v
    		. . . . Preliminary Essay
     
    . . . .
    A
    1
    		. . . . Absconding
    2
    		. . . . Acceptance
    13
    		. . . . Acceptor
    17
    		. . . . Accident, Accommodation Bill or Note
    18
    		. . . . Act of Bankruptcy, Action
    24
    		. . . . Administrator, Advice, Agent
    29
    		. . . . Agreement
    32
    		. . . . Alteration of a bill
    33
    		. . . . Arrest, Assets
    34
    		. . . . Assignee, Assumpsit, Assignation, Authority
    B
    37
    		 . . . . Bail, Balance
    38
    		 . . . . Bank Notes
    39
    		. . . . Bankers' Notes
    40
    		. . . . Bankers' Checks, Bankrupt
    41
    		. . . . Bankrupt, Bankruptcy
    48
    		. . . . Bankrupts' Certificate, Bearer
    49
    		. . . . Bills of Exchange
    C
    57
    		. . . . Cash Notes
    58
    		. . . . Checks
    63
    		. . . . Clerk, Commission
    64
    		. . . . Company, Comparison of Hands, Composition with the Acceptor
    65
    		. . . . Computation
    66
    		. . . . Conditional Acceptance, Consideration
    70
    		. . . . Construction
    72
    		. . . . Contingency, Contract
    73
    		. . . . Corporations, Costs
    74
    		. . . . Credit
    D
    75
    		. . . . Damage
    77
    		. . . . Damages, Date
    78
    		. . . . Day
    79
    		. . . . Days of Grace
    82
    		. . . . Days of Public Rest
    83
    		. . . . Death
    85
    		. . . . Debt
    86
    		. . . . Declaration
    91
    		. . . . Defence
    94
    		. . . . Delay
    95
    		. . . . Delivery
    96
    		. . . . Demand, Discharge
    100
    		. . . . Discount, Dissolution of Partnership, Dividend
    102
    		. . . . Draft, Drawee, Drawer
    E
    105
    		. . . . Effects
    106
    		. . . . Evidence
    110
    		. . . . Exchange
    112
    		. . . . Excise, Excuse
    115
    		. . . . Execution
    116
    		. . . . Executor, Expences
    117
    		. . . . Extinguishment
    F
    119
    		. . . . Factor, Feme Covert, Fictitious Names
    120
    		. . . . Foreign Bills, Forgery
    121
    		. . . . Form, Fraud, Fund
    G
    121
    		. . . . Gaming, Grace
    H
    122
    		. . . . Holder
    123
    		. . . . Honour
    I
    124
    		. . . . Illegal Considerations
    125
    		. . . . Illness, Indebitatus Assumpsit, Indorsement
    130
    		. . . . Infant, Inland Bills, Insolvency, Instalments
    131
    		. . . . Intention, Interest
    134
    		. . . . Inquiry, I.O.U.
    J
    135
    		. . . . Joint Traders, Judgment by Default
    L
    136
    		. . . . Laches, Liability, Loss
    M
    139
    		. . . . Married Women
    140
    		. . . . Month
    N
    141
    		. . . . Neglect
    142
    		. . . . Neglect, cont., Negotiability
    143
    		. . . . Non-acceptance or Non-payment, Notary Public, Notes, Notice
    O
    148
    		. . . . Obligation, Order, Over-due Bills
    P
    151
    		. . . . Parol Acceptance, Partial Payment
    152
    		. . . . Partial Acceptance, Parties
    153
    		. . . . Partners
    155
    		. . . . Partnership
    156
    		. . . . Payee, Payment
    159
    		. . . . Place, Pleas, Post, Presentment
    164
    		. . . . Proof, Promise
    165
    		. . . . Promise, Promissory Notes
    166
    		. . . . Proof, Protest
    170
    		. . . . Provision
    R
    171
    		. . . . Receipt
    172
    		. . . . Re-Exchange
    173
    		. . . . Reference, Re-Issuing, Release
    174
    		. . . . Removal, Remedy, Robbery
    S
    175
    		. . . . Satisfaction, Servant, Sets
    176
    		. . . . Signature
    177
    		. . . . Small Notes and Bills, Stamps
    179
    		. . . . Staying Proceedings
    180
    		. . . . Style, Stolen Bill, Supra Protest
    T
    181
    		. . . . Tender, Time
    182
    		. . . . Transfer
    184
    		. . . . Trustee
    U
    185
    		. . . . Usance
    186
    		. . . . Usury
    V
    187
    		. . . . Value Received
    188
    		. . . . Variance, Verbal Acceptance, Verdict
    W
    189
    		. . . . Waiver
    190
    		. . . . Waiver, Witnesses
    191
    		. . . . Witnesses, Words, Writ of Inquiry
    192
    		. . . . Writ of Inquiry, cont.
    APPENDIX

