The case was continued, for advisement, and the opinion] of the Court afterwards drawn up by
Emery J.On the facts reported, is there a legal defence against the bill of exchange declared on ? And is the verdict for too large a sum, provided there be no such defence ?
Nothing appears on the face of the bill that would necessarily exempt the drawer from responsibility. He has not drawn it as agent for the owners of the brig Hope’s cargo. Nor does it appear, that he borrowed the money, or that the plaintiff loaned it, on the credit of those owners. Nor does it appear, that the orders or letters of instruction from Winter to the defendant, were exhibited to the plaintiff to induce the accommodation, which he granted. If it were so, there is quite a variance from the orders.
In those orders it is written, “ If more funds are wanted and you can procure a lull cargo, you will draw on me for the amount at sixty or ninety days, and your drafts shall meet due honor.” This bill is made payable in 30 days after sight.
All the subsequent acts of the defendant show his intention to hold fire proceeds purchased with the money loaned, as an indemnity for the liability he had assumed in the character of drawer against the hazard of failure of Winter, to accept and pay,
Before the bill became payable, Winter, the drawee, had died insolvent, and his administrators declined paying. If the master in cases of necessity may hypothecate the cargo for supplies, or advances in a foreign port, and no doubt can be entertained on the subject of that right, “ It seems fairly to result, that if he pledge his own individual credit to obtain a cargo, that he should have a right to retain it, as security for his liability. 3 Mason, 255, The Ship Packet, *239Barker, Master; 11 Mass. R. 72, Lewis v. Hancock et al.; 3 Cranch, 140, Hodgson v. Butts; 6 Wend. 603, Everett v. Coffin et al.
The master is as much responsible on his personal contract, as the owner would be, unless the credit be given exclusively to the owner. 3 Kent’s Com. 161, and cases there cited.
If the agent, as the master is for the owners, sign his own name only to the bill, as drawer, he will become personally liable on the bill. 5 M. & S. 349, Leadbitter v. Farrow; 5 Barn. & Ald. 34, Eaton v. Bell; 5 Taunt. 749, Lefevre v. Lloyd.
The next question is, whether the instructions were correct, as to interest and damages.
In 6 Mass. R. 157, Grimshaw v. Bender et al., Parsons C. J. delivering the opinion of the Court, says, “ According to the Law Merchant, uncontrolled by any local usage, the holder, in actions upon foreign bills of exchange, sued here against the drawer, is entitled to recover the face of the bill, and the charges of protest, with interest from the time when the bill ought to have been paid, and also the price of re-exchange, so that he may purchase another good bill for the remittance of the money, and bo indemnified for the damage arising from the delay of payment. But he cannot claim the ten per cent, of the bill, which it is here the usage to pay. But the rule of damages established by the Law Merchant, is in our opinion absolutely controlled by the immemorial usage in this State, Here the usage is to allow the holder of the bill the money for which it was drawn, reduced to our currency at par, and also the charges of protest, with American interest on 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 dishonored bill was demanded of the drawer. But nothing has been allowed for re-exchange whether it is below or at par. This usage is so ancient that we cannot trace its origin ; and it forms part of the Law Merchant of the Commonwealth. Courts of law have always recognized it; and juries have been instructed to govern themselves by it in finding their verdicts.” 9 Mass. R. 1, Copp v. McDougall; recognized by Sewall J. at p. 7.
*240'We are not aware, that this rule has been altered in this State since the separation. Perceiving no error in the instructions of the Judge to the jury, there must be
Judgment on the verdict.