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Costs of Other Suit.

462

§ 1718. Where the principal debtor pays a bill after several actions brought against the other parties to it, the holder will still be entitled to his costs in every action, unless it is otherwise provided by statute.461 But in Pennsylvania it is provided that attorney's fees cannot be taxed in more than one suit on the same instrument.* And it has been held that an indorsee cannot recover costs in an action against the maker, after receiving satisfaction from the indorser in an action subsequently begun against him.+63 And one party is not liable for the costs incurred by another; e. g. an indorser, for costs recovered against the acceptor.464 But he will be liable for such costs, if they were incurred at his request and on his responsibility.405 It is provided expressly in Alabama that the costs incurred in a suit against the maker may be recovered against the assignor of a note.466 An acceptor is not liable for costs incurred in a suit against the indorser.467 But, where a party seeks the indulgence of the court (e. g. on an application for a stay of proceedings), he may be required to pay the costs in another suit, also.168

Damages on Dishonor-What Law Governs.

§ 1719. The liability of the indorser of a foreign bill for damages is determined by the law of the place of indorsement; 469 and that of the drawer by the law of the place where the bill is drawn,470 and

461 Byles, Bills, 411; Benj. Chalm. Dig. art. 232; 2 Pars. Notes & B. 458; Toms v. Powell, 6 Esp. 40, 7 East, 536.

462 Purd. Dig. p. 188, § 9; Id. p. 1371, § 9.

463 Gilmore v. Carr, 2 Mass. 171.

464 Bangor Bank v. Hook, 5 Me. 174.

465 And that without proof of payment of the costs to the attorney. Bullock v. Lloyd, 2 Car. & P. 119.

466 ALABAMA (Code, § 1782); and if nonnegotiable (Id.).

467 Barnwell v. Mitchell, 3 Conn. 101.

468 Byles, Bills, 418; 2 Pars. Notes & B. R. 691; Lewis v. Dalrymple, 3 Dowl. 433. v. Taylor, 10 Exch. 441.

458; Smith v. Woodcock, 4 Term But this is not necessary. Cornes

469 Slacum v. Pomery, 6 Cranch, 221; Cullum v. Casey, 9 Port. (Ala.) 131. 470 Price v. Page, 24 Mo. 65; Page v. Page, Id. 595. So, in England, if proved as special damages, and notwithstanding the allowance in the Bills

not where the suit is brought.471 Thus, if a bill is drawn and indorsed in Alabama upon a house in London, the law of Alabama will fix the liability of drawer and indorser for damages.472 And this is so even where the bill is sent to England with blanks left to be filled on its being negotiated there, and in such case the law in force at the time the bill was drawn will govern. 473 Where an accommodation acceptor, however, brings suit against the drawer, it has been held that his right to damages will be regulated by the law of the place of payment, provided such rate is not larger than that allowed by the law where the bill was drawn.*74

Statutory Damages.

§ 1720. By custom recognized by the law merchant, damages are sometimes allowed in addition to exchange, or in lieu of it, without any statutory provision. Thus, in Massachusetts, the holder of at protested foreign bill was formerly entitled to recover 10 per cent. damages, by custom, besides interest and protest fees. And this custom, which extended to Maine, also, has been held to be a part of the contract, and not subject to be changed by the court in a time of crisis.476 In New York the holder of a protested foreign bill might formerly recover 20 per cent. damages against the drawer, besides exchange and interest.477 In Rhode Island, where a bill was payable in sterling money, it was held that the court might assess

of Exchange Act for indorsement of "liquidated damages." In re Gillespie, 18 Q. B. Div. 286, affirming 16 Q. B. Div. 702. Otherwise, in general, the law of the place of payment controls. In re Commercial Bank of South Australia, 36 Ch. Div. 522.

471 Though the statute was repealed after protest and before action brought. Allen v. Bank, 5 Whart. (Pa.) 420.

472 Cowperthwaite v. Sheffield, 1 Sandf. (N. Y.) 416. Although it was first negotiated in another state. Ex parte Heidelback, 2 Low. 526, Fed. Cas. No. 6,322.

473 Lennig v. Ralston, 23 Pa. St. 137.

474 Cooper v. Sandford, 4 Yerg. (Tenn.) 452.

475 Grimshaw v. Bender, 6 Mass. 157; Barclay v. Minchin, Id. 162.

476 Wood v. Watson, 53 Me. 300.

477 Denston v. Henderson, 13 Johns. 322; Graves v. Dash, 12 Johns. 17. Although the 20 per cent. was originally held to include all re-exchange. Hendricks v. Franklin, 4 Johns. 119.

