Where all that is due is tendered, and the holder has mislaid the bill or note, so that he cannot give it up, and payment is, on that account, postponed, the interest shall be computed up to the time of such tender only. (39)

The language of 3 & 4 Anne seems to imply, that a neglect to procure a protest upon any inland bill for the payment of £20, upon which a protest might have been made, (39), would preclude the holder from recovering such interest or expenses from any person entitled to notice of the nonacceptance or non-payment; but the contrary is now settled. (40)

Whether it would preclude the holder of a coal-note given under 3 Geo. 2. c. 26. § 7. is not decided.

A jury is not bound to give interest upon a bill or note, and where the bill or note has lain dormant for many years without any claim being made upon it, they may properly refuse it. (40*)

And for any time that it has been in the hands of an alien enemy, interest ought not to be allowed, because during that time payment of the principal would have been illegal. (40*)

[On a note made in one place, payable in another, interest is recoverable according to the legal rate of the place where it is payable. (a)

(39) See 3 & 4 Anne, c. 9. § 5. ante, p. 168. note (86). (40) See Windle v. Andrews, ante, p. 168. n. (85.)

(40) Du Belloix v. Lord Waterpark, Hilary, 1822. Payee against maker on note for £800 of 27th December, 1787, payable six months after date. The cause was tried in 1821; there was was no evidence of any claim upon the note from the time it was made, and for many years of the intermediate time plaintiff had been an alien enemy: the jury asked if they were bound to give interest, and Abbot C. J. told them that was for their consideration; and they gave none. A motion was made to increase the verdict by adding the interest, or for a new trial, but the court was clear that the question of interest was within the province of the jury; that it was in the nature of damages for the nonpayment of the debt, that they were to say whether there should be any and what damages on that account, and that in this instance there was no ground for saying they had not exercised their discretion rightly. Abbot Č. J. added, that during the time the plaintiff was an alien enemy, it would have been illegal to have paid him the debt, and that for that interval therefore damages could not legally have been given the rule was refused.

[(a) Scofield v. Day, 20 Johns. R. 102.]

So if a bill be drawn in one country, and payable and accepted there, in an action against the acceptor, interest is recoverable only according to the legal rate of that country, although the suit is brought in another country. (a) (b)]

[(a) Foden v. Sharp, ante, p. 31.]

[(b) Where a note is discounted at less than the legal rate of interest, interest at the legal rate is recoverable against an endorser in an action on the note by the party that discounted it. Mechanics' Bank v. Minturn, 19 Johns. R. 244.

Where the endorsee of a note purchases it from the endorser, the former can recover of the latter only the consideration actually paid, though less than the amount of the note. But the maker is liable for the full amount. Braman v. Hess, 13 Johns. R. 52; Munn v. Commission Company, 15 Johns. R. 44. See also Brown v. Mott, 7 Johns. R. 361; and Wiffen v. Roberts, Esp. R. 261.

An endorsement is however prima facie evidence of a full consideration. Riddle v. Mandeville, 5 Cranch, 322. It is otherwise if it be made without recourse. Welch v. Lindo, 7 Cranch, 159.

In an action upon three notes payable with 3 per cent. interest per annum if paid at maturity, "if not, 6 per cent. interest to be paid;" and upon a fourth payable without interest " until the note is out, if not paid then, lawful interest until paid ;" the notes not having been paid when they fell due, judgment was given for their amount, with 6 per cent., the lawful interest, from the date to the time of the judgment. Dagget v. Pratt, 14 Mass. R. 177.

