In New York, the damages in cases of protest for non-acceptance, are by statute fixed at the same rate as for non-payment. This was the rule before the statute.*

When a bill is drawn in Alabama, payable at a place without its limits, neither interest nor damages can be recovered of the acceptor upon its dishonor without proving the law of the place of payment as to such damages and interest. But it is no objection that interest and damages for non-payment are included in the same entry of judgment without specifying the amount of each separately.†

Some points still remain to be noticed which have a common application to bills and notes. We shall have occasion hereafter to consider the principles which govern the allowance of interest in a separate place: it is sufficient to say here, that the general rule is, that though the law does not always imply a contract on the part of the debtor to pay interest on the sum he owes, still, in the case of a bill or note, interest is usually recoverable from the time it becomes due; and a bill or note, payable at a certain day, carries interest from that day, unless the non-payment at the appointed time was occasioned by the negligence of the holder.§

In France the rule appears different. On the protest for non-acceptance, the obligation of the parties indebted, says Pardessus, Cours de Droit Comercial, Part II., Tit. IV., Ch. IV., Sect. 7, vol. 2, 424, is either to pay, to deposit the amount, or to give security. "Lorsque il (la personne poursuivie) donne une caution jugée suffisante, ou qu'il consigne, le porteur n'a plus jusqu' a l'echeance de droits a exercer ni contre lui ni contre les autres signataires de la lettre pour exiger qu'ils donnent un semblable cautionnement, ou qu'ils remboursent, parce que l'obligation des co-debiteurs étant alternative de payer, ou de donner caution, l'un d'eux etait libre de choisir le mode qui leur convenoit pour acquitter la dette de tous."

And there are traces of some similar or analogous custom in England. In Bright vs. Purrier, the defendant offered to prove a commercial usage not to pay till protest for payment; and in Buller's Nisi Prius, page 266, it is said: "When the bill is returned protested, the party that draws the bill is obliged to answer the money and damages, or to give security to answer the same beyond sea, within double the time the first bill ran for."

*See Reviser's notes to the 22d Section, 1 R. S., 771. The point was expressly decided in Weldon et al. vs. Buck et al., 4 J. R., 144; and the same is the rule in England.

+ Dickinson vs. Branch Bank of Mobile, 12 Ala., 54.

Chitty on Bills, Chap. VI., 662. De Haviland vs. Bowerbank, 2 Camp., 50; De Bernales vs. Fuller, 2 id., 426; Walker vs. Constable, 1 Bos. & Pull., 807.

Robinson vs. Bland, 2 Burr., 1077; Lang vs. Stone, 2 Man. & Ry., 16; Bann v8. Dalzell, Mood. & M. 228; Greenleaf vs. Kellog, 2 Mass. R., 568; Cooley vs. Rose, 3 Mass. R., 221; Hastings vs. Wiswall, 8 Mass., 455; Foden vs. Sharp, 4 J. R., 1 188; Slacum v8. Pomery, 6 Cranch, 221; Cannon vs. Beggs, 1 McCord, 871.

We shall have occasion hereafter to see that the English courts are less disposed to allow interest than those of this country; and in accordance with this disposition, it appears that there, when interest is not made payable by the bill itself, the jury are not bound to give it, but it rests in their discretion to award it, if they are of opinion that the delay of payment has not been occasioned by the fault of the holder. And so in a late case they refused it where a promissory note had been overdue thirty years; and the court, on motion, would not increase the verdict by giving it.*

A party who guaranties the due payment of a bill of exchange by the acceptor, is liable for interest upon it if it be not paid when due.†

Some other decisions have been made upon the subject of the amount of recovery, which it may be proper to notice. An endorser who is sued on his endorsement, and subjected to costs, cannot recover those costs against the maker. He can only have the amount of the note and interest; "because," says the Supreme Court of New York, "if the endorser of a note be duly fixed, he ought to pay it without waiting to be sued; and if he finds it more convenient to delay taking up the note until he is prosecuted to judgment and execution, the drawer ought not to pay for that convenience. The mere fact of drawing the note does not imply a promise to save the payee harmless from all costs and charges that he may be subjected to as endorser. There must be a special promise to save harmless before the payee can call upon the drawer for costs accrued by the default of the payee (endorser) himself." In a suit against the endorser the fees of protest are a proper charge.§ And an endorser who has paid the note, can, it seems, recover the costs of protest against the maker.

* *

On the same principle it has been held in England,

*Du Belloix vs. Lord Waterpark, 1 Dow. & Ry., 16; Bann vs. Dalzell, Mood. & M., 228; Arnott vs. Redfern, 3 Bing., 353; Calton vs. Bragg, 15 East, 223; 8 Bing., 559; Higgins vs. Sargent, 2 Barn. & Cres., 341; Page vs. Newman, 9 Barn. & Cres., 378; 6 Bing., 380. See, also, Chitty on Bills, ch. vi., 662, et seq., and many cases therein cited, and Starkie on Evidence, Tit. Bills of Exchange, Damages.

+ Ackerman vs. Ehrensperger, 16 M. & Wels., 99.

