The plaintiff in an action on a bill or note is entitled to recover the principal and interest, and expenses, and in some cases re-exchange and damages.

Principal.] In general the plaintiff is entitled to recover the whole of the principal money, even though as against some other party, he will not be entitled to retain the whole amount. Thus where a bill is given for a valuable consideration between the drawee and drawer, the indorsee, though he has not given his indorser the full amount of the bill, may yet recover the the whole, and be the holder of the surplus above the sum he has really paid, to the use of the indorser. Wiffen v. Roberts, 1 Esp. 261. ante, p. 105. Whether the indorsee of a bill, receiving part payment from the payee, may recover the whole amount against the drawer, does not appear to be well settled. The case of Johnson v.Kennion, as reported in 2 Wils. 262, is as follows; the action was brought by Johnson the indorsee against Kennion, the drawer of a bill for 1000l. payable to Benson, who indorsed to the plaintiff in order to get the bill discounted. The plaintiff delivered the bill to Baldwyn, who advanced the the whole money; Benson paid 2321. to the plaintiff, then Baldwyn redelivered the bill to the plaintiff, who repaid him the residue. There was a verdict for the whole 10001.

Upon shewing cause why there should not be a new trial, the plaintiff having been paid part of the sum, Lord Camden C. J. said, "Consider the nature of these contracts; they are negotiable bills, passing through the hands of divers persons, and though there are many indorsements on the bill, yet there is but one security for one sum of money, and he who has the possession of the bill, may bring his action; where there are many indorsers, the indorsees have a right of action in succession, but there is but one right of action, under the bill against one person at one and the same time. The bill being in one indorsee's hand, the indorser pays a part, and the objection is, that this ought to be considered as a payment for the drawer, but I think toto cœlo it is otherwise, because the indorser is no servant, nor is agent to the drawer. Suppose Benson had paid the whole 1000l. to Johnson, and Benson's name had not been struck out, and an action brought in Johnson's name against the drawer, will you say the action will not lie? Suppose after a recovery against Kennion he had run away, could Benson have had a right to come against Johnson before any satisfaction? The bill is a security for every indorsor as cestuy que trust; I think it is a plain case that Johnson has a right to recover the whole money, and when he receives it he will have received 2321. of Benson's money; defendant has no reason to complain." The authority of Johnson v. Kennion was recognised by the court of Common Pleas in Walwyn v. St. Quintin, 1 B. & P. 658. Per Eyre, C. J. "One indorser may pay the whole money due upon a bill to another indorser without satisfying the bill as between him and the acceptor and the drawer. It is every day's practice for a dishonored bill to be thrown back upon the first indorser, each indorser taking back from his immediate indorser what he had paid on account of the bill, and at the same time delivering up the bill to him, and the latter again throwing it back on his immediate indorser, till it at last arrives at the first indorser. They may arrange the matter among themselves, and any one indorser may sue the acceptor or drawer, instead of any of the preceding indorsers, striking out the names upon the bill below his own. According to the very perplexed report of the case of Johnson v. Kennion, in 2 Wils. 262., the first indorsee of a dishonored bill for 1000l. after receiving 2321. from the payee, who indorsed it to him, and getting back the bill from Baldwyn, to whom he had indorsed it for value, and to whom he returned the money, recovered the whole 1000l. against the drawer, and on a motion for a new trial, the verdict was confirmed, and very rightly. It was nothing to the drawer how the indorsers arranged the business among themselves. The point of notice supposed to be an ingredient in the case in Mr. Justice Buller's note did not arise. It was assumed that the drawer was liable. The question, as far as I can collect it,

was, whether the indorsee should recover the whole 10001. against the drawer, having received 2321. upon the bill from the first indorser, which is exactly our case, and it was held that he should, that he might recover for the first indorser the 2321. which the latter had paid, and that the defendant could have no reason to complain, for he only paid what he ought to pay. If the acceptor had paid any thing on account of the bill, it had been otherwise; so much of the bill would then have been satisfied, and at furthest the residue only could be recovered against the drawer." (See Note 57.)

tor.

But in an action by the indorsee against the acceptor of a bill, where it appeared that the plaintiff had received part of the amount from the drawer, the court of Common Pleas held that he was only entitled to recover the residue from the accepPer Wilson J. "I had no doubt on this question till the case of Johnson v. Kennion (supra) was cited; but that was done away with by what has fallen from my Lord. Indeed, that case is inaccurately reported, and I am much disposed to think, that the Chief Justice never said what he is there stated to have said. That also might have been the case of a promissory note, instead of a bill of exchange. But there my brother Gould says, that where the defendant had paid the amount of the bill, there was an end of the contract. So here, the drawer having paid part, and the acceptor the residue, the contract was at an end, the acceptor being the agent of the drawer. There, also, my brother Gould says, where the drawer of a bill has paid part, you may indorse it over for the residue. But that is for the protection of the indorsee. Here the plaintiff knew how much was due; no such special indorsement was necessary. The case then of Johnson v. Kennion does not influence the present; but even if it did, I shall think the justice of this cause much in favor of the defendant. The plaintiff has received all the money, and yet desires to be a trustee for the drawer, and receive again from the acceptor, that which the drawer has paid. Besides, though the presumption is, that the acceptor of a bill of exchange has effects of the drawer in his hands, at the time of the acceptance; yet, in fact, the effects are often sent after the acceptance." Bacon v. Searles, 1 H. Bl. 88. So, where in an action against the acceptor of a bill for 300l., the plaintiff took a verdict for the whole sum, on which the defendant filed a bill against him in the exchequer, when he admitted in his answer that he had previously received 1801. from the drawer. On motion for a new trial, Lord Mansfield said, "The verdict is certainly taken for 1801. more than was due; there was no admission of the payment at the trial, which was very wrong, and has been the occasion of filing a bill in the exchequer; therefore there ought to be a deduction of the money received, and a propor

tionable part of the interest, together with all the costs in the exchequer." Pierson v. Dunlop, Cowp. 571.

