discharged by alteration of the bill, &c., or by the laches of the holder, the plt. will not be allowed to go into evidence of the common counts, Long v. Moore, 3 Esp. Rep. 155; and, where a promissory note has been given for money due from the deft. to the plt., who declares thereon, together with the money counts, he must prove the note to have been destroyed before he can have recourse to the money counts, if it appear that the money so claimed was that for which the note was given: Dangerfield v. Wilby, 4 Esp. Rep. 159; Hadwen v. Mendisabel, 2 C. & P., C. N. P. 20; ante, 96-7. The above rule does not, in general, apply when there is no privity between the plt. and deft., as between the endorsee and the acceptor of a bill, and the endorsee and the maker of a note, Johnson v. Collings, 1 East, 98, Barlow v. Bishop, ib. 434-5, Whitwell v. Bennett, 3 B. & P. 559, Houle v. Baxter, 3 East, 177; between whom, if the plt. cannot succeed on the count of the bill, and there be no express promise to pay the amount, the common counts are in general of no avail: Waynam v. Bend, 1 Camp. 175; Chit. B. 364. And a person who becomes party to a bill or note, as a mere surety, is not liable under the common counts: Wells v. Girling, 3 J. B. Moore, 79.

The instrument itself will, it is said, when duly stamped, in certain cases, be evidence in support of the counts for money lent, paid, had, and received, and that founded on an actual or supposed account stated, Wells v. Girling, 1 Gow, Rep. 22, 3 J. B. Moore, 79, s. c.; but, according to Waynam v. Bend, 1 Camp. 175, such instrument is only evidence under the money counts, as between the original parties to it. Thus, a bill is prima-facie evidence of money lent by the payee to the drawer, and a note, of money lent by the payee to the maker, Clarke v. Martin, 1 Ld. Raym. 758, 1 Burr. 373; and an endorsement is primafacie evidence of money lent by the endorsee to his immediate endorser: Bayl. 164, 286.

A bill or note is prima-facie evidence of money paid by the holder to the use of the drawer of the one and maker of the other; and a bill, when accepted, is evidence of money paid by the holder to the use of the acceptor; and, if an endorser has taken up a bill, he may, having failed in his first count against the acceptor, on account of a variance, recover under the count for money paid: Pounal v. Ferrand, 6 B. & C. 439; Le Sage v. Johnson, Forr. Rep. 23; Bayl. 164, s. c.; sed vide Gibson v. Minet, 1 H. Bl. 602; Howle v. Baxter, 3 East, 177; Cowley v. Dunlop, 7 T. R. 572; Buckler v. Bultevant, 3 East, 72; Simmonds v. Parminter, 1 Wils. 186; Chit. B. 365. If the drawee, without having effects of the drawer in his [*279] hands, accept and pay the bill without having it protested, he may recover the amount in an action for money paid, laid out, and expended, to the use of the drawer: Smith v. Nissen, 1 T. R. 269; Cowley v. Dunlop, 7 T. R. 576. But, if he has not actually paid the bill in money, and has only given security for it, or he has sustained any costs or damage, he cannot recover, unless the declaration be special: 3 East, 169; 8 T. R. 610; 7 T. R. 204.

A bill, as well as a note, Vin. Ab. tit. Evidence, A. b. 36, Ford v. Hopkins, 1 Salk. 283, is prima-facie evidence of money had and received by the drawer or maker, to the use of the holder, Bayl. 487, 4 ed.,

cites Grant v. Vaughan, 3 Burr. 1516; sed vide Waynam v. Bend, 1 Camp. 175. And an acceptance is evidence of money had and received by the acceptor to the use of the drawer: Thompson v. Morgan, 3 Camp. 101; Bayl. 163. A bill will also be evidence under the count for money had and received, in an action by the payee, who is also the drawer, against the acceptor: ib. It has been supposed, that, in an action by an endorsee against an acceptor, the bill may be given in evidence under the count for money had and received: 2 Phil. Ev. 50; sed vide Waynam v. Bend, 1 Camp. 175; Enon v. Russell, 4 M. & S. 507; Wells v. Girling, Gow, 22; 3 Moore, 79, s. c.; Chit. B. 366.

