Wood v. Watson , 53 Me. 300 ( 1865 )

Appleton, C. J.

The protest of the notary shows a demand upon the drawee and notice to the indorsers. The defendant could not have been misled by the notice received: He must have understood to what bill reference was had. This is all the law requires.

The more important question relates to the damages to which the plaintiffs may be entitled.

Damages given on foreign bills of exchange, for non-payment, are as much part of the contract as interest. Bank of U. S. v. U. S., 2 How., (U. S.,) 711, 737. The percentage allowed by statute on the protest of a foreign bill is a commutation for interest, damage and reéxchange. It is a statutory liquidation of damages, by which the parties are to be governed. Lloyd v. McGarr, 3 Barr, 482.

Now, mercantile usage has established the damages on bills on London, in case of dishonor, in Massachusetts, as determined in Grimshaw v. Bender, 6 Mass., 157, and, in this State, in Snow v. Goodrich, 14 Maine, 235, at ten percent., instead of reexchange. This usage forms a part of the law of the State. It had been of so long continuance, that, in 1809, when the judgment of the Court in Grimshaw v. Bender, was pronounced, Mr. Ch. Justice Paesons said that its origin could not be ascertained. It must, therefore, be deemed a part of the» law merchant, and as obligatory as any portion of the common law, until it shall be modified or changed by the Legislature.

Whether- the rule of damages is established by statute or by a long continued usage, having the force of law, it is- to be deemed a part of the contract of indorsement. The rule referred to, not having been altered by the Legislature, must be regarded as remaining in full force. It is not for the Court to change the law, whenever- a monetary crisis occurs.

The rule may operate hardly in some instances, but it is for the party to obvíate this by a special contract, fixing the damages, in case of dishonor, at a specified rate, or for the Legislature to establish a new rule which in their judgment shall be more equitable. It would be an act of legislation for us to intervene by changing the existing law on the subject. Defendant defaulted.

CUTTING, Kent, Dicjkekson and Daneobth, JJ., concurred.