    Abstracts of the Acts relative to Negotiable Securities
    193
    		. . . . Promissory Notes
    194
    		. . . . Protest upon Inland Bills
    195
    		. . . . Bills Lost or Mislaid
    196
    		. . . . Bills or Notes for Gaming Considerations
    197
    		. . . . Bills or Notes to be Considered as Payment
    197
    		. . . . Bills, Notes &c. for Signing Bankrupts' Certificates
    STAMPS

    Abstracts of the Acts relative to Stamps for Bills, Notes, etc.
    198
    		. . . . 31 G. 3, c. 25
    200
    		. . . . Small Notes – 17 G. 3, c. 51, § 1; 17 G. 3, c. 30, § 1
    SELECT CASES
    upon
    BILLS, NOTES AND CHECKS
    relative to
    Acceptance, Bankruptcy, Costs, Notice,
    Presentment, Protest, Re-Exchange &c.
    203
    		. . . . Absolute acceptance
    205
    		. . . . Acceptance conditional, Acceptance partial
    206
    		. . . . Acceptance verbal, Acceptance - waiver of
    209
    		. . . . Bankruptcy
    210
    		. . . . Considerations Illegal
    211
    		. . . . Costs
    213
    		. . . . Days of Grace, Lost Bills, Notes & c.
    214
    		. . . . Lost Bills, Notes, cont.
    215
    		. . . . Notice
    221
    		. . . . Presentment
    227
    		. . . . Protest
    229
    		. . . . Re-Exchange
    230
    		. . . . Transfer
    ANALYSIS
    of a
    COUNT IN ASSUMPSIT
    upon a
    FOREIGN BILL
    236
    		. . . . Last Indorser against the Drawees, or First Indorsers
    247
    		. . . . Notarial Fees of Office
    250
    		. . . . Table of Stamps
    251
    		. . . . Postage by the General Post

    PRELIMINARY ESSAY.

    THE celebrated writer of the Spirit of Laws has remarked, that attention to commerce is the specific. character of British policy. "In every other country (says that enlightened author), commerce is made subservient to politics; in Great Britain politics are made subservient to commerce." To this wise policy maybe justly attributed the proud preeminence which this country has attained; to this her internal splendour, to this her external consequence, to this that aggrandisement which renders the figure in the speech of the Scythian philosophers to Alexander no longer an hyperbole; of Great Britain it may be truly said, "with her right hand she reaches

                      A2             Asia

    vi PRELIMINARY ESSAY

    Asia, with her left she lays hold of Europe.

    Freedom, and protection of commerce, constitute the very essence of the British constitution. The protection of merchant strangers was the express object of some of our most ancient laws. All that legislative wisdom could plan, or well-directed power execute, have infused their energies into the vast machine of commercial operation, and it may be truly observed, that in no country under heaven has so much attention been devoted to promote and bring to perfection the reciprocal facilities of commercial intercourse.

    Subjects of states independent of each other, amenable only to the laws of their respective governments, and owing merely a local allegiance during their temporary presence in any foreign state, the multitudinous body of merchants, varying in customs, language, habits, and manners, connected only by the common bond of

                                        reciprocity

    PRELIMINARY ESSAY vii

    reciprocity of interest, will naturally select as a central point of communication that country whose equitable laws are framed with the strictest regard to commercial relations and individual rights. Such are precisely the laws of this country; and national wealth, splendour, and aggrandisement have been the result of this enlightened policy; here commerce has erected her throne, here she may truly be said to reign, and here to revel."

    To trace progressively the gradations by which Great Britain has attained this commercial preeminence, however interesting or gratifying to curiosity such an effort might prove, is nevertheless not within the scope of a publication from which theory is excluded, and in which practical utility is the only object; the following brief observations will be offered.

