Suit was brought by Lancaster against Gale, as the drawer of a bill of exchange. On the plea of the defendant, denying the allegations of the declaration, the cause was referred to the jury.
There is nothing before us, except such matter as constitutes the original record. Nothing was brought into it by bill of exceptions.
The objection made here, is, that the bill of exchange was presented for payment, and protested before it was due. If this be so, the drawer would be discharged.
We have nothing before us except the pleadings, writ, verdict and judgment.
What may have been the evidence on the trial, or what questions may have arisen and been decided on the trial, we know not. The bill of exchange and protest are copied into the record, but that does not make them part of it, in the legal technical sense. In Blackwell v. Reid & Co., 41 Miss., 103, it was said that, “ although the statute requires a copy of the writing sued on, to be filed with the declaration, such filing does not make it a part of the declaration; and it cannot be referred to aid the pleading.” The cause of action, *417attempted to be disclosed in the declaration, though very imperfectly set out (so much as to be obnoxious to a demurrer), is, that the bill .of exchange, when due, was presented to the acceptors, for payment, which was refused, and thereupon protested, and notice given. The plea put these facts in issue.
It can hardly be supposed that the plaintiff could have obtained a verdict, without proof of a presentment when due, and proper notice to the defendant, of the refusal to pay on such presentment. There is a clause in the statute of jeofails, Rev. Code, 508, art. 81, which seems to have been provided for just such cases of defective pleadings: “No judgment shall be stayed or reversed, for omitting the averment of any matter, without proving which, the jury ought not to have given such verdict; ” and again: “ For any other defect (besides those previously enumerated), whatsoever, in the declaration or pleading, whether of form or substance, which might have been taken advantage of by demurrer, and which shall not have been so taken advantage of.” The jury could not have returned a verdict for the plaintiff, without proof of a proper demand of payment, refusal, and notice to the defendant. The declaration notified the defendant that he was pursued bn his conditional contract, contingent on default in payment by the acceptors. The allegation of demand of the acceptors, is meagre, and would have been pronounced insufficient in demurrer. It is, “ that the draft was not paid by the acceptors, at maturity.” Only by inference, can it be deduced that the opportunity was offerded, by actual presentment. But the plaintiff could not have obtained a verdict, without proof of the fact.
By a fair and liberal interpretation of the statute of jeofails (which in its terms is very broad), this judgment can be sustained ; the scope of the statute has reference to pleading and practice, and was designed to give to the successful party the benefit of his judgment, by disregarding sundry error, and irregularities, which might have been availed of, if male before verdict and judgment. They are not so broad, how-*418evei, as that a verdict will cure an utter omission to state in pleading a cause of action. 1 Saunders, 228, note 1. As s'ald by chief justice, in Wells v. Woodley, 5 How., 492, "There must be some duty, or obligation stated, which might be a good cause of action.” In that case, the note became due, including days of grace, on the 29th of January, and not protested as averred in the declaration until 28th of following February, yet the verdict was sustained. See also, Grigsly v. Ford, 3 How., 190; Winn v. Levy, 2 How., 903, The same objection was made, as in this case. The judgment was by default against the indorser of the note ; the note fell due on the 14th February, 1837, “ and was presented for payment March 2d after.” The statute puts judgment by non Bum informatics and nil dioet on the same footing as judgments on verdicts. The court say: “ The count would have been bad on demurrer, but the defect would be cured by verdict,” or “by judgment by default.” The reason which underlies these conclusions, is that the defendant has been informed of the nature of the claim preferred against him, and should, before the verdict or the judgment, make his objections and defense, otherwise he will be concluded.
The plaintiff in error, had full opportunity in the circuit Court to have assailed the declaration by demurrer, which Would have insured its dismissal, or compelled a removal of the defects by amendment. And on the jury trial, he could have insured a verdict in his favor, if the creditor failed to pro¥e a demand and notice, or, if dissatisfied with a verdict against him, he could have moved for a new trial, and brought, the case into this court by bill of exceptions.. We are averse to the consideration of questions made for the first time in this court, which were pretermitted in the court of original jurisdiction. Inasmuch as no application was made for a new trial, we must infer that sufficient evidence was before the jury, and that the verdict is right.
Let the judgment be affirmed.