Lawrence vs. McCalmont et al. that was left solely and exclusively for the immediate parties, J. and A. Lawrence, and the agents, to adjust and consider. They might enter into any new engagements as to the mode of drawing the bills, and the time which they were to run at their pleasure, without breaking in upon the true intention of the guarantee. All the stipulations of the first letter of credit were retained in the second, and an additional provision made, that if bills were drawn from the continent of Europe they should be made at the customary date and by a permanent resident. But this left J. and A. Lawrence at full liberty to draw direct on London at four months, if they chose; and in point of fact no bills were ever drawn by them except direct on London, and not from the continent. The additional liberty given, or condition imposed, was not availed of; and, if it had been, it would not have in any manner exonerated the guarantor from her responsibility. Without, therefore, looking to the question. whether these variances might or might not have been material, if new arrangements and engagements had not been within the scope of the guarantee, we are of opinion that the objection is, in the present case, not maintainable. This view of the matter disposes also of the second, third, and fourth points made at the argument. The fifth point is, that there is no valid consideration to support the guarantee. This is pressed under two aspects; the first is, that the consideration was past and not present; for the letter of credit had been already delivered to J. and A. Lawrence by the agents of the London house. The second is, that the payment of the one dollar is merely nominal and not sufficient to sustain the guarantee, if it had been received; and it is urged that it was not received. As to this last point, we feel no difficulty. The guarantor acknowledged the receipt of the one dollar, and is now estopped to deny it. If she has not received it, she would now be entitled to recover it. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guarantee as to other contracts. A stipulation in consideration of one dollar is just as effectual and valuable a consideration as a larger sum stipulated for or paid. The very point arose in Dutchman vs. Tooth, 5 Bingham's New Cases, 577, where the guarantor gave a guarantee for the pay Lawrence vs. McCalmont et al. ment of the proceeds of the goods the guarantee had consigned to his brother, and also all future shipments the guarantee might make, in consideration of two shillings and sixpence paid him, the guarantor. And the Court held the guarantee good and the consideration sufficient. In Brooks vs. Haigh, 10 Adol. and El. 309, 323, the Court held that a surrender by the guarantee of a former guarantee, even if it was not of itself binding upon the guarantor, was a sufficient consideration to take the case out of the statute of frauds, and to sustain a promise made on the footing thereof. But, independently of all authority, we should arrive at the same conclusion. The receipt of the one dollar is acknowledged; no fraud is pretended or shown; and the consideration, if standing alone in a bona fide transaction, would sustain the present suit. As to the other point, that the consideration was past, it admits of several answers, each of which is equally decisive. In the first place, although the Messrs. Lawrence had received the letter of credit before the guarantee was given, yet it was a part of the original agreement contemporaneous with the letter of credit, that it should be given; and if the guarantee had not been given, the whole advance might have been recalled as a fraud upon the London house. In the next place, it does not appear that all the bills for the £10,000, under the first letter of credit, were drawn before the guarantee was actually given; and if they were not, certainly it would attach upon the bills drawn under the first credit after it was actually given. The contract was then a continuing contract on both, and partially performed only by one. In the next place, the guarantee itself uses language susceptible of being treated as a present continuing consideration in fieri. It is "in consideration of Messrs. J. and A. Lawrence having a credit with your house;" now, the word "having" imports a present or future advance, just as much as a past. The word "having" is in the present tense; and if the parties then understood the letter of credit to be in fieri, and to be absolute only upon a condition subsequent, viz. the giving of the guarantee, the word is the most appropriate which could be used. The case of Haigh vs. Brooks, 10 Adol. and El. 309, approaches very near to the present. There the guarantee was "in consideration of being in advance to L, &c., I guarantee, &c." The Court of King's Bench thought that the words "being in advance" did not necessarily import a Lawrence vs. McCalmont et al. past advance, but might be applied to a present or future ad vance. But that which puts the whole matter in the clearest light and beyond the reach of legal controversy, is that the advances now sued for were all made after the second letter of credit was given; and if the guarantee applied (as we hold it did) to those subsequent advances under the new engagements, then the consideration was complete as upon a present and not as upon a past consideration. In every view, therefore, in which we can contemplate the objection it has no just foundation in law. As