    Without reverting to the Lombard Jews, or the Romans in the time of Cicero, for the origin of bills of exchange, it may be

                                        observed

    viii PRELIMINARY ESSAY

    observed, that foreign bills appear to have been introduced into this country about the year 1381. Upon the first introduction of these instruments the Courts would only give effect to bills made between English merchants and merchant strangers. At this period commerce was in its infancy; advancing in progress a more extensive latitude was required. As commercial intercourse became more extensive, regulations commensurate with such progressive extension became necessary, and bills between merchants resident within this realm became reciprocally current.

    Without attempting to trace the precise period when inland bills were first introduced, it will only be observed, that these became customary in the reign of Charles II. an era when the most important commercial regulations were projected.

    Although from the exigencies of a flourishing internal trade it became equally necessary to facilitate the intercourse be-

                                        tween

    PRELIMINARY ESSAY ix

    tween British merchants resident within the country, as that between British and foreign merchants, and consequently that inland bills should be entitled to the same currency and privileges as foreign; yet in legal construction they were not so favoured, and various cases occur in the books with respect to the allowance of days of grace and other points of distinction, until at length the legislature, by the acts of William and Mary and Queen Anne, expressly extended the privileges of foreign to inland bills of exchange.

    Promissory notes, which are of much more recent origin, were, like inland bills, upon their first introduction, subject to various litigations. These instruments, equally necessary for the purposes of internal trade as inland bills, were not at first considered by our Courts as negotiable instruments within the custom of merchants. Lord Chief Justice Holt would allow to a promissory note no intrinsic va-

                                        lidity;

    x PRELIMINARY ESSAY

    lidity; he considered it only as evidence of a debt, and that the party had no remedy but against the person from whom he immediately received it. In consequence of this opinion, and an application to the legislature by several respectable merchants, the statute of Queen Anne was passed, the preamble to which recites the great advantages that would be derived to commerce from putting promissory notes upon a footing with bills of exchange, and by the enacting part of the act these instruments construed in future to take effect exactly similar to bills of exchange.

    Notwithstanding this statute, however, the spirit of which could not be easily misconceived, and the words of which appear to contain no loop nor hinge to hang a doubt upon, yet it was doubted whether promissory notes should, like bills of exchange, be entitled to days of grace, and in other points of resemblance where the legislature had determined to identify, the

                                        Courts

    PRELIMINARY ESSAY xi

    Courts seemed inclined to distinguish. In these times, indeed, judges were not so conversant with commercial subjects as their enlightened successors, and commercial jurisprudence, not only in this but in other branches, was ,not so well understood; cases were decided without adherence to established principle, jarring decisions generated perplexity, and ignorance of what it was then impossible to know, induced troublesome and expensive litigation, and not unfrequently ruinous responsibility; the mist of doubt enveloped subjects which most emphatically demanded perspicuity, and a criterion capable of instantaneous application.

    At length Lord Mansfield, who was in law what Newton was in philosophy, dispelled the gloom, established the foundations of commercial jurisprudence upon the broad base of general justice and individual right: uniformity of decision now

                                        became

    xii PRELIMINARY ESSAY

    became prevalent, and what before was uncertainty now became system.

                                 Now at length
    The sacred influence of light appears,
    And shoots into the bosom of the deep
    A glimmering dawn.
    Although the words of the statute of Anne and the intention of the legislature could scarcely have been mistaken, yet questions had been agitated relative to the construction of promissory notes similar to those which had previously occurred relative to inland bills, until, in the case of Heylin v. Adamson, Lord Mansfield accurately traced the resemblance between promissory notes and bills of exchange, expounded clearly the very letter and spirit of the statute, explained the cause of former mistakes upon the subject, and set the question at rest for ever.

    The foundation once laid, the superstructure became easy, and the law rela-

                                        -tive

    PRELIMINARY ESSAY xiii

    tive to negotiable instruments, to use the words of the late Lord Kenyon, is now framed "to meet the exigencies of an extended commerce, without at the same time destroying the established rules of law."

