
    *Stott & Donaldson v. Alexander & Co.
    October Term, 1794.
    Foreign Bill of Exchange — Notice of Protest — Within What Time Should Be Given — Statute. —If notice of the protest of a foreign bill of exchange be given within eighteen months from the date of the bill, it will be sufficient under the Act of Assembly, unless there be particular circumstances to warrant a departure from the general rule.
    This was an action of debt, brought by the appellants against the appellees, as endorsers of a protested bill of exchange drawn by Robert Morris of Philadelphia, in the state of Pennsylvania, which was endorsed to the appellants in this state. The declaration is upon the act of Assembly. On the plea of nil debet, the jury found a special verdict, “that the bill, with three endorsements thereon, two of which are erased, was duly protested in London on the 10th of September 1787, and that notice thereof was given to the defendants, on, or about the latter end of June 1788. If this be a reasonable notice, then they find for the plaintiffs, otherwise for the defendants,”
    The judgment of the County Court, which was in favor of the appellants, was reversed in the District Court, because the verdict was defective, in not finding facts sufficient to enable the court to judge of the reasonableness of the notice of the protest therein mentioned. The verdict was set aside, and the cause by consent of parties retained for a new trial; from which judgment, Scott and Donaldson appealed.
    Ronold for the appellants.
    There is but a single question in this cause, which arises upon the construction of the act of Assembly, of the 22d Geo. II, C. 27. The first branch of the law would give the holder of a protested bill of exchange a right to recover interest at the rate of 10 per cent per annum for any unlimited time, if it were not restrained, by the second branch of the section, to 18 months; 'and from this it is evident, *that the object of the legislature was merely to regulate the interest to be paid upon protested bills, and to fix it at 10 per cent per annum for 18 months, tho’ notice be not given of the protest within that time; and yet it is contended, that for the want of notice, during a period far short of that time, the holder is to forfeit both principal and interest. This construction seems to be repugnant to the plain meaning of the law, and involves a contradiction not fairly to be attributed to the legislature. If the exposition, for which I contend, be right, then it follows, that the jury having expressly found, that notice was given within 18 months, the appellants ought to recover under this act. But if notice short of that time be necessary, still the judgment of the District Court is erroneous, because, what is reasonable notice, is a point of law, and is properly to be decided by the court. This is clearly settled by the modern decisions in England, and from hence, I draw an additional argument to prove, that the act of Assembly was intended to change the law of merchants upon the subject of giving notice. Eor would it not be absurd, that in this country, it should be necessary to give notice of a protest by the following post, as the practice is in England. Such a regulation might be proper and convenient i in that country, the communication from place to place being uniform and constant. But our situation, at the time when this law passed, and long after, and when too our commerce was confined to England, was very different. Our intercourse with that country, was not only confined in a great measure to particular times of the year, but various accidents might happen, to prevent so prompt a notice from being given, and the adoption of such a rule here, would have proved so mischievous, that it would have put an entire slop to the negotiation of bills of exchange, which the legislature (in the preamble to the law) declare it was their intention to “render equal to cash in the payment of debts.”
    Wickham for the appellees.
    We all agree as to the rule established by the law of merchants, but it is contended that the act of assembly was made to change that rule, and the necessity of that change is stated and relied upon to prove such an intention. On the contrary I should conceive, that the inconvenience which would result from such, an innovation in the custom of merchants would be sufficient to induce the court to explode such a construction, unless the law be too clear and express to be got over. The drawer of a bill tacitly' agrees to pay the bill, if dishonoured, provided he has timely notice of the protest, and the holder tacitly agrees to give him that notice.
    *The custom of merchants having established this principle, such ah implied contract, is always understood between the parties, as certainly, as if it were expressed. The inconvenience resulting from a contrary principle, is as strongly exemplified in this case, as in any which could be thought of. The drawer lives in a state, where this rule prevails. If the •plaintiffs in this cause can, without regarding Uiat rule, recover against the indorser, • -the indorser, in an action against the drawer, will be told, that for want of tine notice the drawer is discharged. Who 'Would be mad enough to draw bills, if at any distance of time, they might be returned upon him protested, after all accounts were settled between Mm and the drawee, and after he had otherwise applied those funds, which as a prudent man, he would retain so long as the fate of his bill was in suspence.
    There is a great difference between giving notice of the protest of a bill, and demanding pay men t. The first is necessary by the custom of merchants, to entitle the holder to the principal sum; the latter, to entitle him to the extraordinary interest given by the act of Assembly, which last (beyond 18 months,) he loses unless by presenting the bill protested to the drawer or indorser within that time, he affords them an opportunity of taking it up. It may so happen, that the drawer may have notice of a protested bill circulating in some part of the world, and yet, if it be not shewn to him, so that he may pay it off, he will be excused the 10 per cent for a longer period than 18 months. The object of the law was to fix the interest which the holder should receive, and to lay him under a certain condition to entitle him to that interest. That condition is, that within a certain time he present the bill protested to the drawer. But as to notice of protest required by the custom of merchants, it is left unaffected by the act of Assembly, which never could have intended to alter a general law prevailing in a country with which we principally traded.
    The rule in England, as to the time of giving notice, is not as Mr. Remold has stated it; it is regulated by the circumstances of each particular case, and is a subject which the jury must decide. I admit, that a different rule prevails in cases of inland bills of exchange.
    Campbell on the same side. I admit that in England, what is due notice in the case of inland bills of exchange is a point of law, because the certainty of communication from one place to another, and the uniform decisions of juries upon that point, have so fully ascertained and settled it, that the judges are as competent *as the jury to decide upon it. The adoption of a similar practice in this country would be unjust and preposterous even in the cases of inland bills.
    As to the main question, there is one reason to be given for the custom of merchants, which has not been much relied upon, and which has always had considerable weight with me, independently of those stated in the books. It is this: a merchant who draws a bill, must, if he mean to be punctual, and to preserve his credit, keep unemployed such a portion of his capital, as will enable him to take it up, should it return protested. If he may be kept in suspence as to its fate, for any length of time, (even 18 months) he must either retain that capital unemployed, during all that time, which would be very injurious to commerce, or he must part with it, and run the risk of being called upon unexpectedly to pay a protested bill, at a time when he may be unprepared to do so. It can hardly be believed, that the legislature could have intended to fetter commerce by the establishment of a principle unknown in any trading country, and particularly in that, with which we were solely connected. The law requires a presentation of the bill to the drawer or endorser, not as being necessary to authorise the holder to recover the amount of the bill, but to entitle him to 10 per cent per annum beyond 18 months. As to notice of the protest, the act is en-tircly silent, leaving tViat subject as it stood under the general law of merchants.
    Ronold in reply.
    The legislature certainly intended to alter the custom of merchants upon his subject, and to adapt it to the situation of his country, by declaring that 18 months should be considered as the time within which notice of protest should be given. Those persons whose recollection will carry them back to the period when this law was made, will remember, that protested bills passed from hand to hand as cash and formed a circulating' medium of commerce. The endorsements were never dated, and the bills sometimes remained in circulation here, for many months before they were remitted. This practice the legislature meant to regulate, having a view to the interest of all parties, and to limit the damages to a certain amount.
    Hr. Wickham submitted another question to the court, which was; whether an action of debt upon this bill, (which was drawn out of this state) could be supported under the act of Assembly?
    *Mr. Ronold answered, that it might lie against the present appellees, who made the indorsement in this state, upon the principle, that every indorser is considered as a new drawer.
    