A bill will be evidence under the account stated in an action by the payee, who is also drawer, or by the drawer against the acceptor: p. Abbott, C. J., Rhodes v. Gent, 5 B. & A. 245. It has been said, an acceptance is evidence of an account stated by the acceptor with the holder of the bill: Israel v. Douglas, 1 H. Bla. 239; sed vide Taylor v. Higgins, 3 East, 169; Whitwell v. Bennett, 3 B. & P. 559. An admission of the deft. may be proved as evidence of an account stated under that count: Highmore v. Primrose, 5 M. & S. 65; Wade v. Beasley, 4 Esp. Rep. 7.

Evidence in Answer to Defence, of defect of stamp, incapacity to contract, illegal consideration, want of consideration, improper presentment, laches of holder, giving time to parties, plt. an outlaw, bankruptcy, award, and satisfaction, &c. The answers which plt. should be prepared to show, in making out his case against the intended defence, will be found interspersed amongst the various defences which it will be hereafter seen deft. may set up, post. It will be there found, that deft. must, in some cases, take some preliminary steps before he can compel plt. to adduce evidence under this head: such as his giving plt. a notice of the intended defence, &c.

Damages.] Plt. may, in most cases, recover, 1st. the principal sum due; 2d. interest; 3d. all incidental expenses occasioned by the nonacceptance or non-payment, re-exchange, costs of his dishonour, provision, &c.

With respect to the principal Sum, plt. will, in general, be entitled to recover to its full amount. A partial failure of the consideration will, in general, be no defence of the quantum to be deducted on that account, as it is matter, not of definite computation, but of unliquidated damages, post. Where the holder or endorsee of an accommodation-bill takes it, knowing it to be such, and advances on it but part of the amount, he can only recover as much as he has really paid, Wiffen v. Roberts, 1 Esp. Rep. 261; and, where the deft. accepted a bill of £415, to accommodate P. and Co., P. and Co. endorsed it to their bankers for value, and became bankrupts, the bankers knew it to be an accommodation acceptance, and their demand against P. and Co. was £205 only, in action by them upon this acceptance, it was held, they could only recover the £205: Jones v. Hibbert, 2 Stark. 304. If, in an action by the endorsee against the drawer

or acceptor, he has received any part from the acceptor or [*280] drawer, he can only recover the balance, as it operates so far

as a satisfaction, 1 H. B. 88; but, if the part-payment be received from the first endorser, he may recover the whole amount against

the drawer or acceptor: Walwyn v. St. Quintin, 1 B. & P. 638; 2 Wils. 262; 1 Rose, 10. However, where a bill is given for money really due from the drawee to the drawer, or is drawn in the regular course of business, in such case the endorsee, though he has not given to the endorser the full amount of the bill, yet may recover the whole, and be the holder of the overplus above the sum he has really paid to the use of the endorser," p. Ld. Kenyon. But this rule only applies where there is some person to receive the overplus: Pierson v. Dulop, Cowp. 571.

As to bills payable by instalments, post, 281.

Interest.] As to when interest is recoverable, it is so in an action on a bill or note, as a debt, when it is stipulated for in the bill, and as damages when not specified, 1 Atk. 151; Cameron v. Smith, 2 B. & A. 305; and, if the delay of payment arose from the holder's neglect, it may be withheld: p. Bailey, J., ib., 308. And, when the note had been overdue thirty years, the jury withheld it, and the court, on motion, could not increase the verdict by giving it: De Belloni v. Ld. Waterpark, 1 D. & R. 16; and, after a tender, it has in some cases been withheld: Dent v. Dunn, 2 Camp. 296.