    With respect to the present publication it may perhaps be asked, Why, after so many excellent treatises have been written, should another be offered on the same subject? The answer is, that instead of depreciating, the present will increase the value of these publications to that profession for whom they are calculated. The treatises of Kidd, Bailey, Chitty, Montefiore, and Evans, will suffer nothing from this compendium, which attempts to combine and concentrate the characteristic excellencies of each.

    The aim of the author in this Alphabetical Analysis, has been to convey an adequate idea of the law relative to this species of commercial contracts as affected

                      B             by

    xiv PRELIMINARY ESSAY

    by bankruptcy, death, infancy, marriage, &c. and to establish a practical guide capable of almost instantaneous application in every case that can possibly occur. The Author has advanced nothing upon his own authority; the principles of the most approved writers, founded upon judicial decisions, constitute the materials of which this work is composed, and its arrangement has been calculated to combine the most accurate and copious information with the utmost facility of reference.

    Thus, whilst this little volume may be useful to the profession, considered as a copious index to this branch of the reports, it is intended as a complete compendium to the merchant and man of business, whether in his compting-house or traveling to any distant part of the country; and by presenting a digest of adjudged cases relative to the predicament in which he may be placed, may enable him to act with promptitude where legal advice can-

                                        -not

    PRELIMINARY ESSAY xv

    not be procured, and where delay might be productive of mischief. If to the merchant, the professional man, or the public at large this little volume shall be found of practical utility, the object of the writer will be amply attained.

    N. B. [The additions of the American Editor are enclosed in brackets.]

    A

     

     

    ABSCONDING of the Drawee, Acceptor, or Maker of a negotiable instrument. – If the drawee, acceptor, or maker cannot be found at the place where such instrument is made payable, or abscond the kingdom before it become due, the holder may consider it as dishonoured, and may bring his action immediately against all the parties who have given it currency, although the time of payment is not yet come. The reason assigned by Lord Mansfield in determining this point was, that what the drawee had undertaken had not been performed, the drawee not having given him the credit which was the ground of the contract. Milford v. Mayor, Doug. 55.(*)

    ABSCONDING of the Drawee or Indorser. – It has been held at Nisi Prius that the absconding of the drawee or indorser will excuse the ne-

                      B 2             glect

    (*) [The case here cited from Douglas, is, that if a bill is not accepted, an action on the bill will lie immediately against the drawer, although the time of payment be not come.]

    2 ACC

    glect to advise him. Esp. Ca. N. P. 516. * In the case of Walwyn v. St. Quentin, Bos. & Pul. 652. the Court, however, declined giving any opinion upon this point.

    ACCEPTANCE is an engagement or undertaking [by which a person, after the issuing and before the time of its becoming due, binds himself] to pay a bill when it becomes due; it is regularly made by the person upon whom the bill is drawn; it may nevertheless be made by his agent, properly authorised for that purpose. [Or by another for his honour, or, supra protest. vid. infra. (†)] – An acceptance may be given either verbally or in writing, and it may be considered as absolute, collateral, conditional, or partial.

    ACCEPTANCE absolute is an engagement to pay according to the tenor of the bill; it is usually given by writing upon the bill the word accepted, [or, accepts] with the name or initials of the drawee. The holder of a bill has a right to insist upon a written acceptance, which is essentially necessary to give the instrument the full benefit of circulation. In accepting a bill payable after sight, it is customary to write also the day upon which the acceptance is made.

    If the drawee keep the bill a longer time than is usual, or do any other act which, upon a fair construction, gives credit to the instrument, and thereby induces the holder not to

                                        protest

    (*) [So will the circumstance of his having drawn without having the funds in the hands of his drawee. Chitty, 192. evid. tit. Notice.]
    (†) [If Any thing written on the bill by the drawee, as "seen," "presented," will, if unexplained by other circumstances, amount to an acceptance. Comb. 40. And see further, as to

    ACC 3

    protest it as dishonoured, this will amount to an absolute acceptance, as will also an agreement to pay at a future period. See Agreement, Promise.

    ACCEPTANCE collateral. See Acceptance upon honour, or supra protest.