In an opinion of Chanceller Kent, on a case submitted to him since his retiring from office, as to the necessity of producing the very bill of the set which was protested and the original protest, in giving notice to the drawer or endorser of a bill, he says, "This question about the production of the identical number of the set that was accepted and protested, affects nothing but the point of interest. If the holder calls on the drawer or endorser for payment, and shows him a copy of the protest and one of the set of bills, but not the one that was accepted and protested, and the drawer offers to pay the bill and protest and damages, and re-exchange, provided the bill itself be produced, and not otherwise, and it is not produced, is he bound to pay interest from that time? I am of opinion that he is not bound to pay interest, until the bill be produced, or its loss accounted for, for he is not in default of payment until then. The drawer is entitled to the accepted bill if he is obliged to pay it, and if he offers to pay, but insists on the bill previously, and the other party for his own convenience chooses to retain it, or leaves it abroad, I conclude that interest will not begin to run until a redemand accompanied by the bill." Though the preceding remarks refer only to the case of a bill accepted and protested for nonpayment, yet the author inclines to the same opinion with regard to a bill protested for non-acceptance. He cites Beawes' Lex Merc. 424. 74. "No drawer or endorser is obliged to make restitution on sight of the protest alone, nor on sight of the protest and the unaccepted bill, when one of them hath been accepted; but he is obliged to give a satisfactory security to the remitter on his producing only the protest, and to make payment when this and the accepted bill are presented together.”—He also cites Code de Commerce, Art. 148, 151. See also Dent v. Dunn, ante, p. 223.]

The only incidental expense in the case of the person who made the presentment is the charge of the notice and protest; in the case of any antecedent party, that of the return of the bill or note must be added.

Upon a foreign bill the (41) re-exchange forms a part of the expense of the return, aud let the bill be returned through ever so many hands, the (41) drawer is liable for the re-exchange upon each return.

And the (42) drawer is liable for the re-exchange and every other expense arising from the non-acceptance or nonpayment, notwithstanding the dishonor of the bill is expressly ordered by the country on which it is drawn.

But the acceptor is (43) not liable for re-exchange; his contract cannot be carried farther than to pay the sum specified in the bill, together with legal interest, where interest is due.

[It has been held, that the endorser of a note, who has been sued by the endorsee, and obliged to pay the costs of the suit, cannot in an action against the maker, compel him to pay those costs, in addition to the amount of the note. (a)

(41) Mellish v. Simeon, 2 H. Blackst. 378. A bill was drawn in London upon Paris, and negotiated through Holland; before it became due the French government prohibited the payment of any bill drawn in England, in consequence of which it was dishonored, and sent back through the different hands by which it had before been negotiated, to London; the re-exchange between Paris and Holland, raised the bill from £603, 19s. 10d. to £905, 13s. 9d., and the re-exchange between Holland and London to £913, 4s. 3d., which the plaintiff (the payee) paid; and upon an action by him against the drawer, Eyre C. J. left it to the jury, whether the defendant was liable for the re-exchange occasioned by returning the bill through Holland, and they found that he An application was made for a new trial upon the ground that the defendant was not liable for the re-exchange, because there was no default in him, the payment being prohibited by the government of France; but the court held it immaterial why the bill was not paid, that as it was not paid, he was liable to all the consequences, of which the re-exchange was one, and the rule was refused.

was.

(42) See the preceding note, (41). Vide Detastet v. Baring, 11 East's Rep. 265.

(43) Thus in Napier v. Schneider, post., the court was clearly of opinion that the defendant, who was acceptor of a bill, was not liable for re-exchange. S. P. R. acc. in Woolsey v. Crawford, 2 Campb. 445.

[(a) Simpson v. Griffin, 9 Johns. R. 131. The court says, "If the endorser of a note be duly fixed, he ought to pay it, without waiting to

Where the endorsee of a note sued the maker, and failed to recover on account of the illegality in the consideration between the maker and payee, it was held that in an action by the endorsee against the payee who had endorsed the note to him, he could only recover the principal and interest of the note, and not the costs or expenses of the suit against the maker. (a)]

If, by the terms of a note, the holder has the option of being paid either at the place where it was made, or, "according to the course of exchange" between that place and another, he (44) may insist upon being paid according to such course of exchange as exists between them at the time when the note becomes due. (b)

And it makes no difference, that at the time when the

be sued. It is his own fault or misfortune that subjects him to costs. He can only look to the maker for the amount of the note." Simpson v. Griffin, 9 Johns. R. 131. But see Jones v. Brooke, post, ch. xiii. note (8), and Smith v. Woodcock, ante, p. 218. note (9).]

[(a) Copp v. M'Dugall, 9 Mass. R. 1.]fee the case.

