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tested for non-acceptance or non-payment, ten per cent. damages, besides interest and costs.

The rule of damages in Connecticut, on bills returned protested, and drawn on any person in New-York, is two per cent. upon the principal sum specified in the bill; on NewHampshire, Vermont, Maine, Massachusetts, Rhode Island, New-York, (city of New-York excepted,) New-Jersey, Pennsylvania, Delaware, Maryland, Virginia or territory of Columbia, three per cent. ; on North Carolina, South Carolina, Ohio or Georgia, five per cent.; on any other part of the United States, eight per cent. upon such principal sum, and to be in lieu of interest and all other charges, and without any reference to the rate of exchange.a

In Pennsylvania, the rule, for a century past, was twenty per cent. damages in lieu of re-exchange; but by statute, in 1821, five per cent. damages were allowed upon bills drawn upon any person in any other of the United States, except Louisiana; if on Louisiana, or any other part of North America, except the Northwest Coast and Mexico, ten per cent.; if on Mexico, the Spanish Main, or the islands on the coast of Africa, fifteen per cent.; and twenty per cent. upon protested bills on Europe, and twenty-five per cent. upon other foreign bills, in lieu of all charges, except the protest, and the amount of the bill is to be ascertained and determined at the rate of exchange.

In Maryland, the rule by statute in 1785, is fifteen per cent. damages, and the amount of the bill ascertained at the current rate of exchange, or the rate requisite to purchase a good bill of the same time of payment upon the same place. In Virginia and South Carolina, the damages, by statute, are fifteen per cent.b

In North Carolina, by statute, in 1828, and revised in 1837, damages on protested bills, drawn or endorsed in that state, and payable in any other part of the United States, except Louisiana, are six per cent.; payable in any other part of North America, except the Northwest Coast of America, or in the West India Islands, ten per cent.; payable in South

Statutes of Connecticut, 1838, 477.

Revised Statutes of Virginia, edit. 1814, vol. i. 158.

America, the African islands or Europe, fifteen per cent.; and payable elsewhere, twenty per cent.

The damages in Georgia, by statute, in 1827, on bills drawn on a person in another state, and protested for non-payment, are five per cent.; and on foreign bills protested for non-payment, are ten per cent., together with the usual expenses and interest, and the principal is to be settled at the current rate of exchange.a

The damages on bills drawn in the state of Alabama, on any person resident within the state, are ten per cent.; and on any person out of it, and within the United States, are fifteen per cent.; and on persons out of the United States, twenty per cent. on the sum drawn for, together with incidental charges and interest.b

In Louisiana, in 1838, the rate of damages upon the protest for non-acceptance or non-payment of bills of exchange drawn on and payable in foreign countries, was declared by statute to be ten per cent.; and in any other state in the United States, five per cent., together with interest on the aggregate amount of principal and damages. On protested bills, drawn and payable within the United States, the damages include all charges, such as premiums and expenses, and interest on those damages, but nothing for the difference in exchange.c

The damages in Tennessee, by statute, in 1827, on protested bills, over and above the principal sum, and charges of protest, and interest on the principal sum, damages and charge of protest from the time of notice, are three per cent. on the principal sum, if the bill be drawn upon any person in the United States; and fifteen per cent. if upon any person in any other place or state in North America bordering on

* See Griffith's Law Register, passim, under the head of “bills of exchange and promissory notes." Revised Laws of Illinois, 1833. Prince's Dig. of Statutes of Georgia, 1837, 2d. edit. 454. 462. Revised Statutes of Indiana, 1838. And see Report of Mr. Verplanck, from the select committee in the House of Representatives of the Congress of the United States, on the subject of foreign bills, made March 22d, 1826. American Jurist, No. 4, 398. Ibid. No. 6, 398. Merchants' Magazine, New-York, September, 1841, 265.

b Aikin's Alabama Dig. 2d edit. 328.
• Robert v. Comm. Bank, 13 Louis. Rep. 528.

the Gulf of Mexico, or in the West Indies; and twenty per cent. *if upon a person in any other part of the *120 world. These damages are in lieu of interest, and all other charges, except the charges of protest, to the time of notice of the protest and demand of payment.

In Kentucky, the damages on foreign bills protested for non-acceptance or non-payment are ten per cent.a

In Mississippi, the damages on inland bills within the state protested for non-payment, are five per cent.; if drawn on any person resident out of the United States, ten per cent.; no damages on protested bills drawn on a sister state.b

In Missouri, the damages on bills of exchange drawn or negotiated within the state, and protested for non-acceptance or non-payment, as against the drawer and endorser, are four per cent. on the principal sum; if drawn on any person out of the state, but within the United States, ten per cent.; if out of the United States, twenty per cent.; the same rate of damages as against the acceptor on non-payment.c

The damages in Indiana and Illinois on foreign bills are ten per cent.; and on bills drawn on any person out of the state, and within the United States, are five per cent., in addition to the cost and charges.

