Opinion
SEPTEMBER TERM, 1785.
Sergeant, for the defendant, contended generally, that an action lay against the drawer of a bill of exchange upon a protest for non-acceptance only. Cun. B. of E. 77. 83. 85. Bull. N.P. 269. Doug. 55. But that, at any rate, after a voluntary and deliberate payment, the plaintiff in an action for money had and received, ought not to recover what the defendant might fairly accept.
Wilson, for the plaintiff, denied that the cases from Cunningham were in point; disputed the authority of the case in Buller; and asserted that the decision in Douglas, being posterior to the revolution was not law here. He contended that the contract of the drawer was not that his bill should be accepted, but that it should be paid; that there was no breach 'till after the day of payment; that the protest must then be made, or, at least, within the day of grace, to entitle the holder to recover from the drawer. L. Raym. 743. and that the act of 12 W. 3. c. 70. which gives the holder 20 per cent damages, mentions only bills returned unpaid, and not unaccepted. He urged strongly that the readiness of the plaintiff in taking up his bills, should operate in favour of the present action, which required only an equitable right to maintain it, and which it would therefore be incongruous to say was more favourable for him, who put his creditor to the vexation and delay of a law suit, than to the man of honor and integrity, who, in his eagerness to do justice, had erroneously paid more than he was bound to pay. And, he added, that the 20 per cent damages, was imposed as a penalty and no consideration paid for it by the purchaser of a bill, who therefore, had no right in conscience to retain it.
A Case was made in this cause for the opinion of the Court, stating, that the defendant bought a bill of exchange drawn by Benjamin Harrison Co. upon a house in France, which was presented to the drawee in February 1784, and protested for non acceptance. Before it was presented, however, the drawee had become insolvent, and an arrêt was issued by the French government, prohibiting the institution of suits against him for a certain time. When the bill became due (the arrêt still continuing in force) it was again presented, and, on the 5th of June 1784, protested for non payment. Without any knowledge of the second protest, and without any suit or compulsion of law, the plaintiff, who was one of the partners of the company that drew the bill, repaid the defendant the principal, interest, and charges, with 20 per cent damages: But, afterwards, conceiving that he had paid the 20 per cent damages in his own wrong, he brought this action to recover back the amount.
This is an action for money had and received to the plaintiff's use. The facts are, that a bill of exchange was drawn on a house in France by Benjamin Harrison Company, of which company the plaintiff was one, in favour of the defendant, or some other person, who indorsed the bill to the defendant. The bill being presented to the drawee, he refused to accept it, and a protest was made for non acceptance —. The bill with the protest was sent back, and the plaintiff being applied to for payment, voluntarily paid the defendant both principal and damages. This action is brought on an implied Assumpsit to recover back part of the money, to wit, the damages, as paid by mistake; the plaintiff contending, that to compel him to the payment of damages, there ought not only to have been a protest for non acceptance, but likewise a protest for non payment; and that having paid those damages, when by law he was not obliged to pay them, he ought in justice to recover the money back.
This is a liberal kind of action, and will lie in all cases where by the ties of natural justice and equity the defendant ought to refund the money paid to him; but where the party might with a good conference receive the money, and there was no deceit or unfair practice in obtaining it, although it was money which the party could not recover by law, this action has never been so far extended as to enable the party who paid the money voluntarily, to recover it back again. The case of Lowrey vs Bourdieu in Doug. 452, and that of Farmer vs Arundel in 2 Black. R. 825, are full to this point.
In the present case the defendant had presented the bill to the drawee for acceptance; and on refusal got it protested. Shortly after, and before the day of payment, an arrët from the King of France prohibits the creditors of the drawee from suing him; upon which the bill was immediately sent back, and Mr. Morris, without waiting for a protest for non payment, voluntarily takes up the bill and pays the damages. A protest for non payment, however, appears to have been made in France before the money was paid by Mr. Morris, although he did not know it. The defendant has acted with fairness, and lain out of his money, and might with a good conscience receive the legal damages.
The point of law principally agitated in this cause, whether a protest for non acceptance only, is sufficient to recover the money from the drawer, is not material to be determined in this action, because, as it is voluntarily paid, and the defendant might consistent with justice receive it, whether that point of law is for, or against the plaintiff, we think he cannot recover the money back.
Judgment for the defendant.