Sampson vs. Griffin, 9 J. R., 181. See, also, Steele vs. Sawyer, 7 McCord, 459, and Richardson vs. Parnell, 1 McCord, 192, to the same point as Sampson vs. Griffin.

§ Merritt vs. Benton, 10 Wend., 116.

| Morgan vs. Reintzel, 7 Cranch, 273.

where an accommodation acceptor was sued by a bona fide holder, that as he ought to have paid it when demanded he could not recover the costs against the party who had improperly endorsed it to the holder.* So also, the acceptor of a bill with funds who has failed to pay, is not liable for the costs of a suit against the drawer.† And the endorser of a bill is not liable for the costs of a suit by the holder against the acceptor, nor for commissions paid on the collection of the money. In like manner the endorser of a regular bill who has been sued by an endorsee, is not entitled to recover from the acceptor his costs in such action.§ But a party who makes or endorses or accepts an accommodation bill or note is regarded as a surety, and can charge the party for whose benefit his signature is given, with the costs of a suit for the collection of such a note or bill if he be compelled to pay it. So the accommodation acceptor of a bill who is sued, can recover his costs of the drawer.]

And so it has been held between the accommodation endorser of a note and the maker.T

* Bleaden vs. Charles, 7 Bing., 618. See this case commented on in Asprey vs. Levy, 16 M. & W., 851. Roach vs. Thompson, 1 M. & M., 487.

+ Barnwell vs. Mitchell, 8 Conn., 101.

Bangor Bank vs. Hook, 5 Greenleaf, 174.

§ Dawson vs. Morgan, 9 B. & C., 618.

| Jones vs. Brooke, 4 Taunt., 764.

Hubbly vs. Brown, 16 J. R., 70. Baker vs. Martin Adm'x, 3 Barb. S. C. R., 684; and see, post, of Principal and Surety.

CHAPTER IX.

THE MEASURE OF DAMAGES IN ACTIONS UPON POLICIES OF INSURANCE.

Marine Insurance-partial loss-total loss-general average-the principle of arbitrary remuneration-Fire Insurance.

THE contract of insurance is one of indemnity; in other words, the insurer undertakes to make good to the insured the damage which, under certain circumstances, he may sustain. This subject, therefore, forms a necessary part of a treatise on the law of damages, while at the same time, as it has, like the matter of the last chapter, been fully treated of in the separate works devoted to this particular branch of jurisprudence, it would be improper here to do more than give a general outline of the subject.

Marine insurance is defined to be a "contract of indemnity in which the insurer, in consideration of the payment of a certain premium, agrees to make good to the assured all losses, not exceeding a certain amount, that may happen to the subject insured from the risks enumerated or implied in the policy, during a certain voyage or period of time."*

In England this contract retains more nearly its original and proper character as a contract of indemnity measured by the actual loss; but in the United States it has been very materially modified by the introduction of various arbitrary rules; among which the most prominent are the deduction of "one third new for old,"+ the doctrine of abandonment for constructive total loss, and the principles adopted in the settlement of general averages. There is no branch of the law in which the rule of

* Duer on Marine Insurance, vol. i., 58.

This is, however, common to the English system.

compensation has been made so much to yield to that arbitrary remuneration, if it may be so called, in other words, the principle analogous to that of the Lex Aquilia of the Roman law, by which, instead of an inquiry into the exact circumstances of the particular case, a fixed rate or proportion is determined, by which the recovery in all instances is governed.

The losses for which the insurer becomes liable fall under one of these three heads:

Partial Loss;

Total loss; or

General Average.

Partial loss is, as its name implies, a partial destruction of the thing insured.

A Total loss occurs where the thing insured is physically destroyed or rendered valueless; or where, under the doctrine of constructive losses, the deterioration is so great as to authorize the insurer to abandon and demand payment as for an actual physical total loss.

General average, or contribution in general average, is that sum which on any sacrifice of a part of the interests at risk for the joint benefit of all, becomes due from the other parties to the adventure to make up for the sacrifice.

With these broad lines of division in view, it will not be difficult to understand to what extent the contract of insurance is one of indemnity, and how far it has departed from its original signification; but we should first notice the exceptions in the contract itself.

The American policies on vessels generally contain a declaration, that "no partial loss, or particular average, shall in any case be paid unless amounting to five per cent.," or some similar clause; and the cargo policies have an analogous provision,* defining the extent of the underwriters liability. By

* The following is the clause referred to in the text as it exists in the New York policies: MEMORANDUM.-It is agreed, that bar, bundle, rod, hoop and sheet iron, wire of all kinds, tin plates, steel, madder, sumac, wickerware, and willow, manufactured or otherwise, salt, grain of all kinds, tobacco, indian meal, fruits (whether preserved or otherwise), cheese, dry fish, vegetables and roots, rags, hempen yarn, bags, cotton bagging, and other articles used for bags or bagging, pleasure carriages, household furniture, skins and hides, musical instruments, looking-glasses, and all other articles that are perishable in their own nature, are warranted by the assured free from average, unless general; hemp, tobacco stems, matting, and cassia, except in boxes, free from