The plt. must produce the bill to entitle him to recover it: Fryer v. Broom, R. & M. 145. But plt. need not prove a protest to entitle him to interest, whether against the acceptor or maker of the bill or note, or the drawer or endorsers: 5 Taunt. 240; 2 B. & A. 305, 696. Nor does it seem essential that he should have declared on it: Paine v. Pritchard, 2 C. & P. 558. Ard he may recover under a particular, merely stating the action to be brought "to recover the amount of a note, &c., of £100:" Blake v. Lawrence, 4 Esp. Rep. 147. The interest is to be computed in general from the time the bill or note would regularly have been payable: Bayl. 279. Thus, if the hill or note be payable after date, an action against the acceptor of the bill, and the maker of a note, payable at a given time, after date or sight, interest is recoverable from the day on which they became due, without proof of any demand: 3 Ves. 134; 3 Bing. 353. So, upon a bill or note payable on presentment, interest must be computed from the presentment: Bayl. 279; Blaney v. Bradley, Bla. 761. And, if, at the time, a bill fall due, there is no person to recover on it, as where the holder dies intestate, and administration be not taken out, the acceptor will be liable only from the time the administrator demands payment of the principal, Murray v. E. I. Comp. 5 B. & A. 204; but interest is payable from the date of the bill or note, if it appear to have been for money lent, Bayl. 279; or it promises to pay on demand, ib.. Weston v. Tomlinson, p. Abbott, C. J., cited Chit. B. 422; or it specify a sum payable after date," with lawful interest for the same:" R. & M. 381; Hennesley v. Nash, 1 Stark. 452. Where the action is against the drawer of a foreign bill, dishonoured for non-acceptance here, and where plt. is allowed a per-centage, as of 10 per cent., he is only entitled to interest from the day the bill ought to have been paid, Gaul v. M'Intosh, 3 Camp. 51; but where there is no such allowance, the plt. is entitled to interest from the day the bill was dishonoured for non-acceptance: Harrison v. Dickson, ib., n.

As to the Rate of Interest.] Five per cent. is usually allowed in this country, 5 Ves. 803; but the jury may allow either four or five, according to their judgment of the value of money, p. Bailey, J., 2 B. & A. 308; and, in the case of a foreign bill, it may be regulated by the rate of interest established in the country where the bill is drawn: so, upon a bill drawn in Bermuda on England, which ought to have been paid in England, the plt. recovered 74 per cent. interest, such being the [*281] rate of *interest at Bermuda, Congan v. Banks, cited Chil. B. 433; but the acceptor can never be liable to pay more than the legal rate of interest in the place where the bill is due: Worsley v. Crawford, 2 Camp. 446. When a bill is payable by instalments, the plt. is only entitled to recover the instalments due at the time of the trial, and the interest thereon, Ashford v. Hand, Andr. 370; Robinson v. Bland, 2 Burr. 1085; 1 H. B. 547 (contra, Beckwith v. Nott, Cro. J. 505), unless it contain a clause that they shall not become due; and the interest is to be calculated on the whole sum remaining unpaid, and not on the respective instalments, when they would become payable: Blake v. Lawrence, 4 Esp.Rep. 147. Interest ceases in general at the time when final judgment may be signed: Bayl. 279; Bur. 1077. Interest was refused beyond the time of verdict, even where plt. had been unjustly delayed more than two years: Jarold v. Rowe, 8 Price, 382. Interest has been allowed in trover for bills from the date of the final judgment, upon all such as had been received before the judgment, and upon all such as had been received afterwards, from the time. of the receipt, Atkins v. Wheeler, 2 N. R. 205; but it was held at N. P., that interest could not be recovered after the time of conversion: Mercer v. Jones, 3 Camp. 477.

Expenses of Dishonour, Protest, &c.] The expense incurred by the holder of a bill, at the time of its dishonour, is the charge for noting and protesting; but the antecedent parties are liable for re-exchange, or the usual damages, postage, &c.: Bayl. 282; De Tastet v. Baring, 11 East, 289.