    ACCEPTANCE conditional is an agreement to pay according to the tenor of the acceptance, as where the party renders himself liable for payment upon a contingency only. Any act which evinces an intention not to be bound unless upon a certain event, will be sufficient to give the acceptance the operation of a conditional one. Conditional acceptances have the same obligatory effect as absolute acceptances, and become absolute as soon as the contingency happens, or the condition is performed. When a conditional acceptance is made in writing the party making it should also express the annexed condition, otherwise he will not be enabled to avail himself of such condition against any other subsequent party; and it is incumbent upon such acceptor to prove the condition. Mason v. Hunt, Doug. 296.

    Whether there has been an absolute or conditional acceptance, or the extent of a con

                                        -dition

    what will be considered equivalent to an acceptance, 1 Bull. N. P. 270. 1 Atk. 71. 1 T. R. 269. Beawes 466. 3 Burr. 1663. 2 Str. 955]

    4 ACC

    dition, is a question of construction, always depending upon the particular circumstances of the individual case; but whether an acceptance is absolute or conditional is for the decision of the Court, and not the Jury. Per Buller, 1 T. R. 186.

    ACCEPTANCE partial is an agreement to pay according to the tenor of the acceptance, and may vary with respect to sum, time, or place: it may also vary from the tenor, in the manner in which the acceptor undertakes to pay the bill. All these acceptances, although the holder of the bill may refuse each, will nevertheless bind the acceptor; and the holder of the bill, in either of these cases, if he mean to have recourse to the other parties in default of payment, should give notice to all of them of such acceptance, and express in such notice the nature of it; for any act from whence it can be collected that he does not acquiesce in the acceptance, such as a general notice of non-acceptance, will be a waiver of it. 1 T. R. 182. See Waiver. (*)

    ACCEPTANCE upon Honour, or, as it is usually termed, supra protest, is a collateral acceptance, and may be made where the drawee refuses to

                                        accept

    (*) [1 Str. 214. 1152. 1195. 1212. Mar. 21. 11 Mod. 190. Beawes 481. Bull. N. P. 270. 2 Wils. 9. 1 T. R. 182. Cowp. 571.]

    ACC 5

    accept, and some third person, after protest for non-acceptance, accepts for the honour of the bill, the drawer, or any particular indorser; in which latter case he should immediately send the protest to the indorser, because the person making such protest is stiled the acceptor for the honour of the person in whose behalf he comes forward, in which case he acquires certain rights, and subjects himself to the same obligations as if the bill had been originally directed to him.

    ACCEPTANCE upon Honour, by whom it may be given. – Not only a stranger, but the drawee may accept a bill for the honour of the drawer, or any of the indorsers. The difference between such a partial and general acceptance is, that, in the latter case, he renders himself primarily liable, and the general acceptance is presumptive evidence of his possessing sufficient effects; whereas, by accepting specially, though liable to the demands of the holder as if the acceptance were general; he only engages as a surety for the particular person on whose behalf he comes forward, and is entitled to an indemnity from the person, or any of the antecedent parties.

                                        Acceptance

    6 ACC

    Acceptance upon honour after the time appointed for payment, if made to pay according to the tenor, will be considered as a general acceptance to pay on demand. Jackson v. Piggott, Ld. Raym. 364; Salk. 127. Carth. 459.

    It has been said, that if the holder be dissatisfied with the acceptance supra protest, and insist upon a simple acceptance, and protest the bill for want of it, the acceptor should renounce the acceptance he has made, and should insist that it be cancelled, otherwise he acts imprudently. Beawes' Pl. 37.

    A bill previously accepted supra protest, may be accepted by some other individual supra protest also, in honour of some particular person. Beawes' Pl. 42.

    It appears doubtful whether the possessor of a bill is bound to receive an acceptance supra protest, if offered by a responsible person. Beawes is of opinion that he is bound; whilst by others it is held, that the holder need not acquiesce in any case. 12 Mod. 410. et vi. Beawes' Pl. 37.

    Mode of accepting upon Honour, or supra protest. – The acceptor must in this case appear personally before a notary public, accompanied by

                                        two

    ACC 7

    two witnesses, and declare that he accepts such protested bill in honour of the drawer or indorser, and that he will satisfy the same at the time limited: he must afterwards subscribe the bill with his own hand thus; "Accepted supra protest in honour of A. B.;" or, as is more usual, "Accepts S. T."

