The action usually brought on account of a bill or note, is a special action of assumpsit thereon, but perhaps a spe

shaw v. Bender, (supra,) “entitled to interest on the amount of the bill and charges, from the date of the protest for non-acceptance." He adds, "It is true the Chief Justice speaks of the interest as due, 'from the time when the bill should have been paid;' but I understand that as equivalent to saying 'from the time when the bill was protested for nonpayment,' or from the time of the breach of the contract of the drawer or endorser.' But in the same opinion the rule as to interest on dishonored bills, is considered as being incorrectly laid down by C. J. Parsons. And the author expresses his opinion, that in an action against a drawer or endorser interest is recoverable only from the time notice is given of the dishonor of the bill; conformably to what is conceived to be the rule as to interest in such case in England. This opinion is on the ground that the " 10 per cent. damages are given instead of the expenses or damages on re-exchange, and are to be considered in all respects the same, excepting that they are fixed at an immutable rate, instead of varying with the actual rate of exchange."

By a statute of Massachusetts lately passed it is enacted, that where any bill is drawn or endorsed in the State after the first of April, payable at any place beyond the Cape of Good Hope, in Africa, Asia, or the islands thereof, shall be refused acceptance or payment, the drawer or endorser shall, on due notice and demand thereof, pay the contents of such bill, at the par value thereof, together with twenty per cent. thereon, in full of all damages, interest, and charges; and where any bill so drawn or endorsed and payable at any other place out of the United States, is dishonored, the drawer or endorser, shall on due notice and demand thereof, pay the contents of such bill at the current rate of exchange at the time of demanding payment, and five per cent. damages on the contents of such bill, together with interest on such contents from the time when such bill shall have been refused acceptance or payment, which shall be in full of all damages, charges, and expenMass. St. March 4th, 1826.

ses.

When any bili drawn or endorsed in Massachusetts payable at any place without the State and within the United States, is protested for non-acceptance or non-payment, the drawer or endorser besides the contents of the bill, the costs, and interest, is liable to pay damages to the holder at the following rates, viz. three per cent. if payable in any of the New England States or New York; five per cent. if payable in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or District of Columbia; six per cent. if payable in North Carolina, South Carolina, or Georgia; and nine per cent. if payable in any other part of the United States. One per cent. damages are also recoverable on bills for $100 or more drawn or endorsed in Massachusetts and payable at any place in the State, if it be seventy five miles or more distant from the place where the bill is drawn or endorsed. Mass. St. 1819, c. 41; St. 1820, c. 2.

In New York the holder of a bill drawn there payable at a place out of the United States, protested for non-acceptance or non-payment, is entitled to recover of the drawer or endorser, the amount of the bill at the rate of exchange on the place on which the bill was drawn, at the time of notice given to the party to be charged, and twenty per cent. damages on the amount of the bill at the rate of exchange, the expenses

cial action (46) of debt, debt on an indebitatus, or an (47) indebitatus assumpsit, might be maintained thereon.

of the protest, and interest on the aggregate amount of the bill and damages from the time of notice given to the party to be charged. Hendricks v. Franklin, 4 Johns. R. 119; Weldon v. Buck, 4 Johns. R. 144; Graves v. Dash, 12 Johns. R. 17; Denston v. Henderson, 13 Johns. R. 322.

The rule formerly acted on by the Supreme Court of New York, was the same as that above stated, except that the amount of the bill was calculated at the par of exchange. Spencer J. says, "The twenty per cent. was in lieu of damages, in case of re-exchange, and because there was no course of exchange from London to New York, and to avoid the constant uncertainty and fluctuation of exchange." Hendricks v. Franklin, 4 Johns. R. 119. But this decision has been overruled by the Court of Errors, who have fixed the rule as above stated. Graves v. Dash, 12 Johns. R. 17.

The damages on bills drawn or endorsed in Maine, and payable within or out of the United States, are precisely the same as those above stated with regard to Massachusetts, previously to the statute of Massachusetts of March 6th, 1826. Laws of Maine, 318, statute passed February 28th, 1821.

The damages on bills drawn in Connecticut or Delaware, payable out of the United States, returned protested, are twenty per cent. 3 Griff. Law Reg. 80; 4 Id. 1069.

The holder of a bill drawn or endorsed in Rhode Island payable in any place out of the United States, and returned protested for non-acceptance or non-payment, is entitled to recover of the drawer or endorser ten per cent. damages, charges of protest; and interest from the date of the protest. On bills drawn in the State, and payable in any other part of the United States, five per cent. damages, the charges of protest, and interest from the date of the protest, are recoverable. Laws of R. I. Ed. 1798, p. 444. See also Brown v. Van Braam, 3 Dall.

344.

The damages given on bills drawn or endorsed in Pennsylvania, payable out of the State and within the United States, (except in Louisiana,) are five per cent.; if payable in Louisiana or any other place in North America or its islands, (except the northwest coast of America, Mexico, or any of the West India or Bahama islands,) ten per cent.; if payable in Madeira, the Canaries, Azores, Cape de Verd Islands, Spanish Main, or Mexico, fifteen per cent.; in Europe or its islands twenty per cent.; in any other part of the world, twenty-five per cent. Interest is given in all these cases on the amount of the bill, damages, and charges of protest, from the time of notice; and the amount of the bill and damages is to be determined by the rate of exchange, or value of the money or currency mentioned in such bill, at the time of notice. 7 Laws of Penn. 434.

