RIVES & MATHER vs M'LOSKY & HAGAN, 5 Stew. & P. 330

THORNTON, J. This action was brought by the defendants in error, against the present plaintiffs, to recover the amount of a promissory note, executed to them, by the said plaintiffs; and the defence relied upon, grew out of a a negotiation or settlement had between the parties, in October, one thousand eight hundred and twenty-six, at which time sundry notes were transferred or handed over to the said defendants, as collateral security, and, among others, a note for one thousand four hundred and foiN ty-six dollars and fifteen cents, executed by one D, H. Burke, to F.

Vaughan & Co., due in May, one thousand, eight hundred and twenty-seven. This note, which is an exhibit to the bill of exceptions taken in the cause, appears to have been indorsed in the following'manner: — “ F. Vaughan & Co., per Geo. M. Rives,” “ Geo. M.

Rives,” “ Thomas Mather.” Various points touching the duty devolved, by law, upon the holders of notes or bills, who take them as collateral security to a pre-existing debt, have been argued by the counsel; but, from the view which we take of the case, we do not feel called upon to decide them, except so far as it appears from the bill of exceptions, that they were brought into contest and decided upon by the Court, whose decision is sought to be reversed by an appeal to this tribunal.

It is not too late, to allege as error, in the appellate Court, a substantial defect in the pleadings, even though it were not objected to, in the Court below. Our statute of jeofails only declares, that no cause shall be reversed, &e., after verdict or judgment for any matter on the face of the pleadings, not previously objected to — provided the declaration contains a substantial cause of action, and a material Issue be tried thereon.

But, for supposed errors, by which a party shall think himself aggrieved, during the progress of the trial,, he shall tender his bill of exceptions to the judge, stating the points wherein he is supposed to err in any directions or decisions; which, when signed and sealed, shall become a part of the record of the cause. The appropriate office of this bill of exceptions, is to exhibt upon the record, all such decisions as may be made, whereby testimony offered and objected to, is admitted or rejected; and such instructions or directions as may be given, with regard to the effect of such testimony.

If testimony offered, were rejected by the Court, it is clear, that without the exception taken, there would be no revisal of such rejection; and so, if it appeared, that testimony were admitted, which might seem to be improper, yet, if no objection were made, by exceptions, taken to its admission, it could not sustain an assignment of error: for, in the language of this Court, in the' case of The Tombecbee j^mik an¿¡ Malone the adverse party might have supplied the defect, or waived the matter objected to.

With regard, also, to directions or instructions, asked and refused or given to the jury, as to the effect of testimony, the point of law contained in such instruction, can,only be adjudged; as to its relevancy, by the revising tribunal, when so much of the testimony as constitutes its substratum is exhibited to that tribunal; The result of those reflections is, that every point raised in this Court, for our determination, which relates to the testimony in the cause, should have first been‘distinctly presented to the Court below; otherwise, in drawing the bill of exceptions, all the proof to which it relates, can not be presumed to have been embrreed in the bill; and the presumption will be indulged to sustain the judgment, that such sufficient testimony was in fact introduced, but not spread upon the record, because no use for it could have been fairly anticipated.

To apply those reflections to the case in hand.— The point on which the chief stress of the argument of the plaintiffs’ counsel rested, was. that it was the duty of the defendants in error, to have used all the diligence necessary by the law merchant, to have fixed the liability of F.

Vaughan & Co., who were endorsers, as-above set forth, of the note transferred to them, as security; that by the use of such diligence alone, could they have retained their right to demand payment of the original debt: and that, as no such diligence appeared upon the record, to have been exerted, there was, of course, no right of recovery in the plaintiffs below.

Now, as so motion for instruction was made, upon that point, and none given, it would nor, nave been professional or pronta, to have incumbered the record with any testimony concerning it. d'Li, record, as it is, Joes not exclude the supposition, that proof was introduced to shew, that the indorsement of F.

Vaughan & Co. was put there without authority, that it was transferred from them by delivery alone, with an express understanding, that legal diligence was waived, or that they themselves had been instrumental in the supposed laches—in either of which states of the proof, the question of law urged by the counsel, would not have been raised, except perhaps hyp itheiically, upon the disbelief of the supposed testimony. Independently, however, of this ground for reversal, which we have thus disposed of, as not properly presented by the record, there were others relied on to which it becomes our. duty to attend.

The bill of exceptions presents four particular requests for directions by the Court, all of which, were refused as asked, and afterwards a direction given in extensa, by the Court. The refusal to give the particular directions is excepted to, as also is the substituted charge. I consider the doctrine to be, that if a party, in point of law, is entitled to a particular direction of the Court, and the Court refuses to give it, it is error, although it may, afterwards pive a direction, which, by inference and argument, may be pressed to the same extend.

Then, we must consider whether in point of law, the plaintiffs in. error were entitled' to those particular directions, and, they were, whether,in the directions subsequently given, the same propositions were so clearly advanced, as not to need the aid of inference and argument, by the jury. The first charge is understood to be abandoned by the counsel — so nothing need- be said in relation to that.

The second is only insisted on, quoad the last clause, which is in these words, “ and were entitled to notice as such, (i. e. as indorsers,) of the dishonor of Burke’s note.” According to the principle recognised heretofore, by this Court, as the party was not entitled to the particular charge as asked, the Court might well have refused it in tot'), not being bound to modify or reform it.

But, by reference to the direction given, we discover that the response to this part of the second charge, was an unequivocal affirmance of it.— It is given in these words: “That the defendants, if Burke’s note was given as collateral, were entitled to notice of its non-payment.” The propriety of refusing the third charge was conceded, if the word “ of,” the penultimate in the sentence, should be construed, here, as synonymous with “ from ” — to which signification we think it is most fairly obnoxious.

The sentence reads thus, “ That the defendants were discharged from all liability on the note sued on, the plaintiffs not having used due diligence in collecting said note of Burke.” But, whether we give to this particle “of,” the meaning of a preposition, noting some property, as descip-tive of the note, or take it as the synonym of “from,” it is not very material, as we consider the charge asked to have been given, by the Court, in its most extended signification.

It is complained of, to be sure, as-referring matter of law to tine jury; but we do not think that this complaint is available here, as the Court was not requested to say in what the due diligence spoken of, consisted. If such direction had been asked and refused, or given erroneously, then there might have been just cause of complaint.

The fourth direction sought from the Court, was, that if the jury believed the defendants to have been injured by the failure of the plaintiffs to notify them of a proposition made by Burke, to discharge the note held as collateral security, with negroes, then they were discharged from further liability on the note sued upon. This charge was wholly refused, and the one given in lieu of if, can, by no inference or argument, be pressed to its extent. Then, according to the rule above laid down, we must determine whether the defendants below were, in point of law, entitled to have had it.

We feel no hesitation in deciding that they were not. If the plaintiffs below were-bound to have used all the diligence which the law merchant imposes, in regard to this collateral security, and stood in the character' of indorsees alone, which was contended for, this requirement is not a part of their obligation.

If they be viewed as agents, in regard to the collateral note, good faith would not necessarily have been broken, in the omission to communicate the proposal of the debtor; and, in such case, though a loss may have finally resulted, it would clearly have been “ damnum absque injuria it is the opinion of the Court, that there is no error ; and that the judgment be affirmed. Stewart 271. 7 Cranch, 506, 544.