    An acceptance supra protest may be so worded, that though it be intended for the honour of the drawer, yet it may equally bind the indorser; but in this case it must be sent to the latter. Beawes' Pl. 38. 457.

    Mr. Evans, in a late and excellent Essay on Bills of Exchange (published by Mr. Kearsley in Fleetstreet,) observes, that English writers have fallen into mistakes on the subject of acceptance supra protest, by adopting and incorporating into the English law the principles of foreign jurists founded upon foreign laws. The existence of such a collateral engagement, Mr. Evans observes, is a matter of perfect familiarity, that whoever first stated this maxim as part of English jurisprudence fell into the error of adopting as a general principle of mercantile law an institution founded upon the positive laws of other countries. Mr.

                                        Evans,

    8 ACC

    Evans, whose inferences appear to be conclusive upon this point observes, that, by the law of France, a protest was essentially necessary to enable the holder to maintain his action against the drawer, and cites from Pothier, that "in order to subject the drawer, or indorsers to an action negotiorum gestorum at the suit of the person discharging such bill for their honour, such bill must be protested by the bearer. The reason is, that as the drawer and indorsers only become debtors upon the bill in consequence of the protest, it is necessary that such protest should be made before he can allege that he has acquitted them from that debt, and consequently before he can be entitled to maintain the action negotiorum gestorum against them." By the law of England, however, it is well known that a protest of an inland bill is not necessary, except with regard to damages and interest; the reason, therefore, of the foreign law is inapplicable, and there is no positive law existing on the subject. In case of a foreign bill, however, the protest forms an essential part of the custom of merchants; to foreign bills therefore, the law which by other writers has been stated generally, may be cor-

                                        rectly

    ACC 9

    rectly but exclusively applied. Evans on bills, P. 34.

    ACCEPTANCE verbal. – A verbal acceptance is equally binding upon the drawee as a written one. Holt, 297.

    The words, "leave the bill and I will accept it," will amount to a complete and absolute acceptance, although the drawee had no consideration for the promise. Burr. 1669. See Agreement, Promise.

    ACCEPTANCE, what will amount to one. – This is a question of construction to be decided by a Jury, but it may be inferred that any act of the drawee evincing his consent to comply with the request of the drawer; such as the words, "seen" - "presented" - " the day of the month," or a direction to a third person to pay the bill; will amount to an acceptance. Vin. Ab. tit. Bills of Exch. I. 4. Comb. 401; Moor v. Whitby, Bull. N. P. 270; Burn. 1669; Poth's Pl. 45.

    If the drawee return the bill, having written any thing upon it (as the day on which it will become due), this, unless explained by other circumstances, will constitute an acceptance. But it has been decided in the case of Powell

                      C             v. Mon

    10 ACC

    v. Monnier, 1 Atk. 611, that where a drawee kept a bill for some days without objection, and whilst he had it in his possession made an entry of it in his bill-book (according to his usual practice) under a particular number, and wrote upon the bill the same number, with the day on which it would become due, and afterwards sent it back, refusing to accept it, the Court seemed to be of opinion that these circumstances alone did not amount to an acceptance.

    It was laid down by Lord Mansfield, in the case of Pierson v. Dunlop, that the mere answer of a merchant to the drawer of a bill, saying that he will duly honour it, is no acceptance, unless accompanied with circumstances which may induce a third person to take the bill by indorsement; but if there are any such circumstances, it may amount to an acceptance, though the answer be contained in a letter to the drawer.

    If upon presentment the drawee promise to accept at any future period such bills as may be drawn hereafter, although no such bill were made at the time of the promise, or do any other act accrediting the bill, which induces

                                        the

    ACC 11

    the holder not to protest it, this will amount to a complete and absolute acceptance: but it has been adjudged, that if the drawee say to the holder, upon his application for acceptance, "there is your bill, it is all right;" or, "leave the bill and I will examine into it," (although in the latter case the bill was left eight or ten days, and being then called for, the drawee offered to let the holder sell some effects, and pay himself,) this will not amount to an acceptance. Bayl. 48; Peach v. Kay, Esp. 17. Rep. temp. Hardwicke.

    In those cases, however, where the undertaking is doubtful, the drawee will be at liberty to prove some circumstance which does away the presumption. Powell v. Monnier, 1 Atk. 611.