It was formerly held in this State that the holder of a bill protested for non-acceptance, but not for non-payment, was not entitled to the twenty per cent. damages, but only to such a sum as would purchase a new bill for the same amount, with interest from the time of notice. The court in this case instructed the jury, that if no current rate of exchange was settled, there could be no safer rule than to give damages at the par of exchange. Taan v. Le Gaux, 1 Yeates, 204.

The damages on bills drawn in Ohio on persons living within the

And assumpsit will lie upon a bill or note against a corporation, where such corporation is empowered by statute to issue, indorse, or accept bills or notes. (48)

United States, and out of that State, returned protested for non-acceptance or non-payment, are ten per cent.; if drawn on persons out of the United States, fifteen per cent. 3 Griff. Law Reg. 404.

The damages in Indiana are the same as in Ohio. 3 Griff. Law Reg. 468.

The damages on bills drawn in Illinois payable out of the United States are twenty per cent.; on those payable within the United States ten per cent. 3 Griff. Law Reg. 424.

Upon a bill drawn in Maryland payable in any other State, duly protested, the holder can recover so much current money as will purchase a good bill on the same place at the current rate of exchange, and also eight per cent. damages upon the value of the principal sum mentioned in such bill, and costs of protest, and interest upon the value of the principal from the time of protest; and upon a bill payable out of the United States, the value of the bill is recoverable at the rate of exchange, fifteen per cent. of that value, damages, costs of protest, and interest on the value of the principal sum in the bill from the time of protest. Stat. of Mar. 1785, c. 38. 1 Laws of Maryland, Maxcy's Ed. 558.

The damages on protested bills, drawn in Virginia upon any place out of the United States, are fifteen per cent., and interest from the date of the protest. 1 Virg. Rev. Code, c. 77, § 1. p. 113; 2 Virg. Rev. Code, c. 72, § 1. p. 100. See Slacum v. Pomery, 6 Cranch, 221. The damages on inland bills returned protested are one per cent. 3 Griff. Law Reg. 363.

Any bill drawn in Kentucky, on a person out of the United States, and protested, draws interest at the rate of ten per cent. from the date until paid; but not more than eighteen months interest from the date until it is presented protested to the drawer or endorser. Toulmin's Kentucky Laws, 267, Statute Feb. 6, 1798. No other damages are recoverable upon any bills drawn in Kentucky. 4 Griff. Law Reg. 1141.

On any bill drawn in Missouri payable out of the United States, returned protested, twenty per cent. damages are recoverable; and on a bill payable out of the State, and in the United States, ten per cent. 4 Griff. Law Reg. 627.

In North Carolina upon the protest of bill drawn in that State, payable out of the United States, ten per cent. interest is chargeable from the date until payment is made, but not more than eighteen months interest is allowed, previously to its being presented protested to the drawer or endorser. The damages on such bills are fifteen per cent. with costs and charges of protest; and the damages on the protest of bills drawn in the State and payable in the United States, are ten per cent. with costs, and charges of protest. 3 Griff. Law Reg. 225.

The bolder of any bill drawn in Tennesee, and protested, is entitled to recover ten per cent. interest from the date to the time of payment, but not more than eighteen months interest previously to its being presented protested to the drawer or endorser; and also fifteen per cent. damages on the sum expressed in the bill, with the costs and charges of protest. 4 Griff. Law Reg. 799.

The damages on bills drawn in South Carolina, and returned protested, if payable out of that State, and within the United States, are ten per

Debt (49) may be maintained by the payee against the maker of a note expressed to be for value received,

cent.; if payable in any other part of North America or any of the West India islands, twelve and a half per cent.; if payable in any other part of the world, fifteen per cent. In all these cases all charges, and interest from the time when the bill becomes due, are recoverable; and the damages are to be liquidated by the difference of exchange on the place where the bill is payable. St. S. Car. 1796, 1 Brev. Dig. 487.

The damages in Alabama and Louisiana are the same as in Missouri, stated above. 4 Griff. Law Reg. 586, 697.

In Mississippi ten per cent. damages are recoverable upon foreign bills drawn in that State and returned protested. 4 Griff. Law Reg. 670. It has been held in New York, that where a bill is remitted to pay an antecedent debt, no damages are recoverable against the remitter. In an action by the endorsee against the endorser of a foreign bill returned dishonored, it appeared, that the bill had been remitted by the defendant for the payment of goods which he had. purchased of the plaintiff. The court said, "The plaintiff ought not to be allowed the twenty per cent. damages: the practice on this point we believe to be settled. The reason for that allowance does not apply where a bill is remitted to pay an antecedent debt." Kenworthy v. Hopkins, 1 Johns. Cas. 107.

