Majority
p. 344Brown versus Van Braam.
Syllabus
ERROR from the Circuit Court, for the Diftritft of Rhode IJland. The cafe was as follows: On the 10th of March, 1792, Brown and Francis, merchants, of Providence, in Rhode IJland, drew four fets of bills of exchange on Tho-?nas Dickafon and Go, merchants, of London, payable at 365 days fight, to Benjatnin Page, or order, for the aggregate fum of f. 3000 fterling. Page being át Canton on the 28th of March, 1793, endorfed thefe bills to Fan Braam, the Defendant in error, and on the fáme day, as the agent of Brown' and Francis, drew another fet of bills of exchange, upon Thomas. Dickafon and Co. payable, alfo, at 365 days fight, to Van Braam, or order, for f, 3000 fterling. On the 9th oif " April; Í793, Page,, in the fame character of agent, drew a fi-milar fet of bills, in favor of Van Braam, or order, for £. 40a fterling. One bill of each fet was prefented to Thomas Dicka-fon and Co. in London, for acceptance, on the 31ft oí December, 1793, but were then protefted for' non-acceptance, of which Brown'¿nd Francis had notice on the I ft of Jnly,i 7 94, though the bill? and protefts were not actually returned to them. The-bills were again prefented for payment on the 15th of January, 1795, (that is days after they were actually due) and protefted for non-payment, of which Brown and Francis had notice on the iftof April, 1795. This a£tion,was inftituted in the Circuit Cour.t of November Term, 1796, to recover the amount of the protefted bills, with intejeft, damages and charges ; and the declaration contained a fpecial count on each bill, together with a’ general indebitatus affumpftt for 40,000 dollars, money had and received by the-Defendants, fo the ufe of the Plaintiff. ‘On the return of the record it appeared,, that Francis had died fubfequent to the fervice of the original writ; that Brown .came into court ,and, after fuggefting the death of Francis, pleaded the general iffue; and that the Plaintiff haying, likewife', fuggefted the death of Francis K prayed 'judgment againft John Brown, the furviving- Defendant.” There was no joinder in iffue, continuance, or-other pleading; but
p. 345
immediately after the above prayer for judgment, the record proceeds, in this form : “ And the i£fd Join Bmvn made .de- “ fault:' Whereupon, this caufe being iubmitted to the court, “ and the court having fully heard the parties by their counfd; “ and mature deliberation being thereon had, it is conjidered “ by the court now here, that the fair! Andreal E. Fan Braam “Houchgeeft, do recover againfi the .laid John B.-nun, the “ furviving partner as aforefaid, the fum of thirty four thou* ’ “ fatid four hundred and fifty five dollars, and tyrentv fi'ven cents damages, and coils of fuit, taxed at fixreen dollars and <£ fifiy two cents.” To the record of t'‘is judgment, the following memorandum was annexed : “ Nota Bene. The above “ fum, as ordered by the court, includes the principal and in- “ to reft from the 15th January, T795, to the 19A November, “ 1796, and ten per cent damages, and twenty nine dollars, “ and twenty two cents, charges of proteft.”
Upon this record the following errors were afiigned, and argu-'d by Howell and Robbins, of Rhode ljland, and Dexter, of Mcjfachvfetts, for the Plaintiff in error, and by .Barnes, of Rhode Ifiand, and Mifflin, of Pennfylvania, for the I)efendant in error.
ill. That after plea pleaded,, there was a difcontinuance of the caufe in the court below,and, therefore,.no judgment could be rendered.
2d. That 10 per cent; damages, and 6 per cent; intereil, are included in the judgment, where no damages at all ought to -have been given.
3d. That the court affeffed the damages, when they ought to have be.en aflefled by ?. jurv.
