Gambar halaman
PDF
ePub

and of the damages herein allowed for the non-acceptance or non-payment shall be ascertained and determined, without any reference to the rate of exchange existing between this state and the place on which such bill shall have been drawn, at the time of the payment on notice of non-acceptance or non-payment.

Maine. 1. When drawn payable in the United States. The damages in addition to the interest are as follows: if for one hundred dollars or more, and drawn, accepted, or endorsed in the state, at a place, seventyfive miles distant from the place where drawn, one per cent.; if, for any sum, drawn, accepted, and endorsed in this state, and payable in New Hampshire, Vermont, Connecticut, Rhode Island, or New York, three per cent.; if payable in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, or the District of Columbia, six per cent.; if payable in any other state, nine per cent. Rev. St. tit. 10, c. 115, 110, Ill.--- 2. Out of the United States, no statutory provision. It is the usage to allow the holder of the bill the money for which it was drawn, reduced to the currency of the state, at par, and also the charges of protest with American interest upon those sums from the time when the bill should have been paid; and the further sum of one-tenth of the money for which the bill was drawn, with interest upon it from the time payment of the dishonoured bill was demanded of the drawer. But nothing has been allowed for re-exchange, whether it is below or above par. Per Parsons, Ch. J., 6 Mass. 157, 161 ; see 6 Mass. 162.

Maryland. 1. No Damages are allowed when the bill is drawn in the state on another person in Maryland. —2. When it is drawn on any "person, company, or society, or corporation in any other of the Uni

ted States," eight per cent. damages on the amount of the bill are allowed, and an amount to purchase another bill, at the current exchange, and interest and losses of protest.— 3. If the bill be drawn on a " foreign country," fifteen per cent. damages are allowed, and the expense of purchasing a new bill as above, besides interest and costs of protest. See Act of 1785, c. 38.

Michigan. 1. When a bill is drawn in the state on a person in the state, no damages are allowed.—2. When drawn or endorsed within the state, and payable out of it, within the United States, the rule is as follows: in addition to the contents of the bill, with interest and costs, if payable within the states of Wiscpnsin, Illinois, Indiana, Ohio, and New York, three per cent, on the contents of the bill; if payable within the' states of Missouri, Kentucky, Maine,' New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five per centum; if payable elsewhere in the United States, out of Michigan, ten per cent. Rev. St. 156, s. 10.—3. When the bill is drawn within this state, and payable out of the United States, the party liable must pay the same at the current rate of exchange at the time of demand of payment, and damages at the rate of five per cent. on the contents thereof, together with interest on the said contents, which must be computed from the date of the protest, and are in full of all damages and charges and expenses. Rev. Stat. 156, s. 9.

Mississippi. 1. When drawn on a person in the state, five per cent. damages are allowed. How. & Hutch. 376, ch. M, s. 20, L. 1827; How.

Rep. 3, 195 2. When drawn on a

person in another state or territory, no damages are given. Id.—3. When drawn on a person out of the United States, ten per cent. damages are given, and all charges incidental thereto with lawful interest. How. 61 Hutch. 376, ch. M, s. 19, L. 1837.

Missouri. 1. When drawn on a person within the state, four per cent. damages on the sum specified in the bill are given. Rev. Code, 1835, § 8, cl. 1, p. 120.—2. When on another state or territory, ten per cent. Rev. Code, 1835, § 8, cl. 2, p. 120. —3. When on a person out of the United States, twenty per cent. Rev. Code, 1835, § 8, cl. 3, p. 120.

New York. By the Revised Statutes, Laws of N. Y. sess. 42, ch. 34, it is provided that upon bills drawn or negotiated within the state, upon any person, at any place within the six states east of New York or in New Jersey, Pennsylvania, Ohio, Delaware, Maryland, Virginia, or

- the District of Columbia, the damages to be allowed and paid upon the usual

'protest for non-acceptance or nonpayment, to the holder of the bill, as purchaser thereof, or of some interest therein, for a valuable consideration shall be three per cent. upon the principal sum specified in the bill; and upon any person at any place within the states of North Carolina, South Carolina, Georgia, Kentucky, and Tennessee, five per cent.; and upon any person in any other state or territory of the United States, or at any other place on, or adjacent to, this continent, and north of the equator, or in any British or foreign possessions in the West Indies, or elsewhere in the Western Atlantic Ocean, or in Europe, ten per cent. The damages are to be in lieu of interest, charges of protest, and all other charges incurred previous to, and at the time of, giving notice of nonacceptance or non-payment. But the holder will be entitled to demand and recover interest upon the aggre

gate amount of the principal sum specified in the bill, and the damages, from time of notice of the protest for non-acceptance, or notice of a demand and protest for non-payment. If the contents of the bill be expressed in the money of account of the United States, the amount due thereon, and the damages allowed for the non-payment, are to be ascertained and determined, without reference to the rate of exchange existing between New York and the place on which the bill is drawn. But if the contents of the bill be expressed in the money of account or currency of any foreign country, then the amount due, exclusive of the damages, is to be ascertained and determined by the rate of exchange, or the value of such foreign currency, at the time of the demand of payment.

