It was held by the court* in the cases of Alston & Patrick v. Whiting & Slark, 1 Eng. R. 402, and Merchant v. Slater, ib. 529, that under our Statute profert of the assignment of a bond or note is necessaiy. The Statute applies with equal force to endorsements of bills of exchange. The demurrer of the defendant below should have been sustained to those counts of the declaration, which averred an endorsement of the bill, and failed to make profert of the endorsement.
The judgment of the court is that the plaintiff have and recover of the defendant the said sum of nineteen hundred and forty-two 96-100 dollars, and also the sum of five dollars costs of protest, and interest at the rate of ten per cent, per annum on said sum of nineteen hundred and forty-two 96-100 dollars from date of protest as aforesaid until the amount of said bill shall be paid, and also damages at the rate of four per cent, per annum, &c.
The damages allowed by law upon the class of bills to which that set forth in the declaration belongs, is four per cent, upon the amount of the bill, and not four per cent, per annum. The liability of the parties to the bill to pay that amount of damages, is fixed “ when the bill shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment. ’5 The damages are given as a penalty, the amount being fixed by law without regard to time. The judgment must be reversed, with leave to the plaintiff to amend his declaration.