For the Plaintiff' in Error,
ifl Error afiigned:—It appeals from the record, that there was a difcontinuance of the caufe, by an omiilion of the Plaintiff below, and no verdidl or judgment can cure the defect. The Defendant had come in,. and tendered an ifiue upon every count.in the declaration; and, without a joinder of iliac, or any fpecies of replication, the fugg-eftion of the. death of Francis, is-the only thing that occurs between tbe- Defendant’s plea, thus traverfing the whole ' caufe of aflion,. and the judgment againfi him by'default. r It does'not appear, that the'-Plaintiff himfelf was in court; nor, indeed, under all thecircurnflances of the record can it be ccn-■clufiveiy afeertained, for whom judgment ought to have been given. It is true,' that by the courfefy of the bar, thejimiliter might, perhaps, have .been entered at any ti ne, while the caufe was depending in the original jurifdiiftion ; but till it was en- . ■tered, the Defendant by pleading had done every thing that law or reafnn could hxadt from him ; and fit is too late to eiiter it,when thecaufs is removed ¿writ of error. In
p. 346
on this exception,, the Court will be governed by the lav/ of Rhock-IJland, by virtue of the reference made in the 34th. fection of the. Judicial Act, to the laws of the feveral States, as rules of decision iri triitis at common law, in. the Courts of the . United States, where they apply. But the law oí Rhode IJland mu ft .not be conftrued to recognize any Ioofe fyftem of practice, introduced upon the principlea.of mutual indulgence for 1.he perfonal-accommodation of attornies. By an aft of the ifo.te-. it is declared, that in .all cafes, for which the Legiilature has made no pofiti ve provifion," the laws of England /hall furn.iih the rule of d-':Cifion. If, therefore, any cuiiom, tifage, or praéiiee, ihn.ll be in oppofition to an exprefs ftatute of Rhode Jjlarid'-, or where there is no ftitute on the fubjeit, if it /hall-oppugn the principles of the common law of England, it is void, and ought to life difregarded. In the prefont inftance, ■ there- is no exprefs ftatute; -but the. difcontint'.ance is fatal at common law ; and, therefore, fatal by the law of Rhode IJland. There can be no-judgment by default, after an appearance, ’ much lefs after pleading fbut the Plaintiff fhould have enter- ■ ed thefimlllter, and then he would have been entitled to make out his cafo' before a jury,'whether the' defendant attended, or not, to fupport his plea. As the- record /lands it cannot be under/tood what was tried, an iffue in'fadl, orademurrer in law.[7]
' -21. Error ajf.gned. Bv the' law of Rhode IJland[2] it is declared, “ that when any bill or bills of exchange /hall be returned from any . parts beyond fea, duly protefted for non-acceptance, or non-payment, 'the perfoh or perfons to whom ’ “ the'foine was (ór were) payable, Ihall he entitled to have and t« recover of the drawer or drawers, endorfer or endorfers of « the bilj or-bills -of exchange, .ten.per cent*damages,'over and; “ above the principal fum, for which liich protefted bill,1 or « bills of-cxchange fo protefted, was or .were drawn, and-alfo « lawful interdi from the time-fuch bill or bills'of exchange « fo- protefted, were purchafed, until final judgment for the - fame be obtained,- and aifo legal charges of próteíting faid
p. 347
‘‘ bill (or bills) with cods of fuit.” . It isagreed, that, under . this law, damages might have been recovered,^pon the proteil for non-acceptance merely; but then the bills and proteil for non-acceptance, mull have been returned m a.reafonabfo time* whereas they were not returned • till a year had elapfed; the bills were proteiled for non-payment; and in .point of facl; it is conceded,- that the a ¿lion is-brought., upon the proteil for non-payment, and not upon the ..proteil for non-acceptance.' The notice of the non-acceptance' will not, alter ⅛⅞ cafe; for '.the .bills with the' proteil fhóüld: have .been returned to the drawers, fo as'to put it in thejr power to. take them up, and to purfue their, remedy over again# .the .drawee,'in cale he had . their affedls in his hands at the time' óf proteil'. Then con filtering the cafe upon the proteil for non-payment', no damages ought to be allowed, unleis the bills were duly protJled¡; and it appears, from the-Plaintiff’s own íhevying, that they were not proteiled for ten days after they had become payable, which is-ñot fo foon as it might have been from the nature of-the cafe, ór as it ought to have -been according to the law of merchants, by which only-three days grace are allowed. It is true, that this próteíl may be in time for one ptirpofe at common law, for inilance, .to maintain an action again#-the drawer, who had no afl’ets in the hands of the .drawee, at the time of prottfl; and yet the bills ihall not be deemed duly protejled for another^ purpofe, by ícatute,ibr inílánce, to entitle the payee, to recover damages. '•