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Interest-when due.] Interest is due on all bills of exchange and promissory notes, payable at a day certain, or after demand, if payable on demand. Per Cur. Blaney v. Hendricks, 2 W. Bl. 761. As to the proof of interest on the latter, see post, Chapter XIV. It is due upon bills and notes, whether expressed to be payable in the instrument or not. Where the interest is expressly agreed to be paid, it forms part of the debt; but where it is not expressly agreed to be paid, although by the usage of trade, it is payable, yet it can only be claimed by way of damages, and the jury may allow such an amount of interest as they think fit, or may even allow nothing in case they are of opinion that the delay of payment has been occasioned by the default of the holder. Cameron v. Smith, 2 B. & A. 308, post. Ex parte Williams, 1 Rose, 401. parte Marlar, 1 Atk. 150. Ex parte Cocks, 1 Rose, 318. See post, Chapter XIV. But where the holder himself has not been in default, there appears to be no case in which interest has been refused. Laing v. Stone, 1 M. & M. 229. (n.) In an action against the maker of a promissory note above thirty years overdue, the payee having resided abroad during that time; the jury only gave damages to the amount of the principal, and the court of King's Bench refused to disturb the verdict. Per Bayley J. "I am of opinion in this case, that the question of interest was entirely for the decision of the jury, and I think they have decided rightly. Interest upon a bill of exchange or promissory note is no part of the debt, and it has been decided in the case of bankruptcy, that interest on such securities cannot be added to the principal to make good the petitioning creditor's debt. It has been clearly decided, that the interest is the damage for the detention of the debt." Abbott C. J. added, that during the time the plaintiff was an alien enemy, it would have been illegal to pay him the debt, and that for that interval therefore damages could not legally have been given. Du Belloix v. Lord Waterpark, 1 D. & R. 16. Bayley, 281. S. C. and see Laing v. Stone, 1 M. & M. 229. (n.) So, where in an action against the executrix of the maker of two notes, it appeared that the defendant had tendered the money to the holder, but that the holder having mislaid the notes, the money was not paid, Lord Ellenborough said, "I think interest ought to stop from the offer to pay. Interest, properly speaking, is a compensation agreed to be paid for the use of money forborne by the lender at the borrower's request. It is more frequently recovered in the shape of damages for money improperly retained by the debtor, contrary to the request of the creditor. But in neither of these ways can interest continue to run after an offer to pay the principal upon a reasonable

condition, which the party to receive it refuses, or is not in a situation to fulfil." Verdict for principal and interest down to the tender. Dent v. Dunn, 3 Campb. 297. So where there is no person in esse entitled to receive the amount of the bill, interest is not payable for that period. Thus, where a bill of exchange was indorsed by an agent to his principal, the latter having died before the indorsement, which was unknown to the agent, it was held that the administrator, who sued the acceptor of the bill, was only entitled to recover interest from the time of the fresh demand by him. Murray v. the East India Company, 5 B. & A. 204.

Where goods have been sold to be paid for by a bill which has not been given, the vendor is entitled to interest from the time when the bill, if given, would have become due. Middleton v. Gill, 4 Taunt. 298. Porter v. Palsgrave, 2 Campb. 472. Lowndes v. Collens, 17 Ves. 27.

Interest for what period payable.] Where a bill or note specifies that interest shall be paid, it is payable from the date; without such words, from the time when the bill or note becomes due. Kennerley v. Nash, 1 Stark. 452. Orr v. Churchill, 1 H. Bl. 227. Doman v. Dibdin, Ry. & Moo. 381. Upon a bill or note payable on demand, interest is given from the time of the demand proved. Blaney v. Hendricks, 2 W. Bl. 761, ante, p. 309. Cotton v. Horsemanden, Pr. Reg. 357. Upton v. Lord Ferrers, 5 Ves. 803. But where by the terms of a note, the maker undertook to pay legal interest on demand, Lord Ellenborough held that this must mean from the date of the note. Hopper v. Richmond, 1 Stark. 508.

As against the acceptor of a bill, or the maker of a note payable at a certain time after date, the interest begins to run without any previous demand, from the day of date, or from the day of the bill or note becoming due as already stated, vide supra; but with regard to the drawer of a bill it has been held that he is not liable to pay interest until he receives notice of dishonor. Walker v. Barnes, 5 Taunt. 240. 1 Marsh. 36. S. C. ante, p. 73. Upon this case a doubt has been expressed by a writer of high authority whether the non-payment by the drawee was not a breach of the drawer's contract, and whether the holder was not entitled to interest for not receiving on the day when the bill became payable, what the defendant undertook he should receive on that day. It may be observed, however, continues that learned person, in support of this decision, that the constant form in assumpsit against a drawer or indorser, makes him promise only for the amount of the money mentioned in the bill. It is silent as to interest. It is, however, silent also, as to expences. Bayley, 280.

With regard to the time up to which interest is to be computed, it is now settled that it is to be carried down to the