#### Cyrus Stowe & John Whittier *v.*The Bank of Cape Fear.

In an action by the holders of a bill of exchange, against a bank for not giving the drawer notice of a non-payment by the acceptor, the fact of the drawer’s insolvency, may be estimated by the jury, in assessing the amount of damages.

Assumpsit, and upon the general issue pleaded, the case was as follows:

The plaintiffs had a bill of exchange drawn by a person resident in Wilmington, upon a house in Fayetteville, which they sent to the Branch Bank of Cape Fear at the *409latter place, for collection. At the time the bill was due, the parties to it wore insolvent, and the office at Fayetteville neglected to notify the drawer of its nonpayment.

They plaintiffs insisted that they had a right to recover the amount of the bill; but his Honor, Judge Norwood, informed the jury, that in estimating the damages, of the plaintiffs, they ought to take into consideration the insolvency of the parties to it.

A verdict was returned for the plaintiffs with nominal damages, and they appealed.

*Gaston,*for the plaintiffs,

cited *Smedes*v. *Bank of JJtica, (QQJofin. R.*372.) *Chitty on Bills,pages*209 *to*211 & 287.

*Badger, contra.*

Daniel, Judge.

The plaintiffs left with the bank a bill of exchange, for collection when it should become due, and if it should not be paid at maturity, to notify the drawer thereof. This action is brought to recover damages for a breach of promise, in neglecting to demand payment, and giving notice of non-payment to the drawer; by means of which neglect, the latter was discharged from his liability. There is no doubt but that the bank is liable to the plaintiffs as any other agent or bailee would have been, but it is liable in no other way. The plaintiffs are entitled to recover such damages as "they have sustained by the defendant’s breach of promise. The amount of the bill of exchange, is not the criterion to govern the jury in assessing them, unless it appears that the plaintiffs had lost that amount of money, by the misconduct of the defendant. The evidence, that the drawer was insolvent, was proper to be left to the jury. If it was probable that the drawer would again become solvent, by any chances or means whatever, the plaintiffs should have offered such testimony to the jury for the purpose of enhancing the damages. I think the judge was correct in his charge, and the case was properly decided. The judgment below must be affirmed.

*410Ruffin, Judge

There being no special contract proved, it must be taken to be such an one as the law jnfet,g |:j)e circumstances, which seems reasonably to be, to pay to the plaintiffs the loss arising from the failure of the defendant to perform any act agreed to be done. It is the ordinary case of an agency undertaken, and the actual damage is the measure common to this and other cases. Policy requires a different rule in certain cases of public employments, because of the opportunities on the one part for the concealment of the misfeasance, and the difficulty of obtaining proof of the actual fact, on the other. Hence arises the liability of carriers, and hence the statute gives debt against the sheriff for an escape. But those reasons do not extend to an undertaking of this sort. It may be more than ordinarily difficult for the jury to ascertain the loss, but that does not authorise the court arbitrarily totixit in all cases at the greatest possible amount. And the difficulty here is not greater than in many other cases of like agencies ; as, if an attorney neglect to sue an insolvent ■party to a note. It is not like the contract of an endorser or drawer» of a bill ; that is, to pay the debt if notice be given ; if no notice, he pays nothing. But Í believe this has not been applied beyond the parties ; and as to them, it is founded on the special agreement. No precedent of such an action, lias been cited or found by the court, and we cartnot make one without altering what has been *generally*considered the established law of *principal*and agent. *It'*the bank be liable at all, we think the Superior Court adopted the proper rule for assessing the damages, and the judgment is affirmed.

Per Curiam. — Judgment affirmed.