Re-exchange the holder, had either paid, or was liable to pay, re-exchange; and saving the question of law, whether any exchange or re-exchange could be allowed between this and a country in possession of the enemy.

Provision, &c.

With respect to provision, it is said by Pothier, (a) (1) that it is usual for the holder of a bill to allow his agent, to whom he indorses it for the purpose of receiving payment for him, a certain sum of money called provision, at the rate of so much per cent. to recompense him, not only for his trouble, but also, if such agent be a banker, for the risk he runs of losing the money, which he is obliged to deposit with his correspondents in different places for the purpose of repaying his principal the amount of the money received on the bills. And it is said, that one half

(a) Pl. 86, 87, 88.

(1) In Massachusetts, in actions on foreign bills against the drawer or indorser, the holder is entitled to recover the money for which the bill was drawn, the charges of protest with interest at six per cent. on these sums from the time when the bill should have been paid, and the further sum of ten per cent. of the money for which the bill was drawn, with interest upon it from the time when payment of the dishonoured bill was demanded of the drawer. But nothing is allowed for re-exchange, the ten per cent. being by immemorial usage, a substitute for it. Grimshaw v. Bender, 6 Mass. Rep. 157. Barclay v. Minchin, 6 Mass. Rep. 162.

In Pennsylvania, 20 per cent. is allowed in lieu of damages and charges. Chapman v. Steinmetz, 1 Dall. Rep. 261. Keppele v. Carr, 4 Dall. Rep. 155. Hen dricks v. Franklin, 4 John. Rep. 119. Statute of Pennsylvania, 1700. Purdon's Digest, 66. The same rule prevails in New York. Kenworthy v. Hopkins, 1 John. Cas. 107. Hendricks v. Franklin. Weldon v. Buck, 4 John. Rep. 144. Thompson v. Robertson, 4 John, Rep. 27. And the holder can recover no more than the contents of the foreign bill, and 20 per cent, damages with interest and charges of protest, at the par of exchange; and nothing is to be allowed for the difference between the price of the bill at the time it was returned, and at the time it was drawn. Hendricks v. Franklin. But in the Court of Errors of New York, this decision has been overruled by a bare majority, and it has been held that the holder is entitled to recover the contents of the bill at the rate of exchange, or price of bills on the place in which it was drawn, at the time of the return of the dishonoured bill, and notice thereof to the drawer, together with 20 per cent. damages and interest. Graves v. Dash, 12 John. Rep. 17. And the 20 per cent. damages are payable upon a protest for non-acceptance, as well as for non-payment. Weldon v. Buck. But not where the bill is remitted to pay an antecedent debt. Kenworthy v. Hopkins, 1 John. Cas. 107. Thompson v. Robertson, S. P. Chapman v. Stein. metz, 1 Dall. Rep. 261.

In Rhode Island, the damages on foreign bills are settled at 10 per cent. Brown v. Van Braam, 3 Dall. Rep. 244. 346. Statutes of Rhode Island, p. 444. edit. 1798. In South Carolina, the damages on foreign bills are 15 per cent. with the difference of exchange. Winthrop v. Pepoon, 1 Bay's Rep. 468. In Virginia, the damages on foreign bills are 15 per cent. Slacum v, Pomeroy, 6 Cranch, 221.

per cent. is not an unreasonable allowance, whether the agent be Provision, a banker or not.

The charges above enumerated, are the only legal ones, nor can any extraordinary loss not necessarily incidental, which the holder or other parties may be put to by travelling, or by some advantageous engagement being delayed or defeated by the want of punctual payment, be in any case legally demanded. (a)

(a) Lovelass, 235. cites Lex Merc. 461.-Poth. pl. 65.-Auriol v. Thomas, 2 T. R. 52.—Woolsley v. De Crawford, 2 Campb. 445.

&c.

[*545]

*CHAPTER VI.

Sect. 1. Of the action of

or note.

OF THE ACTION OF DEBT ON A BILL, &C.

THE remedy by action of debt, to enforce payment of a bill or note, and the proof of it under a commission of bankruptcy, remain to be considered in this chapter.

The action of debt on simple contract was formerly much in debt on a bill use, but was afterwards disused on account of the wager of law; (a) it has lately revived in practice, and is now become a common action for the recovery of money due on simple contract. The principal advantages arising from adopting this remedy, are, first, that the plaintiff need not, after judgment by default, execute a writ of inquiry, or refer to the master to compute principal and interest; and, secondly, that the defendant must, in debt, on a bill of exchange, if there be no other count in the declaration on another simple contract, put in special bail on bringing a writ of error; (b) but bail in error is not necessary, on a judgment by default in debt, on a promissory note, the validity of which instrument was not established until after the Statute James 1. c. 8. (c) And if a declaration, in debt on a bill of exchange, contain any one count on a contract for which debt would not lie at the time of passing the Statute 3. J. 1. c. 8. bail in error is not necessary. (d) Debt on simple contract, also, is not sustainable against executors or administrators, (e) except in the Court of Exchequer, *where wager of law is not allowed, (f) or by special cus tom in the city of Londou. (g)

[*546]

This action may be supported by the payee of a promissory note

(a) Gilb. on the Action of debt, 363, 4.

(b) Ablet v. Ellis, 1 Bos. & Pul. 249.-Trier v. Bridgman, 2 East.

359.

(c) Trier v. Bridgman, 2 East. 359.

(d) Webb v. Geddes, 1 Taunt. 540.--Trier v. Bridgman, 2 East. 359. (e) Barry v. Robinson, 1 New Rep. 293. -Norwood v. Read, Plowd. 182. Palmer v. Lawson, 1 Lev. 200.-Pinchon's case, 9 Co. 86, 7. 3 Bla. Com. 347.

