#### Denston *against*Henderson and Cairns.

*A bill*of exchange was drawn in the Unites States, upon a . of London, on which the defendants were endorsor, befor due, B. the agent of the defendants, of fered C,, the holder of the bill, to pay it, in case A. did not, for the honour of the defendants.; and G. promised to let hirahave the,bill fqr that,purpose: the bill not having been paid by A., B., being informed of the circumstance, requested C. to let him have the bill, and that he would pay it; this G. declioed, and said that the bill had been put into the post-office to be.returned to. *America ;*it was held that B. ought to have been ready, in London, to take up the bilí, when.it became due ; that his offer to pay, when the rights of the parties had become fixed, was of no-avail; that the previous promise of G. to let him have the bill, in order to pay it, was a *nudum pactum,)*and that, under the circumstances of the casé, the plaintiff was not precluded from recovering 20 per cent1, damages on the amount.of the bill.

The plaintiff, in an action on a foreign bill of exchange,, is entitled to récovéi* the amount of the bill according to the rate of exchange at the time of notice of its dishonour to thé.defendarit, with 20per cent, damages, calcula* ted on the «omwafamount of the bill,.and with* interest on those two sums from the time of notice.

THIS- was an. action of assumpsit, brought by the plaintiff aS?linst the defendants, as endorsors’ of m bill- of exchange for 7501., sterling, drawn, by *Robert Patton,.*jun., of *Alexandria, on IngRs, Ellice Co,*of *London,*in favour of *Robert Patton,*dated the 28th of *July,*1812, and which had been duly protestéd for non-payment, and'notice thereof given. The cause was *323tried before Mr. *3 .Spencer,*at the *New-York*sittings, in *N ovember,*1815. . . . -

The defendants read, at the trial, the deposition of *Edward Frears,*of *Birmingham,,*taken under'a commission, who stated that he and his partner, *Edward Cairns,*jun., were the correspondents and agents of the defendants, and that they had directions from the defendants to pay all bills of which they were ■■ the drawers or endorsors, which were not duly honoured by the drawers, and particularly bills Of exchange drawn on *Inglis, Ellice 8? Co.*of *London ■;*and that, in consequence of such orders, they had paid several bills of exchange for the honour of. the defendants. The: deponent understanding, on or .about the 10th of *November,*1812, that a bill drawn on *Inglis, Ellice Sr . Co.,*on which the defendants were endorsors, had been refused acceptance, applied, several times, to *Wm..*Wallis, the holder of the bill, to inquire whether the bill had been accepted, and, at thosé times, informed *Wallis*that if the-bill was not. paid, the deponent and his partner would pay it, and requested him to let them have the bill, in case of its not being paid by the drawers, which he promised to do.. The deponent, understanding that the bill would become due about the 22d of *December,*1812, wrote to *Inglis, Ellice 8r Co.,*requesting to be. informed when the bill would become due, and stating that the deponent and his partner had directions to pay bills for the honour of the defendants ; to which letter no answer was returned until the 23d of that month, when a letter was received from *Inglis, Ellice S' Cot,*informing him that the bill had been presented for payment, and refused. Immediately on receiving this letter the, deponent called on *Wallis,*taking with him a check upon his bankers, to pay the bijl and expenses,, and told'him that if he Would let-him have the bill he would pay it: *Wallis*then said to him, “ Do not you think the. damages would - be as good in my pocket as theirs ?” (meaning the defendants.) The deponent safd, “But you know, Mr. *Wallis,*I told .you we had instructions to prevent this;”; tó which *Wallis,*said, “l am satisfied with the endorsors,” or words .to that effect, and informed the deponent that he had put the bill Jnto the post-office, to besen *t to America.*The deponent stated, that after a letter had been put into the post-office, the post-master would not return it to any person. The defendants- had, at the timé, funds in the hands of the deponent and his partner, with which the bill *324might have been paid; and they, were prevented from paying tlie bill- in *London,,*as they might have done, by hot hearing from *Inglis.; EIl\ce Sr Co.*in time. ■ ■ ■ •

’ The, plaintiff provedi that, at the time.the bill'of exchange was returned,' the rate of exchange between *England*and *America,*was 16/per cent, below par, and that at thá time of- the trial it was 8 per cent:- above par, and the counsel for the plaintiff insisted that-the plaintiff was entitled to recover the amount of the bill; at the rate-of exchange at the time of the-trial. The judge, however* expressed his opinion that the plaintiff was entitled to . recover the amount Of the bill, at the rate of exchange when the same was. returned,' with damages, and' no more; A verdict was then taken for- the' plaintiff, for the amount of the bill, deducting 16 per cent*,, with 20 per cent, damages, calculated upon the ■face'of it, and interest'On both those'sums, from the ..time that' the bill was returned,'subject to the opinion of 'the. court on a case made, with liberty ffor the court to increase the verdict, of, if the plaintiff were nqt'entilled .to damages, to diminish it. . " ’

*D. ,B. Ogden,*for the plaintiffs*

He cited *Dash.*v. *Gisaves, 12 Johns. Rep.*17. in error.

*Colden*and *Hoffman,*contra.-

They cited *Thompson v. Robertson & Bowne,*4 *Johns. Rep.*27. *Durkin*v. *Henderson & Cairns, 7 Johns. Rep.*448.

*Per Curiam.*

The facts stated -afford no ground of defence hi this action., ■ *Wallis,*pursued the strictly regular course, ip charge the endorsofs. If'the. agents megnt .to carry into effect the agreement with *Wallis,*they should have stood, ready to pay and take Up,the bill in *London,*when' if was. payable. They never tendered payment in *London,,*nor did- they do so* at *Birmingham,.*until the rights of-the parties were, fixed. Indeed, the .agreement-with *Wallis*was a *nudum pactum*the agents were not oompéllable ,to, pay at; any time* • When ’WctUOt-'Committed the dishonoured bill to the post office, it was uncertain whether the ag;ents'wóuld, or would not, choose to pay it; and when- they offered to- pay, it was Upon, a condition.-which it was impossible for him to. comply with, the delivery of the bill. The-jury gave the .value of the bilí at the rate of exchange at the time of notice to the endorsers, with'20 per cent* damages, on the nomb *325.nal amount of the bill, and interest on both sums from the same 'tíme: this was right.

Judgment for plaintiff, according to the verdict.