
    Bain, Dunshee, & Co. against William Ackworth. The same against John Cowan.
    Charleston,
    May, 1817.
    Bill o/exchange draun in Nassau, by a resident oC Charleston, upon a resident of that city .accepted,but? not paid, and drawer and accepter sued here; interest only allowed, and no damages. Different reasons given by the Judges for granting a new trial.
    These actions were brought against Ackworth as the drawer, and Cowan, the accepter, of a bill of exchange drawn in Nassau, payable in Charleston. Ackworth was ¿ resident of Charleston, and the captain of a vessel belonging to Charleston, and owned by Cowan, who was a resident merchant of Charleston. The plaintiffs were merchants engaged in commerce between these places. The bill was not paid by the accepter, but there was no evidence that it was returned to Nassau under protest. One witness testified, that according to the usage of merchants in Nassau, the drawer of a bill in that place on a foreign country, is liable, on the bill being dishonoured, to 12J per cent, damages, The cases were tried before Mr. Justice Smith, in January Term, 1813, who charged the Jury that they should give a verdict according to the law of the place where the bill was drawn. The J ury gave a verdict against both drawer and accepter for the amount of the bill and damages. A new trial is now moved for, on the following grounds r
    1. That a bill of exchange is to be governed by the lex lod where it is made payable.
    2. That the bill not having been returned to Nassau under protest for non-payment, no damages could be recovered, except interest.
    
      3. That the drawer and accepter both beingi residents of Charleston, and the bill made payable there, it ought to be considered as an inland on which no damages would he recoverable.
   Cheves, J.

delivered the opinion of the Court.

The only material question in these cases is, whether damages shall be allowed. Damages are, according to the general law merchant, compounded of the ordinary expenses incurred on a bill of exchange which has not been honoured, and the price of re-exchange. The last is the great ingredient. To determine whether damages are due in this case, we ought to inquire what re-exchange is ? It is the means of placing money at the place where the bill is payable; it is the difference between the value of money where the bill is drawn, and where it is payable. If the plaintiff recover in the money of the place where the hill is drawn, he is entitled to this difference. If in this, case he had brought his suit in Nassau, he would have been entitled to the re-exchange; but he has brought his suit in Charleston,, where the bill was payable, and has recovered in the money of Charleston, the difference between the value of money (establishing it by the usage and understanding of merchants in Nassau) in that place and Nassau. This; must be wrong; the( performance of the contract which is sought here, must he according to the laws of this place, as it was a contract to be performed here, viz. the payment of money in Charleston. If the payment has been delayed, A ill , he receives what is on the one hand the penalty, and on the other the remuneration of that delay —legal interest.

The principle of this case was determined in the English Courts in the case of Robinson v. Bland, 2 Burr, 1077, and in this Court in the case of M'Candlish v. Cruger, 2 Bay, 377. On this ground, and for these reasons, I am of opinion a 'new trial in this case ought to be granted. My Brother Bay dissents from the opinion which I have declared on this point, and my brothers Mott and Johnson declare no opinion on it. They are all of opinion, however, that a new trial ought to be granted. My brother Bay is of opinion a new trial ought to be granted, because it does not appear in evidence that the bill was protested and returned to Nassau according to the custom of merchants, because he thinks the damages recovered are only recoverable when these acts of mercantile usages are performed. My brothers Molt and Johnson are of opinion that it was a contract for the payment of money in Charleston. The bill was drawn by a captain of a vessel, whose domicil was in Charleston, on his owner, who was a resident merchant of the same place, and the probable object of the payee was to establish funds in this city. Under these circumstances, they do not consider it merely in the light of a foreign bill of exchange, but as already expressed, as a contract to pay money in Charleston, and on such a contract they are of opinion no damages are recoverable. On these gevera] grounds, the Courtis unanimously of opinion that a new trial be granted as well in the 0 of the drawer as the accepter. As to the accepter, we all agree that under no circumstances can he be liable for damages. A new trial is therefore granted in both cases, unless the plaintiff release the damages, in which case the new trial is refused, and the judgment shall stand for the balance.

Gadsden, for the motion.

T. S. Grimké, contra.

Colcock, J. gave no opinion in this case, having been absent during the argument of this and several succeeding cases, holding the District Court for Charleston.  