It will be urged, however, that the allowance of damages, only appears by the nota beke fubjoined to th.e judgment of the court below, and that this ought not fo be taken into confider-' ation as apart of the record. Rut whdt ccnftitutes a record, is a very different thing, in different ftates. The mode of dating the judgment, or thereafons forir, will, like wife, admit ofgreat latitude and diverfity. If the purport of the nota bene had been incorporated with the judgment, .there would'have been no. ground for cavil; and where is the fubdantial difference, whether- the judge delivers the . explanation himftlf, or direcls it (which, for aught that appears, may be-the fa<S) to be entered by the clerk ? If the court had confined-its view to the mere formal part of the record in the cafe of Bingham Plaintid' in ■error verfus Cabot-, {ant. p. 19. ) the ground ófreverfing the judgment below could never have appeared; and if the nota bene ⅛reverfed here,’it cannot be determined what has beep tried by the cou.*"»below. But, after all, the allowance of damages mud neceifarily be inferred • from the record, independent of the nota bene. . Thus, the declaration fets forth and demands the. principal filtered, cod and damages, accruing by vjnue of • certain bills of exchange; and the demand being reducible to
p. 348
certainty by fiyurfcs, this court can follow the court below, by mere calculation, from data exifting on the record!, corredl any'error that has been committed. Since, then,' there is a judgment for- inore than the principal, intereft,* and coils upon the bills of exchange, the furplus múft be error; and the nota bens only ferves to explain how that furplus has ariiui.
3d. Error ajjigned.' The damages ought not- to have been • afleffed by the court.. It is admitted, that where a demand appears to a C3rtainty upon the record, or may be reduced to a certainty by thfe ufe of figures, the court may itieif make the . calculation, or refer it to the proper officer to bé done. 3 Leon. 213. .x Hen. Black 541. If, therefore, the declarador/ had demanded nothing more than appears on the face of the bills, .the prefent exception could not prevail; becauft- the fpecific fum to be adjudged might be' conclufively, afcertained by adding, upon á {imple procefs <;>f figures, the amount of the inte-'ireft to the principal;' though even that do&ine,has been controverted in a very recent Cafe. 4. T. Rep.^275. But the demand is not only for the principal and intereft, but, likcwife, for damages, .which are altogether uncertain; depending upon the fail, 'that the bills have been returned duly protefted; and that fail involving a complicated inveftigation into the period of the return, as well as into the time and mode of proteft. -Even, indeed., with refpeit to the intereft, a Añilar uncertainty arifes under -the provision of the Rhode Ijland law; fince intereft-is to' be allowed from the timé of purchafing the bills; and, therefore, the time of purchafing the bills was- a fail to be .afcertained, before any calculation could be made. But exclu- . five of theie points, neccftirily connected with the bills, the Defendant under che general iffué, which he had tendered, was entitled to bring a great variety of matter^ into his de-fence. As there is much 'diverfity in the laws on this fub-jecl, fome allowing 20 per-cent', others oniy 10. per cent damages, and fóme no fpecific-damages at all,, the place of drawing the ' bills may'be material. Ñor -can it be faid, that the judgment by default, even if it'had been regularly entered,, would a.dmif all that is demanded ip. the declaration ;'it admits the caufe-of action as dated, but does not admit the quantum of the.demand. The Defendant might,-therefore, have ihewn an endoefement after the bids werediihonored, and a fubfequent payment-, on the principle laid down in Term Report, ⅛2. for, an endorsement in futli cafe 'is riot cone!aftVe againft the drawer, i 2. Mid. - - - ■ ■