    ACCEPTANCE, when to be made. It has been said that the bill should be left with the drawee twenty-four hours, that the drawee may look into his accounts and determine whether he will accept or not; but a bill or note must not be left on a presentment for payment, Ld. Raym. 281. Str. 550. Leaving the bill, however, although customary, Mr. Evans says, is nevertheless not demandable of right, the

                                        law

    12 ACC

    law in no case compelling a man to part with his security.

    ACCEPTANCE after forged indorsement. See Forgery.

    ACCEPTANCE, payable at a banker's discharged by neglect in presentment. See Discharge.

    ACCEPTANCE, what it admits in evidence. An acceptance admits the ability of the drawer to make the bill, and, if made after sight, his signature. Wilkinson v. Lutwidge, Str. 648; Jenyns v. Fowler, Str. 946; but an acceptance though made after sight of an indorsement, does not admit the ability or signature of the indorser. Smith v. Chester, 1 T. R. 654; 7 T. R. 604, 612. See Evidence, Signature.

    ACCEPTANCE of a Bill, or giving a promissory note, how far a good payment of an antecedent debt, see Payment.

    ACCEPTANCE, its general obligation. As the interests of third persons are generally involved in the efficacy of a bill, an acceptance when the bill is in the hands of a third person, will bind the drawee although he received no consideration for it, and even although that very circumstance was known to the holder. 3 & 4 T. R. 183, 339; and upon this principle

                                        it

    ACC 13

    it has been decided, that an executor giving his acceptance on account of debts due from his testator, has by such act admitted assets, and thereby made himself personally responsible, although there should be no effects. 1 T. R. 487. The obligation of an acceptance is irrevocable, and cannot be in general discharged by any other act than payment by the acceptor, or by some other person. 1 H. Bl. 88; Poth's Pl. 76. 118. – An absolute acceptance may nevertheless in particular cases be waived. See Waiver of acceptance, Discharge, Liability, Presentment.

    ACCEPTOR is that party who agrees, either verbally, in writing, or constructively from his conduct, to pay the bill. Previous to such acceptance he is called the drawee.

    No action, generally speaking, can be brought against an acceptor after payment of the bill, although such bill be afterwards indorsed, the contract between the parties being terminated by payment, and the subsequent indorsement being valid only against the person making it. 1 H. B. 89.

    The contract of the acceptor being absolute, he cannot in general insist, as a defence, on

                      C 2             the

    14 ACC

    the want of presentment of the bill at the precise time when due, or an indulgence to any of the other parties, Esp. N. P. 46: and it appears to have been decided, that the acceptor cannot insist, as a defence in an action, upon the want of a presentment before the commencement of it. Bayl. 78, n. 6. 108, n. a.

    In case of a foreign bill, where the course of exchange has altered, the acceptor will only be obliged to pay according to the rate of such exchange when the bill became due. Poth. Pl. 174. See Exchange.

    ACCEPTOR, in what case he may insist on the want of presentment. – If he undertake, by his acceptance, to pay within a certain time after demand, he may insist upon the want of presentment, 2 Show. 235: and it is said where he appoints the payment to be made by another person, as at his banker's, not only he, but every other person is, prima facie, entitled to insist upon the want of a proper presentment to such person; but this point is doubtful. Stra. 1195; Bayl. 78. acc. Smith v. de la Fontatine, Bayl. 78, n. a. ant. – Such prima facie evidence may, however, be rebutted by proof of the want of effects in the hands of such banker. Bayl. 78.

                                        ACCEPTOR,

    ACC 15

    ACCEPTOR, his liability with respect to costs. If the holder of a dishonoured bill sues all the parties to it at the same time, the acceptor is the only person responsible to the plaintiff for the costs of all the actions. Smith v. Woodcock. Same v. Dudley, 4 T. R. 691.

    ACCEPTOR, what must be proved in an action against him. – The plaintiff must prove the acceptance or signature of the defendant, and the necessary indorsements; and in the former case, the signature of the drawer, if the acceptance was made without sight of the bill; and if the bill was accepted by an agent or servant, he must prove that such agent or servant was legally authorised by his principal. (*)

    ACCEPTOR of an accommodation bill, if obliged to pay such bill, may sue the drawer, upon his implied contract to indemnify him.

