
    STUART et al. v. RALSTON et al.
    September 29, 1838.
    
      Case Stated.
    
    Damages on a foreign bill of exchange, protested for non-payment, are recoverable against the drawer, under the act of ÍSOth March, 1821, at the rate of exchange at the time of the presentment of the bill for payment accompanied with notice of protest, and not at the rate at the time when a notice*of protest was received by the drawer, without a presentment of the bill.
    THE following case was stated for the opinion of the court. “ This is an action brought by the plaintiffs as holders, against the defendants as drawers of a bill of exchange on London, for the amount of the bill with damages, it having been protested for non-payment. The whole claim has been settled, except the difference of exchange, between sixteen and twenty per cent
    “ It is agreed that the bill on which suit is brought, was not presented to the defendant until October 16, 1837, at which time the rate of exchange with England, was sixteen per cent, advance. That official notice of protest was handed by one of the plaintiffs to the defendants, and payment demanded on the fifteenth of August, 1837, at which time the rate of exchange was twenty per cent, advance, to which the defendants replied that the bill would be settled when presented.
    “ If the court shall be of opinion that the plaintiffs are entitled on the above facts, to a settlement at the rate of twenty per cent, above mentioned, then judgment to be entered for the plaintiffs for one hundred and forty dollars and two cents, with interest thereon from this date. But if the court shall be of opinion that they are only entitled to sixteen per cent, as aforesaid, then judgment to be entered for the defendants without costs. Either party to be entitled to a writ of error.”
    
      White, for plaintiff,
    cited Act of 30th of March, 1821, (Stroud’s Purd. tit. Bills of Exchange.)
    
    
      Sharswood, contra,
    cited 7 Mass. 483; 17 Mass. 449 ; 12 Pick• 132; 7 Gill & Johns. 78; 3 WA. 116 ; 3 Wash. C. C. Rep. 125; 1 Yeates 204; 8 S. & R. 331 ; 4 Yeates 19 ; 1 Dali 23 ; Act of 1700.
   Per Curiam.—

The question submitted is, whether the damages ai*e to be computed at the rate of exchange at the time of the notice of protest, or at the rate at the time of the presentment of the bill to the drawer. Although the second section of the act of 1821 specifies that the damages shall be ascertained and determined by the rate “at the time of notice of protest and demand of payment,” yet the following words, “as before mentioned,” refer to the provisions of the first section, which designate that “ whenever any bill &c., shall be returned unpaid, with a protest,” the payee shall have his damages and charges. The act therefore contemplates that the notice of protest and demand must be accompanied with the return of the bill, or otherwise the drawer is not liable for the damages. And it would be strange if the drawer could be compelled to pay the principal and damages upon merely receiving notice of protest, while the bill might be in the hands of third persons.

Judgment for defendant.  