(44) Pollard v. Herries, 3 Bos. and Pull. 335. The defendant gave the plaintiff a note for payment, at seven days' sight, of 1200 livres Tournois, and interest, drawn at Paris, and expressed to be "payable as above in Paris, or, at the choice of the bearer, at the Union bank in Dover, or at my usual residence in London, according to the course of exchange upon Paris." In an action on this note the defendant paid £18, 16s. 6d. into court. The jury found a verdict for the plaintiff, with £40, 6s. 10d. damages, subject to the opinion of the court upon a case stating the making of the note, and the due presentment in London, and that, at the time when the note was made, there was a direct course of exchange between London and Paris, that that exchange had fallen, and before the note became due had altogether ceased; that, according to the last direct course, £18, 16s. 6d. would be sufficient to pay the note that when the note became due there was no direct course, but that a circuitous course of exchange through Hamburgh existed, and that, according to that circuitous course, the £59, 3s. 4d. would be due upon the note. The court held, that the plaintiff had a right to insist upon being paid according to such circuitous course, and the verdict therefore was entered for £40, 6s. 10d.

[(b) But in an action brought in New York on a note made in Canada payable to the plaintiffs, residents in England, "with interest until paid in England,” it was held, that "the plaintiffs were not entitled to any allowance on account of the difference of exchange with England :" but that they were entitled to English interest up to the time of the judgment, not to the time when the money might in the ordinary course of business be remitted to England. Scofield v. Day, 20 Johns. R. 102.

In South Carolina it is provided by statute that in any action on any bill or for any debt payable in any other country, the jury may give a verdict for such difference of exchange as shall be just. St. S. Car. 1796. 2 Brev. Dig. 48. See also note (a), p. 238, post]

note was made there was a direct course, and at the time when it becomes due, there is no direct, but only a circuitous course of exchange between them.

On the return of a bill drawn here for the payment of pagodas in the East Indies, the (45) practice is to allow for the sum payable by the bill interest and all incidental charges, after the rate of 10s. for each pagoda, and five per cent. thereon from the expiration of thirty days after notice of the bill's dishonor; and it has been (45) determined that this practice was lawful, even where the price allowed for each pagoda on the discount of the bill was only six shillings and six-pence. (a)

(45) Auriol v. Thomas, 2 Term Rep. 52. Upon executing a writ of inquiry on a bill for the payment of 800 star pagodas returned protested from India, it appeared that the usage was to charge 10s. per pagoda for bills returned from India protested, and five per cent. after the expiration of thirty days from the notice to the defendant of the bill's dishonor, which included all incidental charges, and that the defendant had agreed to pay accordingly; upon which the jury assessed the damages at 10s. per pagoda, with the five per cent., though the plaintiff discounted the bill at the rate of 6s. 6d. a pagoda; that being then the current price. A rule nisi was obtained to set aside the inquisition, on the ground that this allowance was exorbitant, and the agreement for it usurious; but the court, on cause shewn, thought otherwise, and discharged the rule.

[(a) in most of the United States damages, in addition to the principal sum and interest, are recoverable on bills, both foreign and inland, returned dishonored.

The rule as to damages on bills drawn in Massachusetts upon places out of the United States, as it existed till very lately, appears from the opinion of the Court, delivered by Parsons C. J. in Grimshaw v. Bender. "The rule of damages on foreign bills, established by the law merchant, is in our opinion, absolutely controlled by the immemorial usage of this State. Here the usage is to allow the holder of the bill the money for which it was drawn at par, and also the charges of protest, with American interest on those sums from the time when the bill should have been paid; and the further sum of one tenth of the money for which the bill was drawn, with interest upon it from the time payment of the dishonored bill was demanded of the drawer. But nothing has been allowed for re-exchange, whether it is below or at par. This usage is so ancient that we cannot trace its origin; and it forms a part of the law merchant of the commonwealth." 6 Mass. R. 147. In Barclay v. Minchin, 6 Mass. R. 162, damages were assessed by the same rule.

In a manuscript opinion of Judge Jackson, given since his retiring from the bench, he says, that "the damages and interest, on a protest for non-acceptance, are computed in like manner as on a protest for non-payment;" and that the holder of a foreign bill drawn in this State, and protested for non-acceptance, is, according to the decision in Grim