Longworth v. Sturges and Anderson. ture reared upon it falls. So here, if the decree of the common pleas is made to stand, and the decree of reversal held for naught, the proceedings after the reversal end. If a bill of review to reverse the decree of reversal, and to reinstate the original decree of the common pleas, is prosecuted after a final decree shall hereafter be pronounced below, will that relieve the case of any confusion or embarrassment? Titles to real estate have been canceled by the reversal of the decree; and if the court of common pleas now proceed to final decree on the original action, and titles are acquired thereunder, will a bill of review to reverse that decree, or the decree of reversal of this court, and reinstate the old reversed decree, make these proceedings less vexatious, or rights of property more secure? But it is said by counsel that we can not review our own decree of reversal, because the papers in that case have passed from the control of this court. A bill of review, by the English practice, sets forth the original bill, answer, exhibits, testimony, orders, and decree. The practice in this state is to make the original papers a part of the bill of review. This practice, adopted for the purpose only of saving costs to suitors, can not change the remedies of the parties or the jurisdiction of this court. Upon the reversal of a decree upon a bill of review, the record here should contain all that the English practice requires; or, if no record be made, the papers are as much under the control of this court as when the original bill of review was filed. This case was before this court at their December term, 1855. A motion was then made to dismiss the bill, on the ground that the court had no jurisdiction to entertain it. When that motion was argued counsel insisted, as they do now, that a decree of reversal 168] is not in its nature final. No *new arguments have been urged at the present hearing. The court then considered the question, and were of the opinion, and for the reasons which I have now stated, that a decree of reversal could be reviewed, and was not in its nature interlocutory, but final. But the question was deemed of so little importance that the judge, to whom was assigned the delivery of the opinion of the court upon that motion (4 Ohio St. 690), has not noticed it. What was deemed then an incidental question, and decided against the defendants in error, now rules the case the other way, and is armed with judicial authority. West & Co. v. Valley Bank. C. W. WEST & Co. v. THE VALLEY BANK. A bill of exchange was drawn in Cincinnati, directed to "T. & C., New Orleans." T. & C. were a mercantile firm, having business houses both in New Orleans and Cincinnati; T. residing in the former city, and C. in the latter. The bill was accepted for the New Orleans house by C., at Cincinnati, and, at maturity, was presented for payment to the house in New Orleans, and protested for non-payment. Held, that the drawers were liable to pay six per cent. statutory damages on the bill. PETITION in error to reverse the judgment of the Superior Court of Cincinnati in general term. The facts are sufficiently stated in the opinion of the court. Coffin & Mitchell, for plaintiffs in error: We claim that the award of damages to the holder of a protested bill of exchange, drawn in Ohio upon a firm doing business both within and without the state, one out of the two persons composing the firm being a resident of Ohio, was erroneous; and that such a bill was not drawn upon a person or persons" without [169 the state, within the meaning of the statute. Our statute gives damages against the drawers and indorsers of bills of exchange only when the bills are drawn upon a “person or persons, or a body corporate," without the State of Ohio. This language does not include partnerships, except when all the partners are without the state. The statute should be construed strictly; the damages given by it have been, held to be in the nature of a penalty. Farmers' Bank of Canton v. Brainerd, 8 Ohio, 292. Collins & Herron, for defendant in error: This case comes within both the letter and spirit of the statute. Grimshaw v. Bender et al., 6 Mass. 157; Case v. Heffner, 10 Ohio, 180; The State Bank of Indiana v. Bowers, 8 Blackf. 72. Allen G. Thurman, on same side: 1. That this is a foreign bill can not be questioned. At least it is so for all purposes connected with the present controversy. 10 Ohio, supra; Smith's Mercantile Law, 271, and note, and numerous VOL. VI-9 129 West & Co. v. Valley Bank. authorities there cited; 3 A. K. Marsh. 488; 7 Monroe, 281; 1 Handy, 382. 2. The drawers are estopped, upon principles of public policy, from saying that the drawees were not domiciled at New Orleans. 1 Greenl. Ev., secs. 207, 208. SCOTT, J. The plaintiffs in error drew a bill of exchange at Cincinnati for $5,000, addressed to "Taylor & Cassily, New Orleans," which was purchased by the defendant in error, and having been transferred to other parties, was at maturity returned protested for non-payment. The defendant in error thereupon took up the bill, 170] paying the *holders the full amount thereof and six per cent. statutory damages; for which amount, including said damages, the defendant in error subsequently recovered a judgment against the plaintiffs in error, at a special term in the Superior Court of Cincinnati. This judgment was, at a general term of said court, on petition in error, affirmed; and this judgment of affirmance is now sought to be reversed, mainly for the reason that the said Superior Court erred, as is alleged, in rendering judgment for six per cent. statutory damages upon the protest of this bill. C. W. West & Co., the plaintiffs in error, are flour dealers in Cincinnati. Taylor & Cassily are a mercantile firm having business houses both in Cincinnati and New Orleans-Taylor living in New Orleans, and Cassily in Cincinnati. These houses kept distinct accounts with each other, the same as with the individual