Re-exchange.] When a foreign bill is dishonoured in the country in which it was payable, and returned to that in which it was drawn, and there taken up by the payee or other party, he is entitled to recover reexchange. But plt. must prove that there was at the time a course of re-exchange between the countries through which the bill has been negotiated, De Tastet v. Baring, 11 East, 269; as well as the amount of such re-exchange, Cullen, 172. But it is not necessary for him to prove that he has actually paid it, ib.; and plt. may recover against the drawer the whole amount of the re-exchange occasioned by a circuitous mode of returning the bill through the various countries in which it has been negotiated, and different hands upon each return; and that though the nonpayment of the bill arose from a law of the country on which it was drawn, passed to prohibit such payment: Mellish v. Simeon, 2 H. B. 378. Plt., when holder of a note, by which he has the option of being paid either at the place where it was made, or, "according to the course of exchange, may insist upon being paid according to such course of exchange as exists between them when the note became due:" Bayl. 283; Pollard v. Herries, 3 B. & P. 335. Though, between this country and India, there appears to be no distinct course of re-exchange, yet, "on

the return of a bill drawn here for the payment of pagodas in the East Indies, the practice is to allow for the sum payable by the bill, interest, and all incidental charges, after the rate of 10s. for each pagoda, and five per cent. thereon, from the expiration of 30 days after notice of the bill's dishonour:" Bay. 284; Auriol v. Thomas, 2 T. R. 52. An acceptor is never liable for re-exchange: Napier v. Shneider, 12 East, 420; Woolsey v. Crawford, 2 Camp. 445. Upon the subject of damages on the protest and dishonour of a bill, where it appeared that a bill drawn in Demerara had been sent back dishonoured and protested, and the plt. claimed damages to the amount of £25 per cent., which was considered to be the amount of the loss, but, as the bill for £500 had been sent back dishonoured, protested for the whole, as £400 had been paid on it, and that the usual practice, in such cases, was to retain the dishonoured bill here, and send a protest to Demerara, where, upon the arrival of the protest, security was demanded *and given by the draw- [*282] ers, and that the whole of the loss from the dishonour was not

incurred, unless the bill in the result was not paid, only £25 damages were allowed on the £100 which had not been paid: Laing v. Barclay and others, 3 Stark. 42.

DRAWER, WHO IS ALSO PAYEE, AGAINST ACCEPtor.

Proof of Bill.] The bill must be produced and proved, as directed ante, 274 to 276.

Proof of Acceptance.] The deft.'s acceptance of the bill must be proved. With respect to what is a sufficient acceptance, by 1 and 2 G. 4, c. 78, s. 2, every acceptance of an inland bill must be in writing upon the bill, or, if there be several parts of the bill, on one of such parts. An inland bill cannot be protested for non-payment, unless it has been accepted in writing: 8 and 9 W. 3, c. 17, s. 1.

In the case of foreign bills, a valid acceptance may be by parol, or by writing on the bill itself, or on another paper, as by letter, undertaking to accept bills already drawn: Clarke v. Cock, 4 East, 71; ex. p. Dyer, 6 Ves. 9. A letter from the drawees of a foreign bill here, to the drawer in America, stating that, their prospect of security being better, they would accept, or certainly pay the bill, is a valid acceptance, though they had previously refused to accept the bill, and again refused payment of it, when presented for payment, and though the letter was not received in America till after the bill became due: Wynne v. Raikes, 5 East, 514. A collateral writing, saying that a foreign bill "shall meet with due honour," Clarke v. Cock, 4 East, 57, 1 Atk. 621, Wynne v. Raikes, 5 East, 520, " or that the holder may rest satisfied as to payment," 1 Str. 648, Wynne v. Raikes, 5 East, 514, Clarke v. Cock, 4 ib., 57, or a direction by the drawer to a third party to pay the sum in the bill out of a particular fund, B. N. P. 270, it is a sufficient acceptance. So, transcribing the word "accepted," "presented," "seen," or even the day of the month, Comb. 401, amounts to an acceptance of a foreign bill, 3 Burr. 1663, 2 Atk. 611; and it is sufficient acceptance if the party write "accepted, C. N.," 3 Moo. 91, 5 East, 520, Pierson v. Dunlop, Cowp. 571; or the words "not accepted" will, in some instances amount to an acceptance: as, where it is accompanied