The person to whom a bill is remitted in payment of an antecedent debt, or a person to whom he endorses it after it is dishonored, and who is acquainted with the circumstances, cannot recover the twenty per cent. damages against an endorser prior to the remitter. The remitter of the bill is the person entitled to the damages, "he having encountered all the hazard and inconvenience of the remittance." Thompson v. Robertson, 4 Johns. R. 27.

And where it appeared from a receipt of the payee of a bill, that when paid it was to be in full for the balance of an account due from the drawer to the payee, the bill being dishonored, it was held in Pennsylvania that the payee was not entitled to recover the twenty per cent. damages. Chapman v. Steinmitz, 1 Dallas, 261.

So where a bill had been remitted by the endorsers in payment of an antecedent debt, and being dishonored, the endorsees to whom it had been remitted, received from the drawer his note for the amount of the bill and twenty per cent. damages, and gave him up the bill, it was held that the endorsers might recover from their endorsees the amount of the twenty per cent. damages included in the drawer's note, notwithstanding his failure before it became due. Keppele v. Carr, 4 Dallas, 155.

Where a bill was drawn, as additional security for a bottomry bond, previously given by the drawer, the captain of a vessel of which the drawee was owner, it was held that the drawer was not liable to damages on the dishonor of the bill. Hazelhurst v. Kean, 4 Yeates, 19.

It is often made a question, by the law of what place the damages on a protested bill are to be regulated. See on this subject, Hazelhurst v. Kean, ante p. 30; Slacum v. Pomery, ante, p. 32; Shermerhorn v. Pelham, ante, p. 32; Bain v. Ackworth, ante, p. 30; Winthrop v. Pepoon, ante, p. 30; M'Candlish v. Cruger, ante, p. 30; Grimshaw v. Bender, ante, p. 31.

The acceptor of a bill is in no case liable to pay damages. Bain v. Ackworth, 1 S. Car. R. 107.

But where principals directed their agent to draw on them for the

[So debt may be maintained by the drawer of a bill payable to himself, against the acceptor, where it is expressed to be for value received. (a)]

amount of purchases made by him on their account, and the agent in consequence drew upon his principals, who refused to accept the bills, and the drawer was in consequence obliged to pay the amount of the bills and damages to the holders, it was held, that the drawer might recover of the drawees the amount of the bills and damages thus paid, on a count for money paid to their use, and that the bills might be given in evidence on that count. Riggs v. Lindsay, 7 Cranch, 500.]

(46) In Anon. Hardr. 485. It was held that the payee of a bill could not maintain debt agaiest the acceptor, because there was no privity between them, and because the acceptance was a collateral undertaking only. [See also Smith v. Segur, 2 Hen. & Munf. 394; and Wilson v. Crowdhill, 2 Munf. 302.] In Welch v. Craig, Str. 680. 8 Mod. 373. it was held that debt will not lie npon a note; but it does not appear by or against what particular party that action was brought. In 1 Mod. Ent. 812. pl. 13., it is said that debt will lie against the maker of a note, not against the endorser. And in Morgan's Precedents, 458, is an entry of a declaration in debt by the administratrix of the payee of a note against the maker; and in Rumball v. Ball, 10 Mod. 38, an action of debt was brought upon a note.

(47) In Brown v. London, 1 Freeman, 14. 1 Mod. 285. 1 Vent. 152. It was held, that an indebitatus assumpsit would not lie upon the acceptance of a bill, Twisden J. dubitante. And there is a dictum to the like effect in Comb. 204. But in another report of Brown v. London, Lev. 298, the court is stated to have resolved in favor of the defendant, because the custom was not set out in the count. In Skinn. 346, it is said it will only lie against the drawer upon a bill importing to have been given for value received. In Salk. 125. 12 Mod. 37, it is laid down generally, that an indebitatus assumpsit will not lie upon a bill; and in 12 Mod. 345, it is held that the payee of a bill importing to have been given for valne received, may maintain an indebitatus assumpsit against the drawer. And it may be observed, that the demand of an endorsee upon a bill or note against endorser, drawer, maker, or acceptor, is continually allowed as an item of set-off under the statutes of set-off,

(48] Murray v. East India Company, 5 Barnew. and Ald. 204. Assumpsit against the East India Company as acceptors of certain bills of Exchange: it was urged, that assumpsit could not lie against a corporation; but the court, without intimating how that would be in general, held, that as the East India Company was, by 53 G. 3. c. 155. § 57., and other acts, expressly authorized to accept bills, those statutes were to be considered as virtually making them liable to the ordinary remedies upon bills, and consequently to the action of assumpsit.

(49) Bishop v. Young, 2 Bos. and Pull. 78. This was an action of debt by the payee, against the maker of a promissory note, expressed to be for value received. The first count of the declaration was upon the note; and upon general demurrer to this count, the court, after time taken to consider, held, that in this particular case, the action of debt was maintainable. But Lord Eldon, who delivered the opinion of the court, said, "We do not say how the case would stand if the action were brought by any other person than he to whom the note was originally given, or against any other person than him by whom it was signed and made, or if the note itself did not express a consideration upon the face of it." Judgment for the plaintiff.