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15 per cent. damages on the value of the principal and costs. of protest, with interest on the value of the principal from the time of protest until the principal and damages are paid and satisfied. Under this statute the claim to the 15 per cent. damages was sustained in the Bank of U. S. v. U. S., 2 How. 735.
The Pennsylvania statute allows, on the protest of a foreign bill, five per cent. as commutation for interest, damages and re-exchange; the plaintiff there recovers against the drawer and endorsers the amount of the bill and five per cent. additional, with interest on the whole from the date of the protest to the date of the judgment. Lloyd v. McGair, 3 Barr 482.
3. Amount of damages fixed by statutes of New York, Massachusetts and Virginia.
The revisors of the Code of Virginia proposed the following as the 9th section of chapter 144.
When a bill of exchange or a draft in the nature of such a bill, drawn or endorsed within this state is protested for non-acceptance or non-payment, there shall be paid by the party liable for the principal of such bill, in addition to what else he is liable for, damages upon the principal, at the rate of three per centum if the bill be payable out of Virginia and within the United States, and at the rate of ten per centum if the bill be payable without the United States.
To this section they subjoined the following note:
In New York the damages are three per cent. if the place at which the bill is drawn be in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Ohio, Delaware, Maryland, Virginia, or the District of Columbia; five per cent. if the place be in North Carolina, South Carolina, Georgia, Kentucky, or Tennessee; and ten per cent. if the place be in any other state or territory of the United States, or on or adjacent to this continent and north of the equator, or in any British or other foreign possessions in the West Indies, or elsewhere in the Western Atlantic Ocean, or be in Europe. Rev. Stat. of N. Y. vol. 1, p. 770, § 18. In Massachusetts the damages are three per cent. if the bill be payable in Maine, New Hampshire, Vermont, Rhode Island, Connecticut and New York; five per cent. if the bill be payable in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia; six per cent. if payable in North Carolina, South Carolina, or Georgia; and nine per cent. if payable elsewhere in the United States. If the bill be payable without the United States, (excepting places in Africa beyond the Cape of Good Hope, and places in Asia and the islands thereof,) the party liable is to pay the principal at the current rate of exchange at the time of demand, with interest from the date of the
protest, and damages at the rate of five per cent. If the bill be payable at a place in Africa, beyond the Cape of Good Hope, or any place in Asia or the islands thereof, the party liable is, on demand, to pay the principal at the par value thereof, with twenty per cent. thereon, in full of all damages, interest and charges. In Virginia the drawer or endorser of a foreign bill of exchange is subject to ten per cent. damages. 1 R. C. p. 485, ch. 126, §1; 1828-9, p. 27, ch. 24, § 1; and the drawer or endorser of a bill or draft drawn by a person residing in this state on a person in the United States, is subject to one per cent. damages. 1 R. C. p. 483, ch. 125, §1. In the section as above proposed, we have not entered into all the specifications found in the statutes of New York and Massachusetts. The section has only two sets of damages, as is the case now. But as three per cent. is the lowest rate both in New York and Massachusetts, we have thought it best to make that the minimum in Virginia. With so much commercial intercourse as exists between New York and Virginia, there is a convenience in having the rate of damages the same in the two states. A bill payable within Virginia is left without damages; being on the same footing in this respect as a negotiable note.
The section was proposed as adopted, except only that the words in italics were struck out; they being deemed no doubt superfluous. The section is at p. 582 of the Code.
WHETHER LOSS OF A BILL OR NOTE WILL DEFEAT AN ACTION ON IT.
1. In case of foreign bill, drawn in sets, sufficient to produce that which was protested.
A foreign bill is usually drawn in sets, to enable the same to be forwarded for acceptance by different conveyances, and thus guard against any loss, by accident or otherwise, which might occur if there were but a single bill. 13 Peters 207. In case of protest, the drawer or endorser sought to be charged, has a right to require the plaintiff to produce at the trial the particular bill, or number of the set, that was protested. 3 Kent's Com. 109; Wells v. Whitehead, 15 Wend. 527. But notwithstanding what is said by Mr. Starkie, in his work on evidence, part IV., p. 228, 1st edi., the supreme court of the United States has decided that where the second of a bill was protested, the holder could recover upon it, with the protest
attached, without producing the first of the same set, or accounting for its non-production. Downes &c. v. Church, 13 Peters 207.
2. Established in England that action cannot be maintained on negotiable instrument, without its production.
In other cases, the established rule in England is, that the acceptor paying a bill has a right to the possession of the instrument for his own security, and as his voucher and discharge pro tanto in his account with the drawer; and to one who should refuse or be unable to deliver up the bill, the acceptor is not bound to pay the sum therein specified. Ex parte Greenway, 6 Ves. jr. 812; Pierson v. Hutchinson, 2 Camp. 211; Poole v. Smith, 1 Holt 144; 3 Eng. Com. Law Rep. 55. Such being the right of an acceptor ready to pay at the maturity of the bill, his right remains the same if, though not ready at that time he is ready afterwards; and his right is not varied when the payment is to be made under a compulsory process of law. So far as Brown &c. v. Messiter, 3 M. & S. 281, is inconsistent with this position, it must be regarded as overruled by Hansard v. Robinson, 7 Barn. & Cress. 90. Lord Ellenborough, in an action against an endorser of a bill, let him have the benefit of a like rule. Powell v. Roach c. 6 Esp. 66.
