I am compelled to dissent from the opinion of my brethren in this case, because I think that the certificate made by Simpson, of the amount due upon the order sued on, was not intended by him as an acceptance of the order*, but merely as a statement of the amount due, on account of Carsen & Vance.
The money had been garnisheed in the hands of Simpson & Jackson, in a suit against Tomlinson, the holder of the order, before it had been presented for payment or acceptance; and the endorsement might be, and doubtless was, made for the purpose of informing Tomlinson of the amount due, without any intention, upon the part of the defendants, to become legally liable therefor. There is nothing in the endorsement which would warrant the Court in presuming that the defendants intended, unconditionally, to accept the order. In fact, when we take into consideration that the money had been previously garnisheed in the hands of the defendants, of which fact Tomlinson was doubtless informed, and that the defendant, Simpson, in making said endorsement upon the order, has carefully abstained from the use of any words which would tend to show an acceptance on his part, we are led to the conclusion that the endorsement was only intended as a memorandum of the amount due upon the account, and not as an acceptance of the order.
The majority of the Court, in deciding this case, have passed upon several intricate questions of commercial law, which I do not think involved, and therefore express no opinion upon the conclusions to which my brethren have arrived.
A rehearing being asked for, Burnett, J., delivered the opinion of the Court, Terry, J., concurring.
This case was decided at the last April Term of this Court, when the judgment of the Court below was reversed, and that Court directed to render judgment for the plaintiff. The defendant now asks this Court to so modify the judgment, as to allow a new trial in the Court below. The facts stated in the petition of defendant, and verified by the affidavit of his counsel, renders it proper we should state the grounds upon which we are compelled to deny the application.
In the opinion delivered, the plaintiff was considered as the innocent purchaser of the accepted order for value, and our decision was based upon that ground. The learned counsel for the defendant insists, that we were mistaken in this view, as no evidence was preserved in the record, and the entire case, so far as the facts were concerned, rested upon the special verdict of the jury.
In the answer of defendant, it was alleged, “ that at the time of the alleged endorsement and transfer to the said plaintiff, he, the said plaintiff, had full knowledge of the aforesaid judgment, *108execution, and levy, and the refusal of this defendant to accept the said order or hill of exchange.” All the issues raised by the pleadings were submitted to the jury, and the jury among other things found, that “ Tomlinson afterwards, and on the said fifteenth day of April, for a valuable consideration, indorsed and delivered said order to plaintiff.”
The allegation by defendant, that the plaintiff, at the time of the indorsement, had full knowledge of the circumstances under which the acceptance was made, was an affirmative averment on the part of the.defendant, which he was bound to prove. The finding of the jury does not sustain this affirmative allegation, but, on the contrary, substantially negatives such an idea. When the jury found that the plaintiff was a purchaser for value, they found, prima facie, that he was an innocent purchaser, and there was nothing in the finding to rebut this presumption. There was no motion made to set aside the verdict of the jury, and for a new trial. The plaintiff moved for judgment upon the verdict; the Court gave judgment against him, and he appealed.
The only question presented for the determination of this Court, was the action of the Court below in rendering judgment against the plaintiff upon the facts, as found by the jury. This Court could not review the facts of the case, as no motion was made for a new trial. Dewey v. Bowman, April T., 1857. And as the record, disclosed no error in the Court below in rejecting proper, or in admitting improper, testimony, and as no new trial was demanded by either party, this Court could not order a re-examination of the issues of fact. All this Court could do, under the state of case disclosed by the record, was either to affirm or reverse the decision of the Court below, and order a final judgment upon the verdict of the jury.
The defendant states, in his petition, that on the trial, he offered to prove full knowledge on the part of the plaintiff, at the time of the endorsement of the paper to him, of all the circumstances under which the acceptance was made; that the evidence was rejected by the Court, and exception duly taken by the defendant, but that no statement of the evidence offered or given by the defendant was prepared, for the reason that judgment was rendered in his favor.
If the verdict was unjust to the defendant in not finding the true state of facts, he should have made his motion for a new trial, alleging the true grounds upon which the motion was made. It is the duty of parties to take their objections at the proper time, and in the proper order. The defendant having made no objection to the verdict, and having rested his case upon the facts as found by the jury, it is now too late to ask for a new trial. He should have made his motion for a new trial in the Court below, and if overruled, should have excepted and made a proper statement of the case. Had he done so, the ap*109peal by the plaintiff would have brought up the whole record, and this Court, in reversing the case, could have ordered a new trial. Dred Scott v. Sandford; United States v. Smith, 11 Wheat., 172. But there is nothing in the record to show that the Court rejected proper testimony, or that the verdict of the jury was contrary to the evidence, and this Court cannot look beyond the record. Parties should be careful to see that the record contains all the facts of the case. If they submit to a partial statement of facts, this Court can afford them no relief.
Motion denied.
Murray, C. J.I am compelled to dissent from the foregoing opinion, for the same reasons that I dissented from the original opinion; being fully satisfied that the facts did not warrant the plaintiff’s recovery.