      
      The principal case is cited in Thompson v. Cumming, 2 Leigh 324, 327. See monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      The words of the law are, "That where any bill of exchange is or shall be drawn for th e paym ent of any sum of money, in which the value is, or shall he expressed to be received, and such bill is or shall be protested for non-acceptance or non-payment, the same shall carry interest from the date thereof, after the rate of 10per centum per annum until the money, therein drawn, for, shall he fully satisfied and paid; but lest any person, having- such bill, should, for the sake of the said interest, delay negociating the same, or if after it shall be protested, shall not demand payment of the drawer or endorser thereof, it is hereby declared that no person whatsoever shall pay more than 18 months interest from the date of any bill to the time it shall be presented protested to tbé drawer or endorsers thereof.” — Note in - Original Edition.
    
   The PRESIDENT

delivered the opinion of the Court.

Some general questions have been discussed at the bar, upon the law respecting protested bills of exchange, such as; whether the act of Assembly has not done away the whole custom of merchants on the subject of notice, and whether the holder may not, upon notice at any time however remote, recover his principal money, although he may lose his damages. With these points, the court think it unnecessary to meddle, except so far as they may concern the present case.

The act of Assembly does not seem to interfere with the negociation of bills,.but taking them up as negociated, and protested, proceeds to give the remedy for recovering their amount, leaving the point of their negociation to be decided upon the particular circumstances of each case. As to the diligence necessary to be used by the holder in giving notice of the protest, since that depended upon the situation of the parties, and of the countries between which the exchange was made, the legislature, contemplating those circumstances, seem to have thought 18 months a reasonable time for the whole negotiation, and for the giving of notice, by allowing full damages in case the notice be given within that time.

There may be particular circumstances, which would render a departure from this general rule reasonable and proper; and when they occur, the general rule may not be adhered to; but no such circumstances are stated in the present case. The bill is dated in Philadelphia on the 15th of March 1787, — endorsed in Virginia, but at what time does not appear. It was presented for •acceptance about the 10th of June, and protested in September in the same year. Notice was given to the defendant in the latter end of Junei788, all within 15 months from the date of the bill, and the question submitted by the jury is, whether this be reasonable notice. No facts being stated to take this case out of the general rule before mentioned, and established by the act of Assembly, we are of opinion that the notice is reasonable.

As to the opinion of the District Court, respecting the insufficiency of the finding, it is no objection to a verdict, that enough is not found to answer the purpose of one of the parties, ^provided what is found, be clearly stated, which is the case in the present verdict.

Judgment of the District Court reversed,, And that of the County Court affirmed.  