delivered^ the opinion of the court.

This was an action of assumpsit in the circuit court of Monroe county, founded upon a bill of exchange drawn by Samuel J. Gholson of the town of Aberdeen, on Daniel W. Ragsdale of the same place, payable at the Bank of Mobile, Alabama, and by him accepted.

The court below instructed'the jury, that if they found the defendants liable on the bill, that the plaintiff was entitled to recover five per cent, damages on the amount thereof. This instruction is alleged to be erroneous, and presents the only question in the record for our consideration.

The point in controversy is, whether the bill is a domestic bill within the meaning of the statute of 1837. By the fifth section of the act of 23d of June, 1822, it was provided that every bill of exchange of the sum of $20 and upwards, drawn, or which might thereafter be drawn in, or dated at and from, any place in this State, upon any person or persons, &c., within the State, should, upon protest for non-acceptance or non-payment, be liable to damages at five per cent., &c. R. C. 463. The second section of the act of 1836, repealed this law. The act of 1837, not in language, but in effect,- repealed the 2d section of the act of 1836, and thus revived the act of 1822, which clearly defines what is intended by a domestic bill. It is, under the statute, a bill drawn by a person in the State, or dated at a place in the State, on a person therein. This is clearly the meaning of the act of 1822, and is what the legislature, in 1837, meant by domestic bill. This meaning will become the more apparent by reference to other parts of the act of 1836, giving *146damages on bills drawn by. a person in the State, on a person in another State within the United States; and the act of 1837 repealing this provision, in Hutch. Code, 642.

A citizen of the State can, as well as any other person, accept a bill payable out of the State. He, by so doing, either gains or loses the difference of exchange between the place of his residence, and place of payment of the bill. It may be to his interest to make such a contract; but be this as it may, we are well satisfied that it is the residence of drawer and drawee which must determine whether the bill is domestic or foreign. We decide nothing as to the rule of the commercial law on this subject, but only what is the fair Construction of our statutes.

Judgment affirmed.