[245]

We have thus far considered the subject of damages and re-exchange on bills protested for non-payment. The same general principles govern the case of bills protested for nonacceptance. "On failure of the performance of the engagement that the drawer will accept," says Mr. Chitty, (n) "the drawer of a bill will immediately, and before the time specified in the bill for payment, be liable to an action, not only for the principal sum, but also in certain cases for interest, re-exchange, and costs, as a consequence of the bill not being honored." This was decided as early as the year 1765, (o) and again by Lord Mansfield, (p) on the ground that what the drawer had undertaken has not been performed, the drawer not having given the credit which was the ground of the contract; and the same point was held in an action by the endorsee against the endorser, (2) each endorser being considered as a new drawer. It had been decided in bankruptcy to the same effect at an earlier day; (r) and the rule in this country is the same. (s)

[246]

In New York, the damages in cases of protest for nonacceptance, are by statute fixed at the same rate as for nonpayment. This was the rule before the statute. (t)

When a bill is drawn in Alabama, payable at a place without its limits, neither interest nor damages can be recovered of the acceptor upon its dishonor without proving the law of the place

(p) Milford v. Mayor, Douglass, 54. (7) Ballingalls v. Gloster, 3 East, 481. (r) Macarty v. Barrow, 2 Strange, 949, of which a fuller report is given in Chilton v. Whiffin, 3 Wilson, 17.

(8) Mason and Smedes v. Franklin et al., 3 J. R., 202; and again in Weldon v. Buck et al., 4 J. R., 144.

In France the rule appears different. On the protest for non-acceptance, the obligation of the parties indebted, says Pardessus, Cours de Droit Commercial, Part II., Tit. IV., chap. iv., sec. 7, vol. 2, 424, is either to pay, to deposit the amount, or to give security. Lorsque il (la personne poursuivie) donne une caution, jugée suffisante, ou qu'il consigne, le por

teur n'a plus jusqu'à l'echeance de droits à exercer ni contre lui ni contre les autres signataires de la lettre pour exiger qu'ils donnent un semblable cautionnement, ou qu'ils remboursent, parceque l'obligation des co-debiteurs étant alternative de payer, ou de donner caution, l'un d'eux etait libre de choisir le mode qui leur convenoit pour acquitter la dette de tous."

In

And there are traces of some similar or analogous custom in England. Bright v. Purrier, the defendant offered to prove a commercial usage not to pay till protest for payment; and in Buller's Nisi Prius, page 266, it is said, "When the bill is returned protested, the party that draws the bill is obliged to answer the money and damages, or to give security to answer the same beyond sea, within double the time the first bill ran for."

(t) See Revisor's notes to the 22d Section, 1 R. S., 771. The point was expressly decided in Welden et al., v. Buck et al., 4 J. R., 144; and the same is the rule in England.

of payment as to such damages and interest. But it is no objection that interest and damages for non-payment are included in the same entry of judgment, without specifying the amount of each separately. (u)

Some points still remain to be noticed, which have a common application to bills and notes. We shall have occasion hereafter to consider the principles which govern the allowance of interest, in a separate place; it is sufficient to say here, that the general rule is, that though the law does not always imply a contract on the part of the debtor to pay interest on the sum he owes, (v) still, in the case of a bill or note, interest is usually recoverable from the time it becomes due; and a bill or note, payable at a certain day, carries interest from that day, unless the non-payment at the appointed time was occasioned by the negligence of the holder. (2)

We shall have occasion hereafter to see that the English [247] courts are less disposed to allow interest than those of this country; and in accordance with this disposition, it appears that there, when interest is not made payable by the bill itself, the jury are not bound to give it; but it rests in their discretion to award it, (1) if they are of opinion that the delay of payment has not been occasioned by the fault of the holder. And so in a late case they refused it where a promissory note had been overdue thirty years; and the court, on motion, would not increase the verdict by giving it. (a)

A party who guaranties the due payment of a bill of exchange

(u) Dickinson v. Branch Bank of Mobile, 12 Ala., 54.

(v) Chitty on Bills, chap. vi., 662. De Haviland v. Bowerbank, 2 Camp., 50; De Bernales v. Fuller, 2 ib., 426; Walker v. Constable, 1 Bos. & Pull., 307.

(w) Robinson v. Bland, 2 Burr. 1077; Lang v. Stone, 2 Man. & Ry., 16; Bann v. Dalzell, Mood. & M., 228; Greenleaf v. Kellogg, 2 Mass. R., 568; Cooley v. Rose, 3 Mass. R., 221; Hastings v. Wiswall, 8 Mass., 455; Foden v. Sharp, 4 J. R., 183;

Slacum v. Pomery, 6 Cranch, 221; Cannon v. Beggs, 1 M'Cord, 371.

(x) Du Belloix v. Lord Waterpark, 1 Dow. & Ry., 16; Bann v. Dalzell, Mood. & M., 228; Arnott v. Renfern, 3 Bing., 353; Calton v. Bragg, 15 East, 223; 3 Bing., 559; Higgins v. Sargent, 2 Barn. & Cres, 341; Page v. Newman, 9 Barn. & Cres., 378; 6 Bing., 380. See, also, Chitty on Bills, ch. vi., 662, et seq., and cases there cited, and Starkie on Evidence, Tit. Bills of Exchange, Damages.