it is riot contended, tha^, under the principles of the Engliih law, or rh; 11 ¡age of New England, the form of a writ of en-quiry is- indiipenfable, fo afeertain damages upon every judgment by default; but where yer -matters offa£t can be fepará-
p. 349
ted from matters of law, it will be agreed to be a general, and favorite practice, to allot the aftefsmentof damages to a jury.The ancient authorities arej it is true, exceedingly crude in relation to the diftribution of jurifdiftion between judges and juries.;' but we have received the doctrine in its modern, perfect, ilate; and as.iuch, arc deeply intereiled in adhering to it. So forcible is the modern example of the Englijh courts, that the judges have refufed even to value foreign money; 4 T. Rep. 493 ; áiid a'motion for referring a bill of exchange, drawn : for Ir'ijh iter ling, to the mailer, in order, to fee what'was due, for principal intereft and cofts, has been recently rejected in Wejlminjler Hall. 5 T. Rep. 87. It is hei-⅞ indeed, to be . ..remarked,' that the bills ot exchange, in the prefent inftance, were drawn, for Britijh fterling money-;' which is, furely, as much to be denominated foreign money in an -American court, ■as Irijh fterling can be fo denominated-in an Engiijb cour t.[7] Ilelidrs,- it is to be confidered, that in England damages are .cómpenfatory ;• while in- Rhode IJland, in moll of the other ftátes in the Union, and in many foreign countries, damages' are in.the nature of a pena'l fum, given by'-ftatute; and hot a fclitary authority can be produced, where any .court lias referred a hill of exchange to the Prothonotary, to add by way. of damages, any-fum beyond the precife computation of intereft.
The dodlrine having, then, been thus fettled in England, the queflion árifss, whether the ftatutes of Rhode If and. ¡uve made any difference in the common laiv? By the regulating -.the proceedings in the-courts of that State (page 59.) it is pro- ' vtded, “ That in, all cafes,, .hoth .at the inletior and fupsrior “ courts, where judgment ih.tll pnfs by default, difcuiitinuance, “ nihil dicit, non font informatics, ae demurrer, where-damages “ aré to be enquired.into and afleffed, damages íhall be enquir- “ ed into and aiTeffedby the court, or other wife, by a writ of “ enquiry, at the diferetion of the courts.” This provifiou may bé regarded in.two points ttf view; ill, Conlideririg it, upon the ground of the oppoiite conftrúclion, whether .it fur-niíhes a rule for the Federal1 Courts, from which they can derive any new authority; ‘¡tod ad. Confidering it, upon the. ground of púr conil; uclion, whether the affeffment of the.' damages- ought not to have been referred to a jury; . ill.- ■ On the-firftof thefe grounds of confideration, there is no key •to an explanation, but the aét of Gongréfs; which declares
p. 350
u that the laws of the feveral States, except where the Conftitu-⅛ tion, treaties or ilatutes of the United States ihall Other wife “ require or provide, ihall be regarded as rules of decifion in u trials at common law in the courts of the United States, in ' a cafes where they apply.” Now, though this is an adoption of the laws of Rhode Ijland, where they apply, it cannot be confider.ed as a recognition of all the modes of practice, which may have been introduced to determine the rights of a party ; compelling the Federal Courts, whatever may be the extrava- ' ganceof thofe modes, to be in all .refpedls as erratic,as the courts of the States. For inflante; though where the State , law regulates the defcent of real property, the Circuit Court 0111ÍI decide conformably to the lex loci ; yet if the State Le-giilature had inilituted the ordeal, or trial by battle, tbafeertain who v/as the right heir, the Judges of the-Circuit Court would not, furely, ere£t thernfelves into fuch a tribunal, and prefide at fuch a mocker^. If the Federal Courts ihould attempt to alter th? fundamental laws of defcent, the citizens of Majfachufetts, os,Rhode Ifiandwould hive reafori to Complain, and the com-.' plaint would ceitainly be heard ; but if, difdaining to fandlify the errors of clerks, and the blunders of yearlings (to whom too often the bu/inefs of keeping ail'd making ftp a record is .confided) the