(dissenting.) — We are satisfied that there is no such variance between the bill of exchange in suit, and the notarial protest, as to render the latter inadmissible in evidence, or insufficient to prove the demand at the place of payment, and notice to the indorsers. It could not have misled them. They must have known from, its tenor what bill it was which had been dishonored; and the law requires nothing more. Dennison v. Stewart, 17 How. U. S., 606.
The controversy in regard to the rule of damages presents a more difficult question.
By the general law merchant, the holder of a protested foreign bill may draw at the place of payment upon the maker, or indorser, for an amount, at the current rate of exchange, sufficient to raise a sum equal to what is due upon the unpaid bill, with the expenses of protest. Or he may recover that amount by a suit against the maker, or the indorser.
But, by the usage in this State, derived from Massachusetts, and which has prevailed so long as to become a local law merchant, the holder of such a bill can recover only the amount due upon it, with ten per cent, damages, and the interest thereon. Snow v. Goodrich, 14 Maine, 235.
This rule was adopted by merchants, for their convenience, to avoid the difficulties and controversies arising from the application of the law merchant to the fluctuations in the rates of exchange. It has been in force so long that we *304should not feel at liberty to disregard it merely on account of such fluctuations, however .great. To do so would be assuming the power to change the rule whenever, in our judgment, it will work injustice, and this without any proof that the usage has in fact been changed. If the law merchant was thus subject to the mere discretion of the Courts, there would no longer be any rule; and greater injustice would be liable to follow than can result from adhering to the rule during a temporary monetary crisis. We must therefore regard the rule as still subsisting, with the exception which we will state, until changed by the Legislature, or by an actual change of usage among merchants, by common consent, or agreement.
The exception referred to is the change of the law by which the holder of such a bill could require payment from the maker, or the indorser, in coin. This alone has a standard value, approximating to uniformity throughout the mercantile world. If the holder of the bill can exact payment in coin, as always has been the case under the rule recognized in this State, the ten per cent, additional will generally cover the damages caused by the non-payment. But if he may be compelled to take his pay in the paper currency of the country where the maker or indorser lives, that, when converted into funds at the place where the bill is payable, may fall far below the amount originally due. We therefore think that the law by which the holder could compel the maker or the indorser, residing here, to pay the amount in gold or silver coiu, was an important and essential element of the rule, constituting a part of it. It was the basis of the usage, without which it never would have been adopted. And when this right, which was so essential a part of the,rule, has been abrogated by statute, temporarily it is to be presumed, the rule itself must be regarded as abolished or suspended. There can no longer be any presumption that merchants make their contracts with reference to it, or with the understanding that their rights and liabilities are to be governed by it.
*305By the Act of Congress of July 17, 1862, and by subsequent Acts, it is provided that 'United States’ notes " shall be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports,” &c. 12 U. S. Statutes. Assuming the constitutionality of this statute, which is not questioned in this case, the holder of a foreign protested bill of exchange can now compel an indorser residing here to pay him only in our national currency. We are therefore of the opinion that the rule which prevailed when nothing but coin was a legal tender in payment, and which must have been based upon that right, cannot be regarded as in force. Judgment should therefore be rendered for the plaintiffs, and the damages assessed according to the rule of the general law merchant in such cases.
Walton and Barrows, JJ., concurred.