1785.
Sergeant, for the defendant, contended generally, that, an action lay againft the drawer of a bill of exchange upon a proteft for non-acceptance only. Cun. B. oƒ 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.
Wilʃon, for the plaintiff, denied that the cafes from Cuuningham were in point ; difputed the authority of the cafe in Buller ; and afferted that the decifion in Douglas, being pofterior to the revolution was not law here. He contended that the contract of the drawer was not that his bill fhould be accepted, but that it fhould be paid ; that there was no breach ‘till after the day of payment ; that the proteft muft then be made, or,, at leaft, 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 ftrongly that the readinefs of the plaintiff in taking up his bills, fhould operate in favour of the prefent action, which required only an equitable right to maintain it, and which it would therefore be incongruous to fay was more favourable for him, who put his creditor to the vexation and delay of a law fuit, than to the man of honor and integrity, who, in his eagernefs to do juftice, had erroneoufly paid more than he was bound to pay. And, he added, that the 20 per cent damages, was impofed as a penalty, and no confideration paid for it by the purchafer of a bill, who therefore, had no right in confcience to retain it.
The Court had the cafe under advifement till the 21ft of November, when the president delivered their opinion as follows.
SHIPPEN, Preʃident.— This is an action for money had and received to the plaintiff's ufe. The fats are, that a bill of exchange was drawn on a houfe in France by Benjamin Harriʃon & Company, of which company the plaintiff was one, in favour of the defendant, or fome other perfon, who indorfed the bill to the defendant. The bill being prefented to the drawer, he refufed to accept it, and a proteft was made for nonacceptance—The bill with the proteft was fent back, and the plaintiff being applied to for payment, voluntarily paid the defendant both principal and damages. This action is brought on an implied Aʃʃumptʃot to recover back part of the money, to wit, the damages, as paid by miftake ; the plaintiff contending, that to compel him to payment of damages, there ought not only to have been a proteft for non acceptance, but likewife a proteft for non payment; and that having paid thofe damages, when by law he was not obliged to pay them, he ought in juftice to recover the money back.
This is a liberal kind of action, and will lie in all cafes where by the ties of natural juftice and equity the defendant ought to refund the money paid to him ; but where the party might with a good confidence receive the money, and there was no decuit or unfair prac-