to the sixth point on the question, whether due notice of the failure of Messrs. J. and A. Lawrence to repay the advances had been given, it was a mere question of fact for the consideration of the jury, as to whether the guarantor had reasonable notice or not. They have found a verdict for the plaintiffs, and we are not at liberty to disturb it in a court of error. As to the seventh point, the notes having been left for collection only with the agents of the London house, although endorsed by the Messrs. Lawrence, they do not fall within the strict rules of commercial law applicable to negotiable paper. Admitting for the sake of the argument, that notice was not punctiliously given by the agents, still it resolves itself into a mere question of due diligence on the part of the agents to collect the notes, and falls under the general law of agency. No evidence was shown at the trial to establish any loss or damage on the part of Mrs. Lawrence for want of due protest and notice (if they were not made); and in the absence of such proof we are not at liberty to presume that the agents did not do their duty. The case of Swift vs. Tyson, 16 Peters, 1, is entirely distinguishable from the present in its leading circumstances. There, the question was, not whether a person receiving a note as collateral security or for an antecedent debt was not bound to due diligence in its collection, otherwise he made it his own, which was not doubted; but whether, taking it as collateral security or in payment of an antecedent debt, he was not to be treated as a bona fide holder for a valuable consideration, unaffected by any unknown equities between the original parties. This Court held that he was. Upon the whole we are all of opinion that there was no error Lawrence vs. McCalmont et al. in the rulings of the Court, and the judgment is, therefore, affirmed with costs. In Mussey vs. Rayner, 22 Pick. 223, the question was whether a guarantee was a limited or a continuing one. "Upon this point it has been often stated by eminent jurists that a strict rule of construction should prevail, and that it ought to appear unequivocally that it was the intention of the defendant to make such a guarantee. 12 East. 227. 1 Mason, 336. 7 Cranch, 69. On the other hand, there are authorities countenancing the doctrine that a liberal construction is to be given in such cases in favor of the person claiming rights under such a guarantee, and holding it to be the duty of the guarantor to limit his guarantee expressly to a single dealing, if he would avoid a further responsibility. Thus, in the case of Merle ts. Wells, 2 Camp. 413, where Lord Ellenborough says, 'if a party means to be a surety only for a single dealing, he should take care to say so.' Probably the better rule of construction would be that applied to other contracts, to give the instrument that effect which shall best accord with the intention of the parties, as manifested by the terms of the guarantee, taken in connexion with the subject matter to which it relates, and neither enlarging the words beyond their natural import in favor of the creditor, nor restricting them in aid of the surety." S. P. Walrath vs. Thompson, 4 Hill, 200. Curtis vs. Dennis, 7 Metc. 510. A guarantee, like other commercial contracts, is to be construed with reference to the usage of trade. Smith vs. Dann, 6 Hill, 543. For the difference between a general and special or limited letter of guarantee, see the following cases: Birkhead vs. Brown, 5 Hill, 64. Robbins vs. Bingham, 4 Johns. 476. Taylor vs. Wetmore, 10 Ohio, 490. The student will find a learned and interesting essay on the subject of guarantee in a note of Mr. Wheaton, appended to the case of Lanusse vs. Barker, 3 Wheat. 101. The author reviews not only the English authorities, but the doctrine of the civil law upon this contract. BILLS OF EXCHANGE AND PROMISSORY NOTES. BUCKNER VS. FINLEY & VAN LEAR.* A Bill of Exchange drawn in one State of the Union, upon persons living in another State is to be considered a foreign bill. MR. JUSTICE WASHINGTON delivered the opinion of the Court. This is an action of assumpsit founded on a bill of exchange drawn at Baltimore, in the State of Maryland, by the defendants, upon Stephen Dever at New Orleans, in favor of R. L. Colt, a citizen of Maryland, who endorsed the same to the plaintiff, a citizen of New York. The action was brought in the Circuit Court of the United States for the district of Maryland; and upon a case agreed, stating the above facts, the judges of that court were divided in opinion, whether they could entertain jurisdiction of the cause upon the ground insisted upon by the defendants' counsel, that the bill was to be considered as inland. The difficulty which occasioned the adjournment of the cause to this Court, is produced by the eleventh section of the judiciary act of 1789, which declares, that no District or Circuit Court shall have " cognisance of any suit to recover the contents of any promissory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange." The only question is, whether the bill on which the suit is founded, is to be considered a foreign bill of exchange? It is to be regretted that so little aid in determining this question is to be obtained from decided cases, either in England or in the United States. Sir William Blackstone, in his Commentaries,† distinguishes foreign from inland bills, by defining the former as bills drawn * 2 Peters' Rep. 586. † Vol. ii., 467. |