United States v. Jacob Barker. bankers of the United States. Where that is not the case, it is usual, not to send the bill back to the last endorser, but to some third person, who may apply for payment to such endorser, as well as to every other party to the bill. But be this so, or not, if the holder of a bill, whether as agent or creditor of the remitter, will send it back to the latter, the Court entertains no doubt, that the party to whom it has been thus sent back, and who may have previously endorsed it, may not only sue in his own name, but may at the trial strike out. his own subsequent endorsement, and fill up all the preceding blank endorsements, so as to make them correspond with the title set forth in his declaration. Why this was not done I know not; but as it might have been done, and would be permitted on a future trial, almost as a matter of course, this Court does not think it necessary or proper on that ground to reverse the judgment of the District Court. It is considered. rather as an objection of form, and cured by the 32d section of the judiciary act. Whether the Messrs. Barings might have urged any objection on the trial to striking out the endorsement to them, it becomes unnecessary to inquire. The Court is to decide on the evidence which was given, and not on that which might have been given, unless such evidence had been rejected. It is on this evidence that the Court is of opinion, that the endorsement to those gentlemen, although in full, might have been obliterated if necessary on the trial; although it would perhaps be more reasonable and the better course always to presume, that the actual holder of a bill was its proprietor, unless the contrary were shown, without requiring of him to strike out any subsequent endorsement—as a bill seldom gets into the hands of a prior endorser, until all the subsequent ones are satisfied; and it may be necessary in some cases to prove, that the bill has belonged to some other person, whose name may be upon it, for the holder to avail himself of a promise made to such party, which may more United States v. Jacob Barker. easily be done where the endorsement is suffered to remain in its original shape, than after an obliteration takes place. Another objection made at the trial, and which arose out of the evidence of the plaintiffs below, was the unreasonable delay which it was said had taken place, in presenting the bill for acceptance, and in giving notice of its protest for nonacceptance, and non-payment. The bill appears to have been presented for acceptance on the 3d day of October, 1814, which was three months after its date, and was protested on that day for non-acceptance. The Court is of opinion that the presentation was in time. Even if war had not then existed between the two countries, I am not prepared to say, that this would not be deemed a timely presentation of the bill, without other circumstances. appearing, than the mere fact that it was not presented until after the lapse of three months. Vessels not unfrequently have passages of that length; but when it is considered, that the bill was drawn in time of war, which renders any intercourse precarious and not of very frequent occurrence, it would be too much for any Court to say, that the delay here complained of shall destroy the right of the United States to recover on this bill. Notice of the protest for non-acceptance was given to the drawer on the 12th December, 1814, but a little more than two months after date of the protest. The Court is of opinion that this was also using due diligence; and that even in time of peace, no laches could have been imputed on this account to the holders of the bill. On the 5th December, 1814, a protest was made at Liverpool for non-payment of the bill, of which the plaintiff in error had notice on the 22d day of May following, after a lapse of a period of upwards of five months. This is primâ facie so great a delay, that it is said, that unless the defend United States v. Jacob Barker. ants in error can account for it, it must be fatal to their claim, for the damages of twenty per cent. at least; and it is further said, that the arrival of the British sloop of war Favourite, on the 12th of February, 1815, was a matter of so much notoriety, that this Court can take notice of it, although no evidence was given of it at the trial. Admitting this fact to be properly before the Court, it proves only that a single vessel had been despatched from England by way of Falmouth, nine or ten days after a treaty of peace had been signed at Ghent; but, whether the agents of the United States knew that such a vessel was to be despatched in time to write by her, does not appear. They may very well, considering the haste in which she was despatched, and the distance from London of the port from which she sailed, have known nothing of the intention of government to send the Favourite to this country. It is not stated, or proved, that any other vessel arrived from England, until the one by which the protest for non-payment came. When it is considered that the treaty of Ghent was not ratified until the latter end of February, and that it would not be known in England until some time in April, before which time no vessel could with prudence sail from that country for the United States; this Court cannot say that the notice of non-payment is liable to the objection made to it at the trial; and is further of opinion that this question, there being no dispute about facts, was properly a matter of law; and that the District Court did right in considering it in that light, and in instructing the jury, that the defendants in error had a right to recover, notwithstanding the alleged negligence on their part. We may as well here dispose of some other exceptions, which have some connexion with the three just decided. It has been urged, that the twenty per cent. damages cannot be recovered, where the action is brought on a protest for non United States v. Jacob Barker. acceptance, and before notice to the drawer of a protest for non-payment. It is not very necessary to inquire, as was done at the bar, whence the custom arose in this state, of allowing the holder of a bill of exchange, when returned under protest, not only the amount of the bill, but twenty per cent. damages, as a compensation for his disappointment. Whether it be a badge of colonial submission, or whether it has arisen out of a want of confidence which our merchants have in each other, it is now settled law, which nothing but an act of the legislature can alter nor is it in the recollection of the Court, that it has ever heard it complained of. Nor is it necessary to decide, whether on a mere protest for nonacceptance, these damages are recoverable, although it is part of the drawer's contract, that the bill shall be accepted; and its negotiability and use to the holder is greatly impaired by a refusal to accept; and as no reason can be assigned, why there should be two actions, when one will answer, it might not be difficult to argue in favour of those decisions which have determined this point against the plaintiff in error. But without laying any great stress on these decisions, it is admitted, that in this case a right of action ensued, on notice of the protest for non-acceptance. And the action was accordingly commenced, shortly after the notice was given; but not until after a protest for non-payment was made in England, although not notified to the drawer here. The declaration contains a count on the last protest; and under this count, as well as the one for non-acceptance, a general verdict was taken, which included twenty per cent. for damages. This, in the opinion of the Court, was correct; for, as the action was rightly commenced, it was not improper to admit evidence of the protest for non-payment, although notice of it were not given until after the commencement of the action, in order to destroy every presumption that might have been raised of the bill's having been honoured at maturity. Where the right to re cover damages is perfect at the time of trial, a plaintiff should United States v. Jacob Barker. be permitted to show it, provided the action, which is conceded to have been the case here, was not prematurely brought. The opinion of the Court then, is, not only that the damages were recoverable on this state of things, but that a verdict was properly taken on both counts. Another objection taken at the trial, which was also overruled, arose out of the supposed illegality of the transaction. The United States and Great Britain being then at war, it was unlawful for the plaintiff in error, in the opinion of his counsel, or for any other citizen of the United States, to draw a bill of exchange on any subject of Great Britain, or other person residing within the British dominions. In support of this opinion, Bynkershoeck and other writers on national law, have been referred to as establishing the doctrine, that every species of intercourse or communication, whether direct or indirect, whether commercial or of any other character, whether personal or by letter, is strictly inhibited between subjects of belligerent nations, unless under the immediate license of their respective governments; and much has been said to show the extreme danger of permitting, during such a state of things, any kind of correspondence which is not sanctioned by necessity, or cannot be excused on the plea of humanity. As it regards Bynkershoeck, it is manifest, that when laying down the rule on this subject, he confines it, however general his language may be in other respects, or whatever his reasoning may be upon it, to an intercourse strictly commercial. "From the very nature of war," says he, "it cannot be doubted, that commerce between enemies must cease." This is also the meaning of other elementary writers; and it is a proposition which no Court can have any disposition to quarrel with. Such a state of things must necessarily ensue upon every declaration of war. But if the dicta or reasoning of some writers, who suppose they have done nothing more than to follow the authors just |