Federal Courts ihould difcountenance and reje<S the errors and irregulariues of the. practice of the State .Courts, every fuitor' would gratefully acknowledge the obligation. T here is, perhaps, occaiion;to.lament, that errors in juiifpru-dcnce havetoo long kept the citizens or theEailern States in darknefs, ignorant of their rights and duties; and it is one of' the beneficial confequpjices, that may be fairly expected from the eftabliihmcntof the national government, that fuch amendments will every where-be introduced into the pradlice of the law, as are confident with fubilantial - juilice, legiflative a£ts, and ancient ufages, approved by experience, or favored by local peculiarities. Take the law and practice of Rhode Ijland, - however,.tahe fuch' as thby are deferibed by the oppofite coun-i-fi.ihey cannot prevail over an exprefs law of Congrefs. In . this cafe, there can be no denial that the plea tendered an iffue in fail; and all trials of iilul-s in fact muft, -fays the judicial act, be by jury.' 2d. But it is not neceffary to in lift further on .this groundj linee a true conftruilibn of the Rhode If,and law ttfelf, muft .give the affeiTment of damages to a jury. The law'fays that, in certain'cafes, “ damages ihall be enquired into and ailefied by .the court, ormtherwife, by a writ of enquiry, at the diferetion of the courts.” -If, then, diferetion here means a' found legal diferetion, and not mere will, Whim and caprice, it-ímiíl be applied to a difeernment and correfpondhig allotment df the cafes, in which the law authorifes a court to fix the quan-
p. 351
turn of debt, and in which it demands the interference of a jury for the affi-ffment- of damages. The.oppoiitef conftruction leads to the abfurdeft confequences. The Judge might, at pieafure, fubmit a promiffory note to a jury for the meie calculation of intereft ; and undertake hirnfelf to affefs the damages in an action, for a libel, when judgment has been given on demurrer forthe Plaintiff. In the latter inftance, he would be obliged to try the truth of the allegation and the credibility of the^witneff-es, and' to decide the extent of the injury which the libel has ■produced; and if a judgment thus prepofteroufly rendered ihould be brought hither, this, court would be bound to affirm it : But there is furely no cafe, confiffently with the fcope of the judicial ait, where the Circuit Court can-decide a point of law, without affording an opportunity upon the record, for its being examined, affirmed, or reverfed on a writ of error. In 1 equity, cattles, it is provided, that the fails on which the decree • of the Circuit Court is founded, ihall be made to appear upon .the-record; and In common law caufes the principle equally applies, that a- Judge ought not to, be allowed to travel over . £tound, where he can never be traced. Then, if the diferetion mentioned in the Rhode IJJand ail is a legal diferetion toafeer-tain the didributive- jurifdiilion between Judges and Juries,' and not an authority for the former to blend arid ufurp .the ■ powers of the latter; and if the Judges in- this cafe have decided whiit the Jury ought to have affeffed ; it is ah error in point ■ of law, which this court ⅛ competent to correil. Whatever ' may be the prailice of the lawyers of Rhode IJland, it is but a conftruilion of the law, arid not the law iti’elf; and if it is an erroneous conilruilion, this court, lb far from being bound to adopt, is bound to rejeil, it. Nor is the error cured by any ilatu-te of Jeoffaile. The cafe from 7 Fin. Abn p. 308. pi. 24. only ihews that the want of a forma! writ of error was cured, where the damages appeared to have been, in fail, affeffed by a jury: but there is no reafon in the cafe itfelf, or in the cafes there cited; that if damages had not been affeffed-at all, of ' been .affeffed by an-improper tribunal,'the error would not be fatal. '
F’or the Defendant in error,
id. Error affigned.—-It will, be proper to prenu’fe, on general principles, thatgreat difficul- • ties muff.have arifen in orgarsifing the Federal Courts, fo'as to "prevent an. injurious chOiing with the jurifdiilion and prailice of the. various State Courts. From thefe difficulties there could be found no other mode of efcaping, than by adopting,. ■for the-government of the Federal Courts, the fame law and prailice that prevailed in the refpeitive States, in which thofe-courts, from time to time, exerciled their functions. The po- • • iicy of the meafure was likewife fupported by its tendency to