10 per cent. damages upon it against the drawer.478 Such damages are now provided for by statute in many of the United States.* 478 Brown v. Van Bramm, 3 Dall. 344.

479

479 In ALABAMA the statute allows 5 per cent. on protested bills, inland or foreign, in lieu of all charges other than protest fees before protest (Code, §§ 1771, 1772), on protest for nonacceptance or nonpayment (Id. § 1775); also 100 per cent. from date of issue on bills not exceeding one dollar, issued without authority of law (Id. § 1755). ARKANSAS: On protested bills "for value" after date, 4 or 5 per cent. if payable in the United States, according to locality, and 10 per cent. if payable beyond the United States (Sand. & H. Dig. § 482); and, against the acceptor, 2, 6, or 10 per cent., according as the drawer resides in Arkansas, in other of the United States, or in a foreign country (Id. § 483). CALIFORNIA: In lieu of interest before notice of dishonor, re-exchange, expenses, and all other damage, and in favor of holders for value only, on protested bills, 2 per cent. if drawn on persons in the state; 5 or 10 per cent., according to locality, if drawn on another state; and 15 per cent. if drawn on any foreign country (Civ. Code, §§ 3234-3236). COLORADO: 10 per cent. damages, besides charges of protest, on foreign bills and bills drawn on persons out of Colorado, and within the United States (Mills' Ann. St. §§ 241, 242). CONNECTICUT: Bills drawn upon other states, and protested, 2, 3, 5, or 8 per cent., according to locality, in lieu of interest and charges before notice of dishonor (Gen. St. 1864). NORTH DAKOTA: In favor of holders for value only, on protested bills. in lieu of interest, exchange, and other expenses before notice of dishonor, 2 per cent. if drawn on persons in the territory; 3 or 5 per cent. on other of the United States, according to locality; and 10 per cent. on any foreign country (Rev. Codes, $$ 4956, 4957). DELAWARE: 20 per cent. on bills drawn on persons beyond seas, and protested against drawer, indorser, and all concerned (Rev. Code, c. 63, § 3). The DISTRICT OF COLUMBIA: On protested bills, 15 per cent. if drawn on any foreign country, and 8 per cent. on any other of the United States, besides re-exchange and costs of protest; and an indorser paying such damages may recover, with interest on the same, from prior parties (Comp. St. c. 8, §§ 11, 13). GEORGIA: On protested bills payable at any place out of Georgia, and within the United States, 5 per cent., and on bills payable out of the United States 10 per cent., besides interest and protest fees, the acceptor also being liable (Civ. Code, $$ 3689, 3690). ILLINOIS: 10 per cent. damages on protested bills payable without the United States, and (where suit is brought) 5 per cent. on bills drawn on other of the United States, besides legal interest from maturity and costs of protest (Hurd's Rev. St. c. 98, §§ 1, 2). INDIANA: In favor of holder for value only, 5 per cent. on protested bills drawn on other of the United States, and 10 per cent. on a foreign country, inclusive of interest before protest and exchange between different states, unless paid on notice of protest (Horner's Rev. St. $$ 5507-5511); but this does not apply to bills payable without the

Statutory damages are not given as a penalty against the drawer for drawing without authority, but as a compensation for, and in lieu of, re-exchange and other damages. 480

state, but not intended to be presented there, and provided for within the state (Id. § 5512); nor to notes discounted by a bank and protested for nonpayment (Id. § 5513). IOWA: 5 per cent. when drawn on any foreign country, or on California, Oregon, Nevada, or any territory, and 3 per cent. on any other of the United States, together with interest (Code, § 3055). KANSAS: Negotiable paper drawn on persons outside of the state, and protested, is subject to 6 per cent. damages, and no person in Kansas is liable to protest damages (2 Gen. St. c. 115, §§ 16, 17). Damages may also be recovered of a party promising to accept, and then refusing, by a promisee who takes the bill on the faith thereof (Id.); and no damages can be recovered on paper containing a waiver of protest, if it be agreed to be paid at any other place than that on which it is drawn, or by any other person than the drawer or maker (Id.). LOUISIANA: 10 per cent. on bills drawn on foreign countries, and 5 per cent. on any of the United States, in lieu of protest fees and other charges and interest before protest (Rev. St. §§ 320, 321); and on protested circulating notes, 12 per cent. damages, in lieu of interest until judgment (Id. § 1886). MAINE: On protested bills for more than $100, payable in Maine at a distance of 75 miles, 1 per cent., and, if payable in any other state or territory, 3, 6, or 9 per cent., according to locality (Rev. St. c. 82, § 42); interest being also recoverable. Orono Bank v. Wood, 49 Me. 26. MARYLAND: 15 per cent. on protested bills drawn on any foreign country, and 8 per cent. on other of the United States, besides re-exchange and costs of protest (Pub. Gen. Laws, art. 13, §§ 1, 4); and any indorser of a foreign bill may recover damages paid, with legal interest, from any prior party (Id. § 2). MASSACHUSETTS: 1 per cent. on notes for $100 or more, payable in Massachusetts at a distance of more than 75 miles (Pub. St. c. 77, § 21); 2, 3, 4, or 5 per cent., according to locality, on bills payable in any other of the United States (Id. § 20); and 5 per cent, on bills payable beyond the United States, against any party liable, besides re-exchange, and in lieu of other charges and expenses (Id. § 18). MICHIGAN: Against any party liable, on protested bills, payable in any other of the United States, 3, 5, and 10 per cent., according to locality; and, out of the United States, 5 per cent., besides re-exchange, and in lieu of other charges and expenses (How. Ann. St. §§ 1584, 1585). MINNESOTA: On bills payable without the limits of the United States, 10 per cent., besides re-exchange, in lieu of other charges and expenses; on bills payable in other of the United States. 5 per cent. and legal interest, according to its tenor, and costs of protest (Gen. St. §§ 2234, 2235).