66

OF THE ACTION OF DEBT, &e.

the action of

against the maker, when expressed to be for value received, (a) Sect. 1. Of and by the payee of a foreign or inland bill of exchange expressed debt on a bill to be for value received against the drawer, (b) and by the first or note. indorsee against the first indorser, who was also the drawer of a bill payable to his own order. (c) In Bishop v. Young, (d) (the most recent decision on the subject,) the court said, "We do not say how the case would stand, if the action were brought by 16 any other person than him 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 consi"deration upon the face of it." Therefore it is still uncertain, whether in respect of the want of privity between the parties, an indorsee can support an action of debt against the drawer of a bill or maker of a note.

Debt is not sustainable on a collateral engagement, as on a promise to pay the debt of another; (e) and, it has been holden, that debt cannot be supported on a bill of exchange by the payee against the acceptor; (f) therefore bail in error is not necessary upon a judgment in debt against the acceptor of a bill; (g) first, because no privity of contract exists between those parties; (h) and, secondly, because in an action of debt on simple contract, the consideration ought to be shewn, which is not stated in a declaration on a bill, and an acceptance is only in the nature of a collateral promise or engagement to pay, which creates no duty. (i)

n. 69.

(a) Bishop v. Young, 2 Bos, & Pul. 78.--Bayl. 162.--Selwyn 4th ed. 363. (6) Bishop v. Young, 2 Bos. & Pul. 82, 3, 4.-Hodges v. Steward, Skin. (c)

346.

V., Exchequer, A. D. 1817. (d) Bishop v. Young, 2 Bos. & Pul. 78. 84.

(e) Anonymous, Hardr. 486.-Com. Dig. tit. Debt, B.-Purslow v. Baily, 2 Ld. Raym. 1040.-Hodsden v. Harridge, 2 Saund. 62 b.

(f) Bishop v. Young, 2 Bos. & Pul. 80. 82, 83.-Anonymous, Hardr. 485. Simmonds v. Parminter, 1 Wils. 185.-Browne v. London, 1 Mod. 285.Gilb. Debt, 364.-Com. Dig. tit. Debt, B.-Anonymous, 12 Mod. 345.-Bayi. 94.-1 Taunt. 540.-2 Campb. 187. n. a.

(g) Webb v. Geddes, 1 Taunt. 540.

(h) Rol. Ab. 597. pl. 4. 10.--Core's case, 1 Dyer, 21. a.

(i) Bishop v. Young, 2 Bos. and Pul. 83,-Hodges v. Steward, 1 Salk. 125. pl. 5.--Vin. Ab. tit. Bills, N. But perhaps, the action of debt might now be sustainable by the payee, &c. against an acceptor, first, because with respect to privity of contract it has been holden, that if one deliver money to another to pay only to a third person, the cestuique use may sustain an action of debt against the bailee to recover it, Harris v. De Bervoir, Cro. Jac. 687.: 1 Rol. Ab. 441. 597. 1. 55.--Whorewood v. Shaw, Yelv. 23.; and the ac ceptance of a bill amounts to a promise in law, to pay the amount of it to the person in whose favour it is drawn; Hussey v. Jacob, 1 Ld. Raym, 88;

Rr

[*547]

the act of debt on a bill or note.

Sect. 1. Of In Rumball v. Ball, (a) the plaintiff recovered in an action of debt on a promissory note, and in another reporter it is said, that debt will lie against the maker of a note, but not against an indorser. (b) In Welsh v. Craig, (c) it was holden that debt would not lie upon a note, but, as it has been observed, it does not appear by or against, what particular party that action was brought, (d) though from the argument of counsel it may be inferred, that the action was against an indorser. (e) Debt is not sustainable on a promissory note payable by instalments, unless the whole be due. (f) (1)

and, secondly, because an acceptance is not a collateral engagement, nor is it similar to a promise by A. to pay the debt of B., if B. do not, an argument which was adduced in support of the doctrine, but the acceptor is primarily liable; Bishop v. Young, 2 Bos. and Pul. 83.; and, lastly, because whenever the common law or custom raises a duty, debt lies for it, Anonymous, Hardr. 486. Com. Dig. Debt, A. Hussey v. Jacob, Ld. Raym. 88. on which ground Twisden, J. held, that indebitatus assumpsit would lie on a bill of exchange at the suit of the payee against the acceptor. Brown v. London, 1 Vent. 152. Anonymous, Holt. 296.-Anonymous, 12 Mod. 345.-Hodges v. Steward, Skin. 346. acc.-Brown v. London, 1 Freem. 14.-1 Mod. 285.-1 Vent. 152. S. C.-Hodges v. Steward, Comb. 204. contra.

(a) Rumball v. Ball, 10 Mod. 28.; observed on in Bishop v. Young, 2 Bos. & Pul. 84.

(6) 1 Mod. Ent. 312. pl. 13.

(c) Welsh v. Craig, 2 Stra. 680.-8 Mod. 173. S. C. observed on in Bishop v. Young, 2 Bos. & Pul. 80, 1, 2.

Bishop v. Young, 2 Bos. & Pul. 81.—Bayl. 94. n. c.

(e) Bishop v. Young, 2 Bos. & Pul. 80.

Rudder v. Price, 1 Hen. Bla. 548.

(1) In Maryland debt will not lie on a note at the suit of a payee or his administrators against the maker. Lindo v. Gardner, 1 Cranch, 343. In Virginia debt will not lie against an acceptor of a bill, even in a suit by the payee. Smith v. Sagar, 3 Hen. and Munf. Rep. 394. Wilson v. Crowdhill, 2 Munf. Rep. 302. But an action of debt lies by statute for the holder of a bill against the drawer and indorser in case of a default in payment. Slacum v. Pomeroy, 6 Cranch, 221.