Pennsylvania. The act of March 30, 1821, entitled an act concerning bills of exchange enacts, that, § 1, "whenever any bill of exchange hereafter to be drawn or endorsed within this commonwealth, upon any person or persons or body corporate, of, or in any other state, territory or place shall be returned unpaid with a legal protest, the person or persons to whom the same shall or may be payable, shall be entitled to recover and receive of and from the drawer or drawers, or the endorser or endorsers of such bill of exchange, the damages herein after specified, over and above the principal sum for which such bill of exchange shall have been drawn, and the charges of protest, together with lawful interest on the amount of such principal sum, damages and charges of protest, from the time at which notice of said protest shall have been given, and the payment of said principal sum and damages, and charges of protest demanded; that is to say, if such bill shall have been drawn upon any person or persons, or body corporate, of, or in any of the United States or territories thereof, excepting the state of Louisiana, five per cent. upon such principal sum; if upon any person or persons, or body corporate, of, or in Louisiana, or of, or in any other state or place in North America or the islands thereof, excepting the north-west coast of America and Mexico, or of, or in any of the West India or Bahama islands, ten per cent, upon such principal sum; if upon any person or persons, or body corporate, of, or in the island of Madeira, the Canaries, the Azores, the Cape de Verd islands, the Spanish Main, or Mexico, fifteen per cent. upon such principal sum; if upon any person or persons, or body corporate, of, or in any state or place in Europe, or any of the islands thereof, twenty per cent, upon such principal sum; if upon any person or persons, or body corporate, of, or in any other part of the world, twenty-five per cent. upon such principal sum.

§ 2. "The damages which by this act are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except the charges of protest, to the time when notice of the protest and demand of payment shall have been given and made as aforesaid; and the amount of such bill and of the damages payable thereon, as specified in this act, shall be ascertained and determined by the rate of exchange, or value of the money or currency mentioned in such bill, at the time of notice of protest and demand of payment as before-mentioned."

Tennessee. 1. On a bill drawn or endorsed within the state upon any person or persons, or body corporate, of, or in any other state, territory or place which shall be returned unpaid with a legal protest, the holder shall be entitled to the damages hereinafter specified over and above the principal sum for which such bill of exchange

shall have been drawn, and the charges of protest, together with lawful interest on the amount of such principal sum, damages and charges of protest from the time at which notice of such protest shall have been given, and the payment of said principal sum, damages and charges of protest demanded ; that is to say, if such bill shall have been drawn on any person or persons, or body corporate, of, or in any of these United States, or the territories thereof, three per ct. upon such principal sum: if upon any other person or persons, or body corporate, of, or in any other state or place in North America, bordering upon the Gulf of Mexico, or of, or in any of the West India islands, fifteen per cent. upon such principal sum; if upon any person or persons, or body corporate, of, or in any other part of the world, twenty per cent. upon such principal sum.—2. The damages which by this act are to be recovered upon any bill of exchange, shall be in lieu of interest and all other charges, except charges of protest, to the time when notice of the protest and demand of payment shall have been given and made as aforesaid. Carr. & Nich. Comp. 125 ; Act of 1827, ch. 14.

DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute gives a party double or treble damages, the jury are to find single damages, and the court to enhance them according to the statute. Bro. Abr. Damages, pi. 70; 2 Inst. 416; 1 Wils. 126; 1 Mass. 155. In Sayer on Damages, p. 244, it is said, the jury may assess the statute damages; and it would seem from some of the modern cases, that either the jury or the court may assess. Sav. R. 214 , 1 Gallis. 29.

DAMAGES, GENERAL, torts. General damages are such as the law implies to have accrued from the act of a tort-feasor. To call a man a thief or to commit an assault and battery on his person, are examples of this kind. In the first case the law presumes that calling a man a thief must be injurious to him, with, out showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and, in the latter case, the law implies that his person has been more or less deteriorated, and that the injured party is not required to specify what injury he has sustained, nor to prove it. Ham. N. P. 40; 1 Chit. PI. 380; 2 L. R. 76.

