
    Puckett v. Redman.
    An inland bill of exchange, drawn before the act of 1836, talcing off damages, but protested for- non payment after the passage of the act, is not entitled to damages.
    IN error to the Clairborne circuit court.
    This was an action in the court below, on an inland bill of exchange, dated the 28th of October, 1835, payable fifteen months after date; accepted and protested 31st of January, 1837, for non payment.
    Upon the trial, the court instructed the jury, “ that the plaintiff was entitled to recover damages, at the rate of five per cent./’ to which opinion an exception was taken, and the decision below is now assigned for error.
    Montgomery, for plaintiff in error.
    The only question in this cause is, whether the court below erred in charging the jury that the plaintiff was entitled to five per cent, damages on the bill of exchange sued on.
    The bill was drawn before the passage of the law of 1836, page 118, and was protested after that act took effect.
    Damages are no part of the contract, but a penalty for non performance, the right to which arises only on protest. If damages were a part of the contract, then upon any state of the case which would' entitle the plaintiff to recover, he would be entitled, but there are various circumstances which excuse the plaintiff’s neglect to protest, (as want of funds in the hands of the drawer,) upon proof of which the plaintiff may recover the principal and interest, but in such case no such damages are allowed, because the statute only allows them in case the bill be returned protested. If the circumstance of the bill being “returned protested” be the sole ground for the recovery of damages, then of course, the right to them must be governed by the law in force at the time of protest, by which law no damages were allowed on the bill on which this action is founded. See Revised Code, Acts of 1836, 118. Interest has been adjudged to be no part of the contract. See Chitty on Bills, 662.
    Hughes, for defendant in error.
    The liability of the drawer is complete by the delivery of the bill. His engagement is, that the drawee is capable of contracting, is to be found at the place where it is directed, that he will accept when presented, and will pay when due, and that he will pay the amount of the bill together with damages, &c. Chitty on Bills, 214, 215; 1 Douglass, 54.
    The agreement is, that in the event that it is not paid that the drawer will pay. Pay what? . Not the damages which the law may hereafter declare to be the damages in such cases, but what the law at the time declares to be the damages.
    Damages on bills are given in lieu of re-exchange, and expenses. Chitty on Bills, 664; Bangor Bank v. Hook, 5 Greenl. 174.
    The statute is a liquidation in advance of the amount which the holder may recover for damages, and is a substitution in place of the agreement of the parties as to damages, for re-exchange, &c., like the law on the subject of interest. See Fonblanque, 640, 641.
    By the lex mercatoria as practised upon in England, upon the protest of a bill the holder was entitled to re-exchange, &c. Chitty on Bills, 666, 667.
    Upon the drawing pf the bill, the agreement is to pay when protested, if protested, whatever the amount of the re-exchange is. Ibid in note W.
    In this state, the amount which is agreed to be paid in the event of a protest was, at the date of this bill, five per cent. See Revised Code, 462-3.
    In both England and in this state, there is a contract by which the parties fix the extent of their liabilities, and we insist that any statute which may alter the extent of that liability, is a statute impairing the obligation of contracts. If an agreement is made to-day, for the payment of a sum certain, this time next-year, in the event of failure to pay, the law steps in and fixes the extent of liability for interest, and if, before the money is due, the law alters the rate of interest, the agreement previously made will not be affected by it. Walker’s Rep. 215.
    The damages being upon the same footing with interest, whatever would affect the contract in the one, would do the like with the other. The constitution is, that the legislature shall not impair the obligation of contracts. Bill of Rights, sec. 19.
    If the statute of 1836, Pamphlet Acts, 118, be brought to bear on this subject, it will be found to violate this provision of the constitution.
    It is true the rule is, that the legislature may, if they think pro-, per, pass a restropective law; but the court will never presume that it is the intention of the legislature to pass such a law; and if such a law be passed, by it the obligation of a contract cannot be affected or a right vested, be divested. ■ Dash v. Van Kleek, 7 Johns. Rep. 477; Davis v. Minor and Wife, in this court, Opinion Book, 44, 45, and particularly 46, 47.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action is founded on a protested bill of exchange, drawn before the passage of the act of 1836, taking off damages, but protested for non-payment, after the passage of the act. The only question is, whether under these circumstances, the plaintiff below was entitled to five per cent, damages.

The right to damages did not accrue at the time of making the bill. The failure to pay conferred the right, and nothing else. As no right to damages had accrued, while there was a .law in force, by which it could accrue, the repeal of the law defeated the right.

The language of the first section of the act is, “ that all bills of exchange drawn, or which may hereafter be drawn;” which extends as well to those in existence and 'unprotested at the time of the act as to those afterwards drawn.

It appears, therefore, to have been the object of the legislature to extend the application of the law, as far as it could, to bills then in existence.

The judgment must be reversed, cause remanded and venire de novo awarded.  