p. 352
make the new government fit eáfy on the public mind, and to facilitate the aihniniftration of juftice throughout the Union'. For, as the law and forms of the- refbective State Courts»had been adopted in order to accompljíh fubftantial juftice, accmd-ing to the peculiar and local cijcumftances .of each State ; and as the people were content under the operation of thofe municipal regulations ; it was natura,1 to prtfume, .that by adopting the fame rule for the Federal Courts, the fame falutary efri-ct' would be produced. But, on the other hand, it is-obvious-that any projeéF for a general ivftem of jurifpruJence, co-extérnive with the Union, .could only have engendered dilcontents, and muft have been abortive. To have attempted a theory of law and practice entirely novel, would'havecrpcafionedendlefs perplexity; and to have fuperfeded the.fettled practice- of fome States, in order to introduce t'.e pra(cH<teof others; to compel, for inftance, the lawyers of MaJJachufetts, to ftudv and enforce the practice the lawyers of South Carolina, would have occafioned end-lefs jealoufy and inconvenience. From thefe confideratidns the Congrefs wifely enabled, “ That the laws of the feveral ■ a States, except where" the conftitution, treaties, or ftatutes, of “ the United States fhall otherwife require or provide, fhall be “ regarded as rules of decifion in trials at common law in the “■courts of the United States, in cafes .where they apply.” This adoption of the State laws, extends as well to the unwritten, as to the written law ;—ro the law arifing from eftablifhed ufage and judicial determinations, as well as to the law created by pofitive acts of the Leg]fixture. And the act for regulating procefs,- in language equally general adopts “ in each State refpec-tively,filch forms and modes as are ufed or allowed in the *c Supfetoe Courtsof the fame[7] .” The only queftjon, 'there-, fore, to afeertain the legal correctnefs of the prefent record.; is— what are the laws, and modes.adopted by the State óf ¡Rhode I/land., ⅛ relation to the controverted points ?', It is imn ite- • rial, how.farthte anfwer fhall be .inconfiftent with certain dogma of .the Englifo common law, or at variance w.ith the municipal regulations of any other State; it is enough to .(hew that fucli are the laws and modes of Rhode IJland, and that they .are-competent to all the'purpofes of juftice.
With relpedl, then, to, the afllgnment of error, becaufe there w.as a difeontinuance of the fuit, a. reference to the uniform praéliceof Rhode'IJland, muft furnifti a decifive" refutation. Both in thte Court of Comrhon pleas, and the Superior Court of that State, the Court proceeds to call the paities in the'airions depending.on the Docket. If either party negledls to appear, in whatever ftate of the pleadings, his nori-appearan’ce
p. 353
is noted by the desk, and judgment is rendered for the other party. If, as in the prefent inftance, a plea has been pleaded ; and, on calling over the Docket, the Plaintiff appears, and the Defendant does not, the judgment is entered for the Plaintiff without regarding the plea. If, on the other hand, the Defendant had appeared, and the Plaintiff had not, judgment would have beeh entered, in favor of the former, for coils. But, if both had appeared, whenever, called by the Court, the fimiliter could'be entered at any time, and it is ufual to enter it at the time of qualifying the Jury. Even, however, where an iffue has been regularly joined, the Court never proceed to try it, unlefs both parties appear; but enter.judgment, as above ftated, againft the delinquent.[7] Thus, it is plain, that the non-attendance of the Defendant, is confidered in the praftice of Rbide-Ifiand as an abandonment of his plea: Nor is the practice without fanction from the books of Englijb law; which ihew how a departure of a party in defpite of the Court, will be recorded, and how in almoft any ftage of a fuit, it may be a'ground for rendering judgment againft him. 7 Fin. Abrí page 450. pi. 3.5. 11. Ibid.p. 473 .pi 10. Ibid.p. 474. ph 19. Ibid.p. 4.76. pi. 7- lb.p.üfi>~¡.pl.<¡,. 1. Sira. 267. It is material, too, that the judgment is exprefsly rendered upon the Defendants making default. 5 Com. Dig. i 1.