DAMAGES, LAYING, pleading. In personal and mixed actions, (but not in penal actions, for obvious reasons,) the declaration must allege, in conclusion, that the injury is to the damage of the plaintiff; and must specify the amount of damage. Com. Dig. Pleader, C 84; 10 Rep. 116, b. In personal actions there is a distinction between actions that sound in damages, and those that do not; but in either of these cases, it is equally the practice to lay damages. There is, however, this difference, that, in the former case, damages are the main object of the suit, and are, therefore, always laid high enough to cover the whole demand; but in the latter the liquidated debt, or the chattel demanded, being the main object, damages are claimed in respect of the detention only, of such debt or chattel; and are, therefore, usually laid at a small sum. The plaintiff cannot recover greater damages than he has laid in the conclusion of his declaration. Com. Dig. Pleader, C 84; 10 Rep. 117, a. b; Vin. Ab. Damages, R. In real actions, no damages are to be laid, because, in these, the demand is specially for the land withheld, and damages are in no degree, the object of the suit. Steph. PI. 426; 1 Chit. PI. 397 to 400.

DAMAGES, LIQUIDATED, contracts. When the parties to a con

Vol. i.—35.

tract stipulate for the payment of a certain sum, as a satisfaction fixed and agreed upon by them, for the doing or not doing of certain things particularly mentioned in the agreement; the sum so fixed upon is called liquidated damages. It differs from a penalty, because the latter is a forfeiture from which the defaulting party can be relieved. An agreement for liquidated damages can only be when there is an engagement for the performance of certain acts, the not doing of which would be an injury to one of the parties; or to guard against the performance of acts, which if done, would also be injurious. In such cases an estimate of the damages may be made by a jury, or by a previous agreement between the parties, who may forsee the consequences of a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and vide 2 Bos' & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr. 2225; 2 T. R. 32. The civil law appears to agree with these principles, Inst. 3, 16,7; Toull. liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152,1153. And vide generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190; Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194 ; Finch, 117; Prec. in Ch. 102; 2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 336.

DAMAGES, SPECIAL, torts. Special damages are such as really took place, and are not implied by law; these are either superadded to general damages arising from an act injurious in itself, as when some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as when the words become actionable only by reason of special damage ensuing. To constitute special damage the legal and natural consequence must arise from the tort, and not be a mere wrongful act of a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1 Chit. PI. 333, 6.

DAMAGES, SPECIAL, pleading, as distinguished from the gist of the action, signifies that special damage which is stated to result from the gist; as if a plaintiff in an action of trespass for entering his house, breaking his closes, and tossing his goods about, were to state that by means of the damage done to his house, he was obliged to seek lodging elsewhere. But sometimes the special damage is said to constitute the gist of the action itself; for example, in an action wherein the plaintiff declares for slanderous words, which of themselves are not a sufficient ground or foundation for the suit, if any particular damage result to the plaintiff from the speaking of them, that damage is properly said to be the gist of the action. But whether special damage be the gist of the action, or only collateral to it, it must be particularly stated in the declaration, as the »plaintiff will not otherwise be permitted to go into evidence of it at the trial, because the defendant cannot also be prepared to answer it. Willes, M. See Gist.

DAMAGES, UNLIQUIDATED. The unascertained amount which is due to a person by another for an injury to the person, property or relative rights of the party injured. These damages being unknown cannot be set-off against a claim which the tort feasor has against the party injured, 2 Dall. 237; S. C. 1 Yeates, 571; 10 Serg. and Rawle, 14; 5 Serg. & Rawle, 122.

DAMNOSA HCERIDITAS. A name given by Lord Kenyon to that species of property of a bankrupt which so far from being valuable,

would be a charge to the creditors; for example, a term of years, where the rent would exceed the revenue. The assignees are not bound to take such property, but they must make their election, and, having once entered into possession, they cannot afterwards abandon the property. 7 East, R. 342; 3 Campb. 340.

DAMNUM ABSQUE INJURIA. A loss or damage without injury. There are cases when the act of one man may cause a damage or loss to another, and for which the latter has no remedy, he is then said to have received damnum absque injuria; as, for example, if a man should set up a school in the neighbourhood of another school, and, by that means, deprive the former of its patronage; or if a man should build a mill along side of another, and consequently reduce its custom. 9 Pick. 59, 528. When a man slanders another by publishing the truth, the person slandered is said to have sustained loss without injury. Bac. Ab. Actions on the Case, C; Dane's Ab. Index, h. t.

DANGERS OF THE SEA, mar. law. This phrase is sometimes put in bills of lading, the master of the ship agreeing to deliver the goods therein mentioned to the consignee, who is named, the dangers of the sea excepted. Sometimes the phrase is Perils of the Sea, (q. v.) See 1 Brock. R. 187.

DARREIN. A corruption of the French word dernier, the last. It is sometimes used, as, darrein continuance, the last continuance. When any matter has arisen in discharge of the defendant in an action, he may take advantage of it, provided he pleads it puis darrein continuance, for if he neglect to do so, he waives his right. Vide article, Puis darrein continuance.

DATE, is the designation or indication in an instrument of writing, of the time when it was made. This

« SebelumnyaLanjutkan »