so.

When the fact appears that there has been laches on the part of the holder, a subsequent promise by the endorser to pay the bill will not render him liable, unless it appear to have been made with full knowledge of the fact that he was discharged by those laches. Bronson, J. in Tebbetts v. Dowd, 23 Wend. 411. A promise made in ignorance of that fact, we are told, is without consideration and not binding. Bank of U. S. v. Leathers, 10 B. Monroe 65, 6. No doubt this is But how does the mere circumstance of the promise by the endorser, being with knowledge that he was not liable, shew a consideration? If the endorser, by his endorsement, promised to answer for the debt of another, it was only on a particular condition, and he could only be charged on that promise by shewing performance of that condition. When it is admitted that the condition has not been performed, and that the endorser is, therefore, discharged from the promise made by his endorsement, how can he be charged upon a new promise to answer for the debt of another, without shewing that such promise or some memorandum or note thereof is in writing and duly signed? Stat. 29 Car. 2, c. 3, § 4; Code of Va. p. 579, c. 143, § 1. Yet, among the American cases already cited, there are many holding that the promise amounts to a waiver of the objection that the proper steps had not been taken to charge the endorser. How far shall they be followed? Bronson, J. has adverted to the subject in these terms: "Before the bill comes to maturity, the endorser," he observes, "may dispense with the necessity of making a de-` mand and giving notice; but I do not perceive how he can do so afterwards. Before the proper time arrives, the necessity for doing an act may be waived; but I do not see how that can be done after the time for performance has gone by. A man may sometimes waive the assertion of a forfeiture; but cases belonging to that class depend on peculiar principles, and are not, I think, applicable to the case of a drawer or endorser, who has not been duly charged. As an original question, I should be of opinion, that whenever it plainly appears that . there has been laches on the part of the holder, the drawer or endorser is discharged, and a subsequent promise, though made with full knowledge, cannot aid the case. But the rule has been settled otherwise, and whenever it becomes necessary to apply it, I shall feel myself bound by the weight of authority." Tebbetts v. Dowd, 23 Wend. 412.

CHAPTER XXIII.

WHAT DAMAGES ARE TO BE PAID WHEN BILL IS PROTESTED.

1. Rule of the law-merchant.

Under the law-merchant, the drawer of a bill in this country, payable in a foreign country, is liable, should such bill be protested, not only for the costs of protest and other incidental charges, but also for re-exchange on the bill. McLean, J. in Bank of U. S. 7. U. S. 2 How. 737. The doctrine of re-exchange is founded upon equitable principles. A bill is drawn in this country, payable at Paris in France. The payee gives a premium for it under the expectation of receiving the amount at the time and place where the bill is made payable. It is protested for non-payment. Now, the payee and holder is entitled to the amount of the bill in Paris. The same sum paid in this country, including costs of protest and other charges, is not an indemnity. The holder can only be remunerated by paying to him, at Paris, the principal, with costs and charges; or by paying to him, in this country, those sums, together with the difference in value between the whole sum at Paris and the same amount in this country. And this difference in value is ascertained by the premium on a bill for that whole sum drawn in Paris, payable in this country and sold at Paris. S. C. 738.

2. Regulation in United States by statutes. Provision made by statutes of Maryland and Pennsylvania.

What state or country is to be looked to for the law, as to the amount of damages in a particular case, has been mentioned ante, 1 Rob. Pract. 86, 7. Here it only remains to add some information as to what has been fixed in certain states of the Union.

Almost all the states have fixed by legislation a certain amount of damages on protested foreign bills, in lieu of reexchange. 2 How. 737; 7 B. Monroe 552; 4 Johns. 149.

The first section of the Maryland act of 1795, provides that upon bills drawn in Maryland, on a person in a foreign country, and protested, the holder of the bill or the persons entitled to the same shall have a right to so much current money as will purchase a good bill, of the same time of payment and on the same place, at the current exchange of such bills, and also

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

If the bill be paya

protest, and damages at the rate of five per cent. ble 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.

CHAPTER XXIV.

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