id.' Error ajfigned. The allowance of damages only appears on the nota bene annexed to the record, which was an act of fupererogation on the part of the clerk, and ought to be treated as mere furplufage. If, however, the Court were'right in affe/Iing the damages themfelves, the affeffment (lands' in the place of a. writ of enquiry; and furely the principles on which a Jury give their verdict, can never be the foundation fora writ of error. Bills of Exchange and Protefts ane coeval with the 13th, century; and from the time of introducing a Proteft to the prefent day* its only ufe has been to enable the drawer of the proteftfed bill to take his funds out of the hands-of the Drawee: but if no funds were in the hands of the drawee, then ' the fate of the bill muft have been anticipated, no injury can be done to the drawer, and no notice will be neceffary. It is .true, that if the Drawee had failed with effects in his.hands, between the time of the bills becoming due, and the time of proteft, the Drawer would be difcharged from any refponfibility to the holder of the bills ; but this fact, operating as a difebarge, muft ' be proved on the part of'him, who wiihes to take advantage of it; lince prima facie, whatever may be the date of the proteft,
p. 354
the drawer is refponfible for-the amount of the bills.[7] Ld. Raymond 12 Mod. 15* Show. 317 £⅞⅝. B. ofE. 9.1 Term Rep. 405, Dong.55. 654. But, independent of this general principle, the bills were duly proiejled, in time and manner, according to the law of merchants; arid as the Rhode-Ijland act does not de-iignate any particular procefs of proteft,' that law muft have; been Contemplated as furniílling a ruie to decide the queftion. It is manifeft, then, from all the authorities as well as from the reafon of the cafe, that in order tobe duly protefted according to the law of merchants, it is not neceffary to be done within the three days of grace, or any other fpecific term. The-ufan-ces on Bills of Exchange differ, in different countries; and the cafe in Showers' Reports p. proves that a bill may be duly protefted-even 30 days after it has become due, if the drawer does not fhew, that he has fuftained fome damage by the delay.
yl. Error ajftgncd. It may be thought by fome to be a, fubjedt for regret, that Rhode Ijland has not difeovered the fu-. pe.ior merits of the fyftems refting on-the Englijh common law, or invented by the jurifprudential fkill of her lifter ftates: but, a? it hasfo happened, it will not be difputed, that within her ju-rifdidtion whatever is her l_aw, and not what is the law of other countries or ftates, müft furniili the rule for decifion. On the cafes in which the1 eexifts a necefrity of employing writs of en-quiry, the diverffty of theory and practice has been great, at different periods of juridical hiftory, and at different places, in-, fldenced by the principles of the Britijh laws. In fome of the States, writs of enquiry are executed on every occafion, cvén to fix a mere computation of intereft, but in New England, and éfpecially in- Majfachufetts and Rhode Ijland, a writ of,enquiry never iffues, but at the requeft of the parties, or by the difcretion of the court, in whofe prefence it is invariably executed. No language can be more forcible to exclude the oppofite conftrucHon, than the language of the Rhode Ijland act, which declares, “ that in all cafes where judgment- fhajl pafs by default, See. where damages are to be enquired into and afteffed, it Jhall be done by the court, or . otherwife, at their difcretion.” The pradlice founded on this law, and co-eval with it in commencement, furniihes the belt expofition. Thus, the judges affign a day after every term, to affefs damages in.defaulted cafes; and, hollvever piepofte-rous it may be déeméd by thofe who practice upon another
p. 355