(1) If the jury award interest on a bill dishonored for non-acceptance, the rate of interest proper to be allowed is that which prevails at the place where the bill was drawn. Gibbs v. Fremont, 20 Eng. L. & E., 555; S. C., 9 Exch., 25; 17 Jur. 820.

by the acceptor, is liable for interest upon it if it be not paid when due. (y) (1)

Some other decisions have been made upon the subject of the amount of recovery, which it may be proper to notice. An endorser who is sued on his endorsement, and subjected to costs, cannot recover those costs against the maker. He can only have the amount of the note and interest; (2) "because," says the Supreme Court of New York, "if the endorser of a note be duly fixed, he ought to pay it without being sued; and if he finds it more convenient to delay taking up the note until he is prosecuted to judgment and execution, the drawer ought not to pay for that convenience. * The mere fact of drawing the note does not imply a promise to save the payee harmless from all costs and charges that he may be subjected to as endorser. There must be a special promise to save harmless before the payee can call upon the drawer for costs accrued by the default of the payee (endorser) himself." In a suit against the endorser, the fees of protest are a proper charge. (a) And an endorser who has paid the note, can, it seems, recover the costs of protest against the maker. (b)

On the same principle it has been held in England, [248] where an accommodation acceptor was sued by a bona-fide holder, that as he ought to have paid it when demanded, he could not recover the costs against the party who had improperly endorsed it to the holder. (c) So also, the acceptor of a bill with funds who has failed to pay, is not liable for the costs of a suit against the drawer. (d) And the endorser of a bill is not liable for the costs of a suit by the holder against the acceptor, nor for commissions paid on the collection of the money. (e) In like manner the endorser of a regular bill who has been sued by an endorsee, is not entitled to recover from the acceptor his costs

(y) Ackerman v. Ehrensperger, 16 M. & Wels., 99.

(z) Sampson v. Griffin, 9 J. R., 131. See, also, Steele v. Sawyer, 7 M'Cord, 459, and Richardson v. Parnell, 1 M'Cord, 192, to the same point as Sampson v. Griffin.

(a) Merritt v. Benton, 10 Wend., 116.

(b) Morgan v. Reintzel, 7 Cranch, 273.

(c) Bleaden v. Charles, 7 Bing., 618. See this case commented on in Asprey v. Levy, 16 M. & W., 851; Roach v. Thompson, 1 M. & M., 487.

(d) Barnwell v. Mitchell, 3 Conn., 101. (e) Bangor Bank v. Hook, 5 Greenleaf,

174.

(1) But he is not liable for costs of a suit against the maker. The Woodstock Bank v. Downer, 27 Vt., 540.

in such action. (f) But a party who makes or endorses or accepts an accommodation bill or note is regarded as a surety, and can charge the party for whose benefit his signature is given, with the costs of a suit for the collection of such note or bill if he be compelled to pay it. So the accommodation acceptor of a bill who is sued, can recover his costs of the drawer. (g) And so it has been held between the accommodation endorser of a note and the maker. (h)

Dawson v. Morgan, 9 B. & C., 618. (g) Jones v. Brooke, 4 Taunt., 764. (h) Hubbly v. Brown, 16 J. R., 70;

Baker v. Martin Adm'x, 3 Barb. S. C. R., 634; and see, post, Chap. XL, Of Principal and Surety.

CHAPTER IX.

THE MEASURE OF DAMAGES IN ACTIONS UPON POLICIES OF INSURANCE.

Marine Insurance-partial loss-total loss-general average-the principle of arbitrary remuneration-Fire Insurance-Life Insurance.

THE Contract of insurance assumes various forms known under the general heads of Marine Insurance, Fire Insurance, and Life Insurance. (1) The subject, forms a necessary part of a treatise on the law of damages; but, at the same time, as it has, like the matter of the last chapter, been fully treated of in the separate works devoted to this particular branch of jurisprudence, it would be improper here to do more than give a general outline of the subject.

Marine insurance.-Marine insurance is defined to be a "contract of indemnity in which the insurer, in consideration of the payment of a certain premium, agrees to make good to the assured all losses, not exceeding a certain amount, that may happen to the subject insured, from the risks enumerated or implied in the policy, during a certain voyage or period of time." (2) (2)

(i) Duer on Marine Insurance, vol. i., 58; Hamilton v. Mendes, 2 Burr. 1210.

(1) The right to recover upon a contract of insurance is commensurate with the loss actually sustained. Any evidence conducing to show the loss less than that claimed, is admissible. The doctrine relative to mitigation of damages has no application to such a case. Franklin Fire Insurance Comp. v. Hamill, 6 Gill (Md.), 87. (2) On a policy of marine insurance against the usual perils of the seas, the assured may recover for damages to his own vessel, suffered through a collision with another vessel, although such collision happened remotely through the neglect of the officers or crew. But he cannot recover a sum awarded to be paid by his vessel to