In Ohio, the damages on protested bills drawn on persons residing within the United States, but not in Ohio, are six per cent.; and if out of the United States, twelve per cent. over and above the principal and interest of the bill.d

The inconvenience of a want of uniformity in the rule of damages in the laws of the several states is very great, and has been strongly felt. The mischiefs to commerce, and perplexity to our merchants, resulting from such discordant and shifting regulations, have been ably, justly and frequently urged upon the consideration of congress; and the right of

■ There have been conflicting decisions in Kentucky, under their act of 1798, as to the character of the bills to which the ten per cent. damages applied; and the Supreme Court of the United States, in the case of the Bank of the U. S. v. Daniel, 12 Peters' Rep. 33. 53, felt itself bound reluctantly to follow the narrowest of the decisions.

Digest of the Laws of Mississippi, edit. 1837, 834. Sadler v. Murrah, 8 Howard, 195. Act of Mississippi, 1837.

• Revised Statutes of Missouri, 1835, 98.

• Statutes of Ohio, 1831.

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congress to regulate, by some uniform rule, the rate and rule of recovery of damages upon protested foreign bills, or bills drawn in one state upon another, under the power in the constitution "to regulate commerce with foreign nations, and among the several states ;" and the expediency of the exercise of that right have been well, and, I think, conclusively shown, in the official documents which have been prepared on that subject.a

*121

*(9.) Of mercantile guaranties.

A guaranty, in its enlarged sense, is a promise to answer for the payment of some debt, or the performance of some duty, in the case of the failure of another person, who, in the first instance, is liable. As this engagement is a common one in mercantile transactions, and analogous, in many respects, to that of endorser of negotiable paper, a few remarks concerning its creation and validity will not be altogether inapplicable to the subject.b

In Pillans v. Van Mierop, it was held, that a note of guaranty, being in writing, and in a mercantile case, came within the reason of a bill or note, and did not require a consideration to appear upon the face of it. But there was a sufficient apparent consideration in that case, and the dicta of the judges were afterwards considered as erroneous, in Rann v. Hughes, before the House of Lords. The doctrine in the latter case was, that all contracts, if merely in writing, and not specialties, were to be considered as parol contracts, and a consideration must be proved.

See the Report of Mr. Verplanck, from the select committee already referred to, and the Report of a Committee of the Chamber of Commerce of New-York, in February, 1828. In that last document, the Committee of the Chamber of Commerce approve of the principle of damages on foreign bills returned under protest, and they state that the practice of re-exchanges, which are so easily made between the great capitals of Europe, does not exist between Europe and the United States; nor do our business operations require them; and, until some safe and satisfactory substitute is established, the usage, in this country, of allowing damages on protested bills, ought to be continued.

b The character of letters of guarantee as commercial instruments, and the liberal manner in which they are dealt with by the courts, are stated by Mr. Justice Story, in Lawrence v. McCalmont, 2 Howard's R. 426.

• 3 Burr's Rep. 1663.

7 Brown's P. C. 550.

The English statute of frauds,a which has been adopted throughout this country, requires, that, "upon any special promise to answer for the debt, default or miscarriage of another person, the agreement, or some memorandum or note thereof, must be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." An agreement to become a guarantor or surety, for another's engagement, is within the statute; and if it be a guaranty for the subsisting debt or engagement of another person, not only the engagement, but the consideration for it, must appear in the writing. The word agreement, in the statute, includes the consideration for the promise, as well as the promise itself, for without a consideration *there is no valid agreement. This was the *122 decision in the case of Wain v. Warlters; and though that decision has been frequently questioned, it has since received the decided approbation of the courts of law;d and the Ch. J. of the C. B. observed, that he should have so decided if he had never heard of the case of Wain v. Warlters. The English construction of the statute of frauds has been adopted in New-York and South Carolina, and rejected in several other states. The decisions have all turned upon the face of the word agreement; and where, by statute, the word promise has been introduced, by requiring the promise or agreement to be in writing, as in Virginia, Tennessee and Mississippi,

29 Charles II. c. 3. sec. 4.

b 5 East's Rep. 10.

Jenkins v. Reynolds, 3 Brod.

See ex parte Minet, 14 Ves. Rep. 190. Ex parte Gardom, 15 ibid. 286. • Saunders v. Wakefield, 4 Barnw. & Ald. 595. & Bing. 14. Morley v. Boothby, 3 Bing. Rep. 107. Bing. 201.

Newbury v. Armstrong, 6

• Sears v. Brink, 3 Johns. Rep. 210. Leonard v. Vredenburgh, 8 ibid. 29. 2 Nott & M'Cord, 372. note. Packard v. Richardson, 17 Mass. Rep. 122. Levy v. Merrill, 4 Greenleaf's Rep. 180. S. P. ibid. 387. Sage v. Wilcox, 6 Conn. Rep. 81. Miller v. Irvine, 1 Dev. N. C. Rep. 103. The point was extensively discussed in this last case; and the majority of the court, under the act of 1819 which followed the English statute of frauds, held, that it was not requisite under that statute that the consideration of the contract should be set forth in the written memorandum of it, and that the consideration might be shown by parol proof. The N. Y. Revised Statutes, vol. ii. 135, require the special promise to answer for the debt, default or miscarriage of another person, to be in writing, and the consideration, as well as the agreement, to be expressed.

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