Mr. Justice CATRON.
By the instructions given by the Circuit Court, the controversy is made to turn on the construction of the statute of Maryland; nor does the record raise any question on the transaction growing out of the fact, that it was one between governments, to obtain a sum of money due from the one to the other; in which the corporation acted as an instrument and agent, in a form suggested by itself, to obtain the money. For instance: if it be true, that the United States, in fact, received no money from the bank for the bill, it not having been charged to the bank; this being found, with the additional fact, that the parties intended to await the event of payment, or refusal, on the part of France, and let the bank hold and use the money awaiting the event; then the question on the equity of the case may arise. But the jury did not pass on any such facts, the instruction given rendering the inquiry unnecessary; and so it cut off every other question the plaintiff might have raised in opposition to the offset claimed.
The foregoing is given merely as an instance, to show that no question arises on the record, but on the construction of the act of 1785.
The statute provides for two classes of cases: 1st, 'the owner or holder of the protested bill, or the person or persons, company, society, or corporation entitled to the same;' and 2dly, 'and endorser of the bill who should pay to the holder, or the person or persons, company, society, or corporation entitled to the same, the value of the principal and the damages and interest.'
In the first class, the 'owner or holder,' &c., shall have a right to receive and recover so much current money as will purchase a good bill of exchange of the same time of payment, and upon the same place, at the current exchange of such bills, and also fifteen per cent. damages upon the value of the principal sum mentioned in such bill, and costs of protest, together with legal interest upon the value of the principal sum mentioned in such bill, from the time of protest, until the principal and damages are paid and satisfied.
In the second class, the endorser who has paid the principal, damages, and interest, shall have a right to receive and recover the sum paid, with legal interest upon the same, from the drawer or any other person or persons, company, society, or corporation, liable to such endorser upon such bill of exchange.
It is not necessary to inquire whether this statute includes all possible cases, and if it does not, by what law the cases so unprovided for would be governed, because the bank is seeking, in this instance, to being itself within the statute; unless it does so, the precise claim of fifteen per cent. cannot be sustained. The charge of the court below was twofold.
1. That the case was governed by the law of Maryland, and
2. Construing that law.
The bill of exceptions includes both points; but this court has proceeded to examine and decide the cause on the second only, passing over the first.
The bank must then bring itself within one of the two classes above described; let us examine them in order.
Was the bank at the time when its present rights accrued, the 'owner or holder of the bill.' I say at the time its present rights accrued, because this general proposition includes the rights acquired at the time of protest, or acquired subsequently each of which branches must be separately examined.
The bill was endorsed to Messrs. Baring, Brothers and Co., of London, on some day which the record does not state: that it was sold to the Barings, and not sent over for collection, is not controverted, nor open to question.
It was then passed by endorsement to N. M. Rothschild, and from him to the Messrs. Rothschild in Paris, in whose possession it is found on the day that it became due. It was at their request that a demand was made, by the notary, for payment, and upon refusal, that the bill was protested. So far, they appear to have been, and no doubt were, both the 'owners and holders of the bill,' and the only 'persons entitled to the same at the time of the protest.'
Hottinguer and Co. intervened immediately after protest, and paid the bill for the honor of the bank. What rights were then acquired?