment of a court of equity, and giving in either case, a satisfactory indemnity, to secure the bank against future loss, from the appearance and setting up of the other half of such note. See Ex parte Greenway, 6 Ves. jun. 812; Mossop v. Eadon, 16 Ves. jun. 431; Pierson v. Hutchinson, 2 Campb. Cas. 211; Mayor et al. v. Johnson et al. 3 Campb. Cas. 324; Campion v. Terry, 3 Brod. & Bing. 295; Rowby v. Ball, 3 Cowen, 305; Bullet v. Bank of Penn. Cir. Ct. U. S. Penn. Dist. April 1808, Niles' W. Reg. 17 vol. 123, 124, and 2 Wash. Cir. Ct. Rep. 172; Patton v. State Bank, and Same v. Bank S. Carolina, Const. Ct. S. Car. May 1820, Niles' W. Reg. 18 vol. 340; reported in 2 Nott & M'Cord, 464; and Martin v. Bank of U. S. Cir Ct. U. S. East. Dist. Penn. Oct. 1821, 4 Wash. C. C. Rep. 253. The cases in Penn. and S. Carolina, presented facts similar to those in Bank of Virg. v. Ward, but in those cases, the bona fide holder of the half part, was permitted to recover at law, the whole amount, and without an indemnity to the banks; on the ground, that by cutting the note, its negotiability was destroyed, and therefore, the holder of the lost part, must have taken it subject to the equity of the original holder, who retained the other part, and consequently if the bank paid the lost half, it would be in its own wrong. In the last case it was also decided, that the bank cannot free itself from such liability, by notifying to the holders of its notes, Act of January 13, 1818-January 1, 1820. R. C. ch. 125. that in case they voluntarily cut them into parts, they would not be paid, unless all the parts should be brought together. Where a bank note is cut in two, and one half sent by mail and lost, the holder of the remaining half has a right to demand payment of the bank, on presentation of the half remaining in his possession, proving ownership, and giving bond with adequate security for the indemnification of the bank. If these pre-requisites are not complied with, and the bank is sued, in consequence of refusing payment, the holder will not be entitled to interest or costs. Farmers Bank of Virginia v. Reynolds, 4 Rand. 186; Hinsdale et al. v. The Bank of Orange, 5 Wend. 378. The holder of bank bills cut into two parts for the purpose of safe transmission per mail, is entitled to recover of the bank the amount of the bills, where it appears that the bills were actually mailed and that only one set of the halves came safely to hand, and such recovery may be had under the common money counts. The holder of a bill of exchange cannot, by the custom of merchants, insist on payment by the acceptor, without producing and offering to deliver up the bill; and therefore it was held that the endorser of a bill having lost it, could not, in an action at law, recover the amount from the acceptor, although the loss was after the bill became due, and the endorsee offered an indemnity. Hansard v. Robinson, 7 Barn. & Cress. 90; Macartney v. Graham, 1 Simons, 285. See Fales v. Russell, 16 Pick. 315. It is certainly a general rule, that the title to personal property cannot pass without the assent of the owner; the exceptions to this rule have been tolerated for the benefit of commerce, and on the principle of permitting a particular injury, rather than a general inconvenience. The bona fide holder of a bank note, or of a bill of exchange payable to bearer, has a title to the money due thereby, though the former owner parted from it against his will, as by loss or robbery. See Miller v. Race, 1 Burr. 452; Grant v. Vaughan, 3 Burr. 1516; Lawson v. Weston, 4 Esp. R. 56, and Gill v. Cubitt et al. 3 B. & C. 466; Down v. Halling et al. 4 B. & C. 330; Snow et al. v. Peacock et al. 2 Car. & P. 215; 3 Bing. 406, S. C.; Slater et al. v. West, 3 C. & P. 325; De La Chaumette v. The Bank of England, 9 B. & C. 208; Strange v. Wigney, 6 Bing. 677, in which the principle is explained and qualified. See Crook v. Jadis, 5 Barn. & Adolp. 909, and Backhouse v. Harrison, ibid. 1098, in which 'twas decided, that to an action by an endorsee against the endorser of a bill of exchange, who had lost the bill by accident, it is a good defence that the plf. took the bill fraudulently, or under such circumstances that he must have known that the person from whom he took it had no title; or that the plaintiff was guilty of gross negligence in taking it: but it is no defence, that plf. took it under circumstances in which a prudent and cautious man would not have taken it. Gill v. Cubitt, 3 Barn. & Cress. 466; strongly questioned by Patteson, J. See his remarks, and Goodman v. Harvey, 6 N. & M. 372. These instruments are universally treated as money by the consent of mankind, and it is necessary for the purposes of commerce that their currency should be established and secured; and the reason, why they, and money are not recoverable, is, that they have passed into currency. But, mere securities, or documentary evidences of debt, not possessing the character of money, or circulating medium, as military certificates, Wilson v. Rucker, 1 Call, 500; or, treasury notes of U. S., Myers & Son v. Friend and Scott, 1 Rand. 12; are not within any of the exceptions to the general rule, being without their reason. See, however, Wookey v. Pole et al. Nov. 1820, Barn. & Ald. 1-21, in which it was decided, after a full discussion, that an exchequer bill, is within the exceptions to the general rule, and that the transfer of the property therein, is to be governed by those rules which regulate the transfer of the property in bank notes and bills of exchange; and not by those, which regulate the transfer of property in goods and chattels. Bayley, J. diss. As to the effect of paying a forged note, or bill, see Price v. Neal, 3 Burr. 1354; Smith et al. v. Mercer et al. 6 Taunt. 76; Levy v. Bank of U. S. 1 Binney, 27, 4 Dall. 234; Gloucester Bank v. Salem Bank, 17 Mass. R. 33, and the authorities in those cases cited. U. S. Bank v. Bank of Georgia, 10 Wheat. 333; Wilkinson v. Johnson, 3 B. & C. 428; Cocks et al. v. Masterman et al. 9 B. & C. 942. After a blank endorsement of a bill of exchange originally payable to order, a bona fide holder may restrict its negotiability by a full endorsement,-as to A B, or order; in which case, a subsequent receiver of the bill, must deduce his title under A B, mere possession giving him no title thereto : and he has no right to strike out the full endorsement, [see Thompson v. Robertson, 4 Johns. R. 27, 31,] and make his claim under the prior blank endorsement. Myers & Son v. Friend & Scott, 1 Randolph, 12; Ancher et al. v. Bank of England, 2 Doug. 638. But if it appears in evidence, that the full or special endorsement was made to the endorsee, as agent for the special endorser, the latter has a right to strike out such endorse-/ ment, and thereby re-invest himself with the legal title. Myers & Son v. Friend & Scott. The fact of agency, does not appear in the statement of this case, but Roane, J. notices and relies on it, in delivering the opinion of the court. See Dehers v. Harriot, 1 Show. 163; Bank of Utica v. Smith, 18 Johns. R. 230. The supreme court of U. S. after an examination of the cases on the subject, is of opinion, that, if any person who endorses a |