PAGE, BACON & CO., Respondents, v. ELIAS WARNER et al. Appellants, 4 Cal. 395

Mr. J. Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. Damages on foreign bills of exchange do not accrue frpm any stipulation in the contract, but are recoverable by operation of * law. They are, therefore, a mere incident to the principal sued for, and where the latter cannot be recovered, there can be no- claim for the former.

It is said that where the principal sum is paid by the drawee, as he is not liable for the damages, the liability of the drawer remains notwithstanding, because the drawee has the right to pay what he is liable to pay; but the drawee, without acceptance (as in this case), is not liable to the holder of the bill for any part of it; nor does it appear that the payment here was made by the drawee. The acceptance of payment of one of the set of bills was a waiver of all claim for damages, and this, because the evidence of debt was surrendered and canceled.

Bach part of a set of bills of exchange constitutes the whole of the bill. Furthermore, the claim for damages was waived, because the statute of this State declares, in express terms, that the damages shall be in lieu of interest, charges of protest, and all other charges incurred previous to, and at the time of, giving notice of non-payment. In this case, the interest and protest fee were paid and accepted with the principal. The plaintiffs, then, by the express law, are not entitled to both the charges and damages. They accepted the one, and have, therefore, beyond question forfeited all right to the other.

Judgment affirmed. Cited, 1 Mo. App. 576.