
    Lang against Brailsford.
    A protest is to charge an the^principai change ;°fhut lysoTiforder to charge him wii.li interest fbr non-pay-xnent ¿, because it is evidence of a demand3 which ought to be proved, before the party can be charger. Me with any neglect.
    CASE upon a bill of exchange. The bill, it seems, wag drawn by Pozuell, Hopton, and Co. dated Charleston, Decern-her 1st, Iff6, upon Samuel Brailsford, the defendant, in Bristol, requiring him two years, after sight, to pay to Richard Champion, or order, a certain sum. It was accept-e¿ by Brail-tford thus: “ Accepted, payable at the house of j j 1 1 “ Brown and Collingson, London. Samuel BradsfordP
    
    
      At the trial it was admitted, on the part of the defendant, that he was one of the house of Powell, Hopton, and Co. That this bill was accepted, as appeared by the face of it. That though indorsed to Lang, the interest that might be obtained upon the bill, was still to be the property of Champion. On the part of the plaintiff, it was admitted, that no protest of this bill for non-payment, had ever been made; and by both parties, admitted, that Champion and Brailsford resided, during the whole of the late revolutionary war, in England,, and that for several years since the peace, they have both resided in this state. No demand, however, was proved or admitted, of the principal or interest, either in 'England or Carolina: nor any application for payment to Messrs. Broxun and Collingson ; neither was it proved that they had any funds of the defendant in their hands, either at the time of the acceptance, or at any time after it.
    The case came on to be tried by a special jury, before the Chief Justice, and Justice Buree, when
    
      Pinckney and Rutledge, for defendant,
    objected, that though the principal sum in this bill was recoverable, yet no interest could be recovered; because the bill was never protested for non-payment, nor any demand made, either of Broxun and Collingson, the defendant’s bankers, or the defendant himself. They urged, that when a bill is accepted and not paid, it is necessary for the holder immediately to have it protested, in order to entitle himself to interest and damages. That the custom of merchants required this, and the law uniformly laid it down as a duty incumbent on the holder. But at least, there ought to have been a demand upon Messrs. Broxun and Collingson, the bill being expressly accepted payable by them. That the drawee of a bill, may accept it conditionally or specially ; and though the holder may object to such an acceptance, and protest the bill, yet if he admits such acceptance, he will be bound by it; and eked 2 Str. 1152. Smith v. Abbott. ' That here, the plaintiff was satisfied with the bill, as was accepted at the time, and therefore must look to Broxun and Collingsonfirst for the money. That the defendant was obliged, upon she penalty of becoming a bankrupt in England, to keep nw= ney in the hands of his bankers, for the purpose of paying this bill, and it would be extremely hard to charge him interest for this money, when he was obliged to keep the sum lying in his hands without using it. In support of both points, viz. the necessity of a protest, and of a demand, they next cited Lex Mercator. 418. s« 30. 3 Bac. Abr. 614. 2 Atk. 611. Pozvell v. Monier. 2 Sir. 1195. Bishop v. Chitty. Cunning, 93. cites 6 Mod. 10 Mod. Salk. 131.
    It was further contended by them, that this bill of ex* change would now be barred in England,, by the statute of limitations there, more than six years having elapsed since the acceptance-; and cited 2 Stra. 733. to prove that when a man is discharged from an acceptance, by the laws of a foreign country, he cannot be sued here for the same debt. Upon the whole, they concluded, that as there was no protest, no demand of the bankers, Brown and Collingson, not even a demand proved upon the defendant himself, either in England or this country ; and that as the plaintiff would now be barred there, by their statute of limitations ; and that, in all cases, reference must be had to the laws of the country where the contract was to be performed; — for these reasons they prayed a verdict for the defendant; especially as far as related to the interest; but that, if they gave any interest at all, it could be only from the time of commencing the present suit, that being a legal demand.
    Pringle, Desaussure, and Ford, contra,
    insisted, that neither a protest or demand was necessary, in order to entitle the holder to interest. And they laid it down as a position^' “ that between the acceptor and the payee of a bill of ex-4‘ change, ' a protest is in no case necessary for any one purpose whatever.” To prove this, they resorted to the legal notion and operation of a protest. That the only purpose of it is to enable the holder of a bill to charge the drawer or indorser. That it never having been the intention of the plaintiff to charge the drawer in this case, he made no protest ; and they admitted, that, if the present suit were against him, the want of a protest would be a bar. They cited 2 BL Com. 469. 2 Burr. 674. Ld. MansjielcCs argt. These, they thought, proved the position. They said there were some cases where interest and costs have been refused for want of protest ; but these were against the drawer, and upon inland bills of exchange, which depend on the stat. 9 and 10 Wm. III. and not on the common law. So are the cases in 2 Sira. 910. 1 Sira. 648, 9. They cited Cro. Car. 301. Barnaby v. Rigalt. 1 Morgt Vad. Mee. S3. 3 Bac. Abr. 612,13. The objection being removed, they contended that interest was demandable of right. This being an acceptance, payable at a day certain, it was, they contended, a liquidated sum, and a definite assumption ; and compared it to a note of hand, payable at a certain day, which always carries interest from the day it is payable, whether there is a demand or not. So of liquidated accounts. That an acceptance is a complete promise, they cited 1 Raijm. 88. Doug. 235. Dingwall v. Dun« ster. 1 Esp. 34. 42, 43. 1 Wils. 185. 2 Burr. 1083. 1085, 1086. Robinson v. Bland¡ where, they contended, the doctrine was conclusively applicable to the present case. 3 Wils. 205. 2 Bl. Rep. 761. 3 Burr. 1354. 1663. They contended that all these cases made the certainty of the sum, and of time of payment, the standard by which to estimate the time of drawing interest. As to the necessity of a demand, they alleged that it made no difference, unless the defendant had proved that he actually had the money lying in the hands of Brown and Collingson ; and that, as to a demand on himself, there could be no niore occasion for it than in the case of a promissory note, payable two years after date.
    As to the British statute of limitations, they contended that it could not be given in evidence, but must be specially pleaded. This is law, both here and in England. They admitted that, in general, foreign laws may be given in evh dence, but that where any one law in that country must be specially pleaded, such law formed an exception, and must be pleaded here. Upon the equity of the case they also, lastly, contended, alleging that this bill was a substantial evidence of a debt, and that the plaintiff had been out of the' use of the money, and had suffered, by the want of ifc; equally as much as though the debt had arisen upon any other mode of assumption. And, finally, that in all cases the jury ought to regard the equity of the case, and, as far as possible, in their verdict, compensate the injury which any party had sustained by the default of another.
   Rutledge, Ch. J.

delivered the opinion of the court; and charged the jury that a protest was not necessary to charge the acceptor with the principal, but that it was materially essential to charge him with the interest; because It is evidence of a demand, which the court held to be necessary, in order to entitle the plaintiff to the interest.

The jury found for the plaintiff, dropping the interest antecedent to the time of commencing the suit; but, previous to-the verdict being known or read in court,

Ford., the attorney on record, thought proper to enter a nonsuit, in order that, in a future action, he might have an opportunity of proving, the requisite demand, which he said Tlould be in the plaintiff’s power to- do.  