members of the firm and their customers generally. The draft in question was accepted by Cassily in Cincinnati, for, and to be paid by, the New Orleans branch of the house. It was, in fact, drawn for the accommodation of the acceptors, but this fact was unknown to defendants in error, who had previously purchased other drafts from the same parties, and had always been informed that they were drawn against flour shipped by C. W. West & Co. to Taylor & Cassily for sale. The statute "ascertaining damages on protested bills of exchange," provides in its first section "that when any bill of exchange shall be drawn for the payment of any sum of money, and such bill shall be legally protested for non-acceptance or non-payment, the drawer or drawers, indorser or indorsers, shall be subject to the payment of twelve per centum damages thereon, if drawn on any person or persons, or body corporate, without the jurisdic West & Co. v. Valley Bank, tion of the United States; and six per centum damages thereon, if drawn on any person or persons, or body corporate, *within [171 the jurisdiction of the United States, and without the jurisdiction of this state," etc. Swan's Stat. 576. Now, it is claimed by the plaintiffs in error, that the bill in question is not "drawn on persons without the jurisdiction of this state," because Cassily, a member of the firm, resided in Ohio; that the damages allowed by the statute are in the nature of a penalty, and the statute is, therefore, to be construed strictly, and that the words 'person or persons" as used in the statute, do not, therefore, embrace a firm, as distinct from the persons who compose it; and that even were it otherwise, yet, as one branch of the house of "Taylor & Cassily" is located and carrying on business in Cincinnati, this bill is not drawn on a firm without the jurisdiction of this state. The principal authority relied on by the plaintiff in error is the case of Farmers Bank of Canton v. Brainerd et al., 8 Ohio, 292. That was an action brought against the defendants, as drawers and indorsers of a bill of exchange, drawn on one Joy H. Pendleton, payable at the office of John Ward & Co., in the city of New York, and which was protested for non-payment. Pendleton, the drawee, was a resident of Ohio, and Judge Hitchcock, delivering the opinion of the court, held, that although the bill was payable in New York, yet, as the drawee was a resident of Ohio, the plaintiff was not entitled to the statutory damages. But the facts in that case, as well as in the similar case of Clay v. Hopkins et al. (3 Marsh. 488), which Judge Hitchcock refers to as an authority in point to sustain his decision, are, in several material points, unlike those in the case under consideration. For, in each of those cases, the bill was drawn, not on a firm, but an individual, resident within the state, and not appearing to have any place of business without the state, at which the bill was addressed to him. The judgment under review does not, therefore, *necessarily conflict with the decis- [172 ion in 8 Ohio. It is not necessary to adopt all the reasoning of the court in that case in order to justify the decision. It may well be sanctioned under the particular facts of that case, without holding that the damages allowed by the statute are in the nature of a penalty, and, therefore, are only to be allowed in cases which can be fully brought within the precise words of the statute. According to the law merchant, uncontrolled by local usage, or statutory regulation, where a foreign bill of exchange is pro West & Co. v. Valley Bank. tested for non-payment, the holder is entitled to recover the face of the bill, and the charges of the 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 be indemnified for the damage arising from the delay of payment. (See opinion of Ch. J. Parsons in Grimshaw v. Bender, 6 Mass. 157). The statute, having its reason, doubtless, in the convenience of avoiding all disputes growing out. of the claim for re-exchange, substitutes therefor six per cent. as a uniform compensation. but This amount, though in many instances liberal as a compensation, is doubtless, in many other instances, wholly inadequate as an indemnity to the holder of a foreign bill, for its non-payment at maturity. If then, these statutory damages are not a penalty, are intended simply as a compensation to the holder for actual loss and damage resulting to him from the failure of the drawer or indorser to comply with the terms of his contract, there can be no good reason for giving such a strict and literal construction to the statute as would wholly ignore its reason, equity, and spirit. It can hardly be doubted that the terms, "any person or persons, or body corporate," as used in the statute, were intended to include 173] all persons, natural or artificial, *upon whom bills of exchange could properly be drawn. Can any good reason be assigned why mercantile firms, by whose agency so much of the commerce of the world is transacted, should be excluded from the operation of a statute designed to regulate commercial paper? The bill in question was not drawn upon the natural persons composing the firm of Taylor & Cassily, but upon the firm itself, that ideal, mercantile person, known to the world as "Taylor & Cassily," to whom it is addressed as domiciled at New Orleans; and by whom, as such firm, so domiciled, it was accepted. In the foreign character thus given to this bill, there was nothing fraudulent or false. The firm of Taylor & Cassily have a distinct branch of their mercantile house domiciled and actively engaged in business at New Orleans; keeping its own books of account, as well with the Cincinnati branch of the same house as with its customers generally. Upon this New Orleans branch of the firm, the bill was understood by the parties to be drawn; for this branch it was accepted; at its place of business it had to be presented for payment; and there it was expected, in good faith, to be paid. Under these |