Opinion
APRIL TERM, 1788.
Wilcocks for the Plaintiff. Ingersol for the Defendant.
THIS was an action brought upon a bill of exchange drawn by the Defendant in favor of the Plaintiff, and by him indorsed in blank; and a count for money had and received c. was added in the declaration. The bill being returned protested, a question arose, whether the Plaintiff was entitled to recover twenty per centum damages?
The Defendant contended that the damages ought not to be allowed, because the bill was neither paid, nor accepted, in satisfaction of the debt for which it was drawn; and to prove this a receipt was produced from the Plaintiff in the following words: "Received 1st of Sept. 1784 of Mr. Jn. Steinmetz a set of Bills dated "the 30th August last on John Bulkley and Co. of Lisbon for £.478. "17.7. Sterling, which when paid will be in full for the balance of "account due to the Estate of the late Wm. Neate of London deceased."
BY THE COURT. — It is clear that the bill was neither paid nor received in satisfaction of the precedent debt, but upon the condition of its being honored: it has not been honored; consequently, the parties are in the same situation, as if it had never been drawn; and the Plaintiff (who was, in fact, agent for the drawer, and to receive the money as his servant) cannot be entitled to recover damages. See 1 Shower 163. Debers and al. v. Harriot. The same point was determined in Watts vs. Willing, tried the last term
Upon this opinion, Judgment was entered, by agreement of the parties, for the principal of the original debt, and interest from the time that the accounts between them were liquidated.