plan, it is not the lefs true, that they conftantly exercife the power of affeiTmerit in trover, in cafes of fpecial contradi, an.<j even in a ¿lions of flander. Suppofe that the ftaiute had faid, in explicit terms,me court (hall ¿fiefs damages, arid nota jury, could a writ of.inquiry be iffued ? And if the Legiflature could give the jurifdidlion to the court, the uniform conftrudtion that they have given it, except'where a writ of enquiry is awarded by their own diferetion, or requefted by a party, ought not to be arbitrarily rejedled. Then, if the State Court bad the power, the Circuit Court • fitting in Rhode IJland, alio, póffelfed it; and, in their diferetion, were bound either to exercife'it them-felves, or to refer it to a jury. Neither party aiked for a-writ of enquiry; but, in the words of the record, “ the caufebeing fubmitted to the court,”[7] the court faw no more reafon to iflue a writ of enquiry to afeertain the damage? fpeciftcally given by law, than to afeertain the intereft at the legal rate-; and after the judgment by default, nothing could be fubmitted to the court, but the damages. This, therefore, was the matter tried; and it fuflkiently appears, without the aid of the excrefcent nota bene. Befides, on this point, as well as on the point of difcontinuance, the Englijh authorities countenance the'Rhode IJland law and pradtice. Thus,, on a demurrer in law, the. juftices may award damages for the party by their diferetion, or award a writ to enquire of damages at their eledtioni .7 Fin. Abr. p. 301. pi 4. Where judgment is by default, the court may give the damages, without putting the party to the trouble of a writ of enquiry. Ibid p. 308. pll'l'i. The court may not only afiefs damages originally, but increafe the damages ■ previoufly affefled by a jury. Ib.p. 270. pi. 7. 9. It is the courfe of the court to give intereft for damages’ upon a fin-gle.-bill, or bills of exchange, &c. and there needs no writ of enquiry. Ibid, p, 307. pi. 16. Nay, a writ of enquiry confidered, in fome cafes merely founding in damages, as a mere ,inftrument to inform the confcience of the court, “ who, if they pi cafe (fay's Chief ffuftice Wilmot) may them fel ves -.a fiefs the damages.” 3 Wilf. 61. 2 Wilf. 244. S. P. The modern cafes, likewife, fhew the latitude to which the court extend this part of their jurifdidlion ; and it is the eftabliilu-d practice to refer it t6 the Prothonotary, to afeertain damages and Coils, and calculate, intereft on a promiflory note, or bill of exchange, after judgment by default. H. Bl. 252. 541. 559. 4 rL Rep. 275. Bailey on B. of E. 66. 07. appendix g. Kid on B. of E. •155. But, after all, when judgment has been .entered by de-,
p. 35613th of February, 1797,
fault, the want of a writ of enquiry is aided by the ifatutes of Jeofaile. .Fitz. 162. 3. 7. P7n. ~. 308. p1. 24. 2 Str, p~ 878..: S. C. ~. L. Raym 397. S. P.
On the
delivered the opinion of the court. - - - - -
B~ THE COURT :-We are ~inani~oufIy of oprnion, that under the laws, and the praaical conifrualon bf the courts, of Rhode Ijiand) the judgment of the Circuit Court.ought to be affirmed.[1]
`With refpe& to the entry of this affirmauce, intereft is to be calculated to the prefent time, upon the aggregate fum of principal and intereft in the judgment below; but no further. We cannot extend the calculation to rune Term next, when the mandate will operate in the Circuit Court, as the party ha~ a right to pay the money immediately. -
The Judgment affirmed, with Jingle coffs.
SUPREME COURT,
February i3th, I 797.
R U L E.
IT is Ordered, by the Court, That the Clerk of the Court to which any Writ of Error thall be dire&ed, may make return of the fame, by tranfn~itting a true copy of t~e Record, and of. the Proceedings in the Caufe, under his hand, ~nd the Seal of the Court.
† † C~IASE, ~fuflice, obferyed, that he concurred in the opinion of the court; but that it was on common law principles, and not in compliance with .~he laws and practice of the ftate.