John McLean

“ The material fact here is, that the bank paid the full amount in Paris of what was due there. They actually, really, and legally paid the damages, for to pay the bill at the place where payable, after protest, is to pay the damages. It gives the right to recover damages. Suppose the case of circuitous redrawing. Each holder in succession becomes entitled. Mellish v. Simeon. The cases are to every intent the same; if there be a usage, that fixes the amount: and so, if there be a law. To redraw from Paris on Maryland is fifteen per cent. This, the Bank of the United States have therefore, paid. ”

“ How then can they be confounded, and an endorser be allowed to claim as a holder? To sustain the construction of the other side, the word 'endorser' must be interpolated in the first clause. That the ownership must exist at the time of protest is clear, from the language of the statute: 'That upon all bills of exchange hereafter drawn in this state on any person, corporation, company, or society, in any foreign country and regularly protested, the owner or holder of such bill,' &c. Such bill; what bill? One that is regularly protested. ”

“ The bank was an endorser at the time of protest, and must remain so; it cannot shift its position and become a holder. The bill was paid for the honor of an endorser after protest; the only effect of which is to make the payer an endorsee of the bill, and protect the endorser, for whose credit it is taken up, from damages. ”

“ A payment supra protest, for the honor of a name upon the bill, is an exception to the general law of agent or substitution, which is that one person cannot become agent for another without his consent. ”

“ If an endorser, or his agent for his honor, takes it up supra protest, he becomes the holder. Thus full effect is given to the whole act. The argument on the other side requires an interpolation of the words 'time of protest.' By providing for the case of an endorser who has paid damages, the statute intends an action on the bill; but it does not restrain an endorser who has become holder without paying damages, because the whole statute is enlarging. ”

“ Neither the usage nor the law altered the nature of the contract, that is, made it less a contract, as to its force or its comprehension. They had one single object only, and that for the benefit of the party liable. ”

“ The United States must rest on the same obligations as a private drawer when a bill is drawn by an authorized agent. Congress call this a bill. When they settle with the bank it is called a bill of exchange. 4 Story's Laws, 2556, act of 3d March, 1837. ”

“ The account stated by the bank, if supported by proper vouchers, appears to be correct, with the exception of the claim of fifteen per cent. damages on the amount of the bill. This item, in my opinion, has no foundation in law or in equity, and ought not to be paid by the government. The bank is entitled to indemnity, and to nothing more. ”

“ Humann, the laws of France not allowing any days of grace. The answer of the cashier of the central money-chest of the public treasury was, 'that having had the orders of the minister, secretary of state for the department of finance, he was instructed to say that diplomatic treaties, which impose engagements on the French treasury to be discharged, do not become obligatory upon it until the Chambers have sanctioned the financial dispositions which are therein embraced. ”

“ The fifteen per cent. is not well named, when it is called 'damages.' It is not a penalty, but as much a part of the transaction as re-exchange, certainly not unliguidated because it can be easily calculated. ”