After the bill is lost, the acceptor may have expressly promised to pay it, still payment can be enforced against him at law neither in an action on the acceptance, nor on the money counts there being no new consideration to sustain the new promise, it is considered nudum pactum. Davis v. Dodd, 4 Taunt. 602. Nor when the bill has been given for goods, can an action be sustained for the price of such goods. Champion &c. v. Terry, 3 Brod. & Bing. 295; 7 Eng. Com. Law Rep. 443.
From the operation of the general rule of law, it has been sought to except cases in which the plaintiff's inability to deliver up the bill resulted from his having lost it while it remained payable to his own order. Long &c. v. Bailie, 2 Camp. 214, note; Rolt v. Watson, 4 Bingh. 273, 13 Eng. Com. Law Rep. 430; Glover v. Thompson, Ry. & M. 403, 21 Eng. Com. Law Rep. 472. But all these cases were brought before the court of king's bench, in Hansard v. Robinson; and that court, after taking time to consider, overruled such of them as supported the exception, and decided that according to the custom of merchants, the acceptor of a negotiable bill is not bound to pay unless the party demanding payment produces
and offers to deliver up the instrument itself. 7 Barn. & Cress. 90, 14 Eng. Com. Law Rep. 21. This decision is stated to be agreeable to the mercantile law of other countries. Ordonnance de Commerce of Louis XIV., tit. 5, art. 1; Modern Code de Commerce of France, liv. 1, tit. 9, art. 151, 152. It has been since followed. Ramuz v. Crowe, 1 W. H. & G. 174.
By these cases it is established in England, that in an action. on a negotiable instrument, the plaintiff must be holder at the time he sues upon it; and that if he has lost it, his action cannot be maintained. The courts point out the inconvenience which would arise if the plaintiff could recover, and throw on the defendant the consequences of the plaintiff's negligence, and shew that the proper remedy of the loser of the bill is in equity, where he might call on the party liable on the bill, on due indemnity, to give him another bill, or pay him the amount. Clay v. Crowe, 8 W. H. & G. 298; Crowe v. Clay, 9 Id. 607; 18 Eng. Law & Eq. 514, 25 Id. 451.
3. The English rule precludes an action not only on the lost bill, but also for the demand on account of which that bill was given.
Clay v. Crowe was not an action on the lost bill, but on the demand on account of which the bill was given. A bill given "for and on account" of money due on simple contract, operates as a conditional payment, which may be defeated at the option of the creditor, if the bill is unpaid at maturity in his hands; in which case he may rescind the transaction of payment, and sue on the original demand. Griffiths v. Owen, 13 M. & W. 58, 64; James v. Williams, Id. 828. If the bill be lost, the condition on which the payment may be defeated does not arise, Belshaw v. Bush, 11 Com. Bench (2 J. Scott) 191, 73 Eng. Com. Law Rep. 191; and the defendant, if compelled to pay the original debt, would be subject to inconvenience of the like kind as if compelled to pay the bill. Accordingly it is held, that a debt paid by a lost bill cannot be recovered. Mercer v. Cheese &c. 4 Man. & Grang. 804, 43 Eng. Com. Law Rep. 432; Price v. Price, 16 M. & W. 232. The loss of a negotiable bill, given on account of a debt, is an answer to an action for the debt, as well as to one on the bill. Crowe v. Clay.
4. Distinction in England between instrument which was, and instrument which was not, originally negotiable.
There is a distinction in England between an instrument
which in its original state is negotiable by being payable to bearer or order, and an instrument which in its original state is not negotiable, as if it be payable to the payee without the words or order." In the latter case, the loss of the instrument appears not to be an answer to the payee's action upon it. Wain v. Bailey, 10 Adol. & El. 616, 37 Eng. Com. Law Rep. 193; Parke, B. in Clay v. Crowe, 8 W. H. & G. 298; Charnley v. Grundy, 14 Com. Bench (5 J. Scott) 608; 78 Eng. Com. Law Rep. 608, 25 Eng. Law & Eq. 318.
5. Rule established by decisions in New York, Pennsylvania and Massachusetts.
This also has been the course of decision in New York. In that state it was decided that if a promissory note payable to bearer be lost, the person who was the holder can maintain an action on it if the note be not negotiable, Pintard v. Tuckington, 10 Johns. 104, 3 Cow. 312, 12 Wend. 174; but not if the note be negotiable, Rowley v. Bell, 3 Cow. 312; McNair v. Gilbert, 3 Wend. 346; Smith &c. v. Rockwell, 2 Hill 482.
The rule in Pennsylvania is like that in Massachusetts. Meeker &c. v. Jackson, 3 Yeates 442; Freeman &c. v. Boynton, 7 Mass. 486; Peabody v. Denton &c 2 Gal. 351; Donelson v. Taylor, 8 Pick. 390. Considering the rule in England and New York to rest on the ground that it is better for parties to go into chancery where all the circumstances of the loss of the instrument can be better investigated, and suitable indemnity for the defendant better estimated and adjusted, it is considered in Massachusetts not proper to apply the rule where there is no such remedy in chancery. The objection. that a court of law has no jurisdiction to order, or to judge of the sufficiency of, an indemnity, is regarded in that state as rather ideal than solid. In an action on notes payable to order, which had been endorsed in blank by the payee, and stolen from the holders, they recovered on filing a sufficient bond of indemnity with sureties. Trales &c. v. Russell &c. 16 Pick. 315.
6. Provision made in New York by statute.
The Revised Statutes of New York (vol. 2, § 75, 76, p. 406 of 1st and $ 95, 96, p. 327, 8, of 2d edi.) provide as follows:
In any suit founded upon any negotiable promissory note or bill of exchange, or in which such note, if produced, might be allowed as a