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Morris v. Tarin.

Da/mages on protested bill.

Where a bill of exchange had been protested for non-acceptance, and one of the drawers voluntarily paid the principal, and twenty per cent, damages, without waiting for a protest for non-payment, which, however, was subsequently made, it was held, that the drawer could not recover back the money paid as damages.

A Case was made in this cause for the opinion of the court, stating, that the defendant bought a bill of exchange drawn by Benjamin Harrison & Co. upon a house in France, which was presented to the drawee, in February 1784, and protested for non-acceptance. Before it was presented, however, the drawee had become insolvent, and an arret was issued by the French government, prohibiting the institution of suits against him for a certain time. When the bill became due (the arret still continuing in force), it was again presented, and, on the 5th of June 1784, protested for non-payment. Without any knowledge of the second protest, and without any suit or compulsion of law, the plaintiff, who was one of the partners of the company that drew the bill, repaid the defendant the principal, interest and charges, with twenty per cent, damages. But, afterwards, conceiving that he had paid the twenty per cent, damages in his own wrong, he brought this action to recover back the amount.

* Sergeant, for the defendant,

contended, generally, that, an action lay against the drawer of a bill of exchange upon a protest for non-acceptance only. Cun. B. of Ex. 77, 83, 85; Bull. N. P. 269; Doug. 55. But that, at any rate, after a voluntary and deliberate payment, the plaintiff, in an action for money had and received, ought not to recover what the defendant might fairly accept.

Wilson, for the plaintiff,

denied that the cases from Cunningham were *153in point; disputed the authority of the case in Butter ; and asserted that tlie decision in Douglas, being posterior to the revolution, was not law here. He contended, that the contract of the drawer was not that his bill should be accepted, but that it should be paidthat there was no breach until after the day of payment; that the protest must then be made, or, at least, within the days of grace, to entitle the holder to recover from the drawer ; Ld. Raym. 743; and that the act of 12 Wm. III., c. 70, which gives the holder twenty per. cent, damages, mentions only bills returned unpaid, and not unaccepted. He urged strongly that the readiness of the plaintiff in taking up his bills, should operate in favor of the present action, which required only an equitable right to maintain it, and which it would, therefore, be incongruous to say, was more favorable for him, who put his creditor to the vexation and delay of a lawsuit, than to the man of honor and integrity, who, in his eagerness to do justice, had erroneously paid more than he was bound to pay. And he added, that the twenty per cent, damages, was imposed as a penalty, and no consideration paid for it by the purchaser of a bill, who, therefore, had no right in conscience to retain it.

The court held the case under advisement, until the 21st of November, when the President delivered their opinion as follows :

Shippen, President.

This is an action for money had and received to the plaintiff’s use. The facts are, that a bill of exchange was drawn on a house in France, by Benjamin Harrison & Company, of which company the plaintiff was one, in favor of the defendant, or some other person who indorsed the bill to the defendant. The bill being presented to the drawee, he refused to accept it, and a protest was made for non-acceptance. The bill, with the protest, was sent back, and the plaintiff being applied to for payment, voluntarily paid the defendant both principal and damages. This action is brought on an implied assumpsit, to recover back part of the money, to wit, the damages, as paid by mistake ; the plaintiff contending, that to compel him to the payment of damages, there ought not only to have been a protest for non-acceptance, but likewise a protest for non-payment; and that having paid those damages, when by law he was not obliged to pay them, he ought in justice to recover the money back.

This is a liberal kind of action, and will lie in all cases where by the ties of natural justice and equity the defendant ought to refund the money paid to him ; but where the party might with a good conscience receive the money, and there was no deceit or unfair practice *in obtaining it, although it was money which the party could not recover by law, this [*149 aetion has never been so. far extended as to enable the party who paid the money voluntarily, to recover it back again, (a)The case of Louirey v. Bourdieu, in Doug. 452, and that of Farmer v. Arundel, in 2 W. Black. 825, are full to this point.

In the present case, the defendant had presented the bill to- the drawee for acceptance, and, on refusal, got it protested. Shortly after, and before the day of payment, an arrit from the king of France prohibits the creditors of the drawee from suing him ; upon which, the bill was immediately *154sent back, and Mr. Morris, without waiting for a protest for non-payment, voluntarily takes up the bill and pays the damages. A protest for nonpayment, however, appears to have been made in France, before the money was paid by Mr. Morris, although he did not know it. The defendant had acted with fairness, and lain out of his money, and might with a good conscience receive the legal damages.

The point of law principally agitated in this cause, whether a protest for non-acceptance only, is sufficient to recover the money from the drawer, is not material to be determined in this action, because, as it is voluntarily paid, and the defendant might, consistent with justice, receive it, whether that point of law is for or against the plaintiff, we think, he cannot recover the money back, (a)

Judgment for the defendant.

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