480 2 Daniel, Neg. Inst. 446; 1 Pars. Notes & B. 662; Allen v. Bank, 5 Whart. (Pa.) 420; Lennig v. Ralston, 23 Pa. St. 137; Bangor Bank v. Hook, 5 Me. 174.

Party Entitled to Damages.

§ 1721. The damages recovered on a protested bill belong to the party at whose risk and cost the bill was remitted.181 If the bill MISSISSIPPI: 10 per cent. on protested bills on foreign countries, and 5 per cent. on any other of the United States, besides interest, costs, and charges (Ann. Code, § 3506); but no damages shall accrue on inland bills protested, although they must be protested if over $20 (Id. § 3507). MISSOURI: In favor of holders for value only and against drawer, indorser, and acceptor, 4 per cent. on protested bills "for value," drawn, indorsed, or accepted, payable in Missouri; 10 per cent. in other of the United States, and 20 per cent. in any foreign place, in lieu of other charges and protest fees (Rev. St. §§ 725-730); unless paid within 20 days after demand or notice (Id. § 729); but not on negotiable notes to order of fictitious person or maker purchased from the maker (Id. § 735). To be computed on the principal sum only. Barnes v. McMullins, 78 Mo. 260. NEBRASKA: 12 per cent. on persons without the United States, and 6 per cent. on other of the United States (Comp. St. § 3386). NEVADA: In favor of holder for value only, on protested bills drawn on persons east of the Rocky Mountains, 15 per cent.; and, on foreign countries, 20 per cent., besides interest after notice (Gen. St. §§ 4892, 4893). NEW YORK: In favor of holder for value only of bills drawn on persons in the New England or Middle states, Ohio, Maryland, Virginia, or District of Columbia, 3 per cent.; in North Carolina, South Carolina, Georgia, Kentucky, or Tennessee, 5 per cent.; and, elsewhere out of New York, 10 per cent., in lieu of interest, protest fees, and charges before protest (1 Rev. St. p. 770, §§ 18, 23). Damages may also be recovered against one who promises to accept (Id. 768, § 10). NORTH CAROLINA: On bills drawn on any other of the United States, 3 per cent., and, on foreign places, 10 per cent. (Code, § 48). OREGON: On bills payable without the United States, 10 per cent damages, besides re-exchange, in lieu of other charges; and, on any other of the United States, 5 per cent. and costs and charges of protest (Hill's Ann. Laws, §§ 3195, 3196). PENNSYLVANIA: On bills drawn on other of the United States and on foreign countries, 5, 10, 15, or 20 per cent., according to locality, besides re-exchange and charges of protest, and in lieu of other charges (Brightly's Purd. Dig. p. 221, § 7). RHODE ISLAND: On protested foreign bills, 10 per cent. and charges of protest (Pub. St. c. 166, § 1); and, on protested inland bills, 5 per cent, and charges of protest (Id. § 3). SOUTH CAROLINA: On bills on places out of the state, 10, 12, or 15 per cent., according to locality, besides all charges incidental thereto, and interest until paid (Rev. St. § 1401); but the drawer is liable only on protest and notice, made within 14 days, in case of nonacceptance, or of acceptance and nonpayment for three days after maturity (Id. § 1395). TENNESSEE: On protested bills drawn 481 Keppele v. Carr, 4 Dall. 155.

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