The statute, [Aik. Dig. 284, § 145,] continues all causes which remain on the docket undisposed of until the succeeding term, without any action of the court in each particular case. In addition, it maybe added, that the act of February, 1839, which prohibits a judgment from being rendered but by the consent of the parties at the appearance term, is in law a continuance of the cause until the ensuing oi; trial term.
By the. act of drawing a bill, it is true that the drawer directs the payment of the money to the payee, or holder, at the place where the bill is payable; but the drawing of the bill creates also a conditional liability upon the drawer, that if the bill is not paid by the drawer, upon receiving notice of that fact, he will pay it. His undertaking is not to pay the bill at the place where it is payable, but at the place where it is drawn upon default of the drawee, and by the law of the latter place must his liability on the bill be *14ascertained. At least such are the legal inferences and consequences flowing from the mere fact of drawing a foreign bill; whether it is not cotn potent for the parties, by contract, to create a law for themselves, by which the drawer on the dishonor of the bill should be liable as to damages and interest, according to the law of the place upon which the bill was drawn, need not be decided here.
By the law of this State,[Aik. Dig. 838, § 3,4,5& 7,] the liability of the different parties to a bill of exchange is ascertained and defined; by that law, it is expressly declared, that the damages upon a protested bill drawn on persons without the limits of this territory shall be ten per cent, besides kgal interest, from and after the date of the protest, which by the express provisions of the act, applies both to the drawer and endorsers.
By the use of the term «legal interest,” we think it indisputable that the Legislature meant the rate of interest established by law in this State; it is therefore unnecessary to consider what is the rule of the law merchant in such cases, though we do not doubt that an examination of the mercantile law would establish conclusively that our statute is merely in affirmance of it. [See Story on Bills, 172, and authorities cited in note 2.] The case of Hanrick v. Andrews, [9 Porter, 9,] determines no principle adverse to the view here taken, nor was the question here discussed, presented on the record. Some general remarks, it is true may be found in the reasoning of the court, which considered apart from the point under discussion, lend some countenance to the view taken by the plaintiff in error. If, however, it were clearly and explicitly stated as the plaintiff in error supposes, not being a point raised upon the record, it is no authority in this court.
Upon the application of the plaintiff in error a re-argument of the cause was directed, which being had, the following opinion was delivered.