    ACCEPTOR, if becoming bankrupt, see Bankruptcy.

    ACCEPTOR, how far responsible in case of a forged bill. If a person accept a bill which is actually shewn to him, he is answerable, although the name of the drawer should be forged, because his engagement has relation to that individual writing ; but if without seeing the instrument he engages to pay a bill of a cer-

                                        tain

    (*) [In a case in Sayer, 223. the court suffered the jury to determine whether, the acceptance of the bill when the names of all the indorsers were upon it, together with the promise of the defendant to pay it, did not amount to an admission, that the name of every indorser was of his hand-writing. This report cannot be relied upon, because it is in direct opposition to numerous and positive decisions, in all which it is uniformly laid down that the hand-writing of the first indorser must be proved in an action against the acceptor, notwithstanding such indorsement was on the bill at the time it was accepted. 1 T. R. 654. 3 T. R. 174. 182. 481. 1 H. Bl. Rep. C. B. 569.]

    16 ACC

    tain tenor drawn by a particular person, such engagement only refers to a bill actually drawn by the person mentioned, and consequently the acceptor in this case will not be liable.

    ACCEPTORS several, what must be proved in an action against them. The signature and acceptance of each must be in this case proved, Esp. Ca. N. P. 135, or that a partnership existed, and that an acceptance was made by one of them for himself and partners, Peake, 16. See Partners, Evidence.

    ACCEPTOR, how far discharged if taken in execution. See Discharge, Execution.

    ACCEPTOR upon Honour, what must be done to entitle him to his action of indemnity. An acceptor upon honour, is bound, in order to maintain his action for an indemnity, to give immediate notice to the person on whose behalf he engages, and such notice will be sufficient; and it is stated by Pothier, that the drawer or indorser is entitled to the same objections in an action brought by the person accepting for his honour, as upon an action in chief; otherwise the person whose business is undertaken would be in a worse condition than if it had not been so undertaken, which the nature

    ACC 17

    ture of the implied contract of negotiorum gestorum does not admit. Evans, p. 37.

    ACCIDENT – In case of the loss of an accepted bill, notice should be immediately given; for it is said, that such loss will be no excuse for not giving regular notice. Poth. Pl. 125. See Loss, Notice.

    ACCOMMODATION BILL or NOTE. – Where any party accepts a bill or note without any consideration, but merely for accommodation only, payment of part of such bill or note will not discharge the drawer. Cooke's Bank. L. 167.: but if the holder of an accommodation bill receive part from the drawer, and take a promise from him upon the back of the bill for payment of the remainder at an enlarged time, it may become doubtful how far such act will discharge the acceptor. It ought to be left to a jury to say whether this is not a waiver of the acceptance; but it ought to be left to them with strong observations to shew that it is. Bayley, 55; Ellis v. Galindo, B. R. M. 24 G. 3. cited Doug. 250, n.

    ACCOMMODATION BILL, what must be proved by the Acceptor of one in an action against the Drawer. If the acceptor of an accommoda-

                                        tion

    18 ACT

    tion bill sue the drawer, he must prove the hand-writing of the defendant and payment by himself, or something equivalent, such as his being in prison, or a capias ad satisfaciendum.

    ACT of BANKRUPTCY. – If a man become a bankrupt, all his property is, by the assignment of the commissioners to the assignees, vested in the assignees by relation to the act of bankruptcy, so as to defeat all intermediate acts done by such bankrupt to dispose of his property; and consequently the right of transfer, from the time of the act of bankruptcy, is in the assignees. Beawes, 469; 2 H. B. 335; Peake, 50. See Bankrupt, Bankruptcy, Dividend, Proof.

    ACT of BANKRUPTCY. If the acceptor of a bill or maker of a note absent himself to the holder upon the morning when such bill becomes due, this has been held to amount to an act of bankruptcy, cited by Mr. Justice Huller in the case of Leftley v. Mills, Evans, 46.

    ACTION against the Drawer, when it may be brought. – If the drawee of a bill of exchange should not accept such bill when duly presented for the purpose of acceptance, the drawer will be responsible, whether such bill

                                        were

    ACT 19

    were drawn on his account or that of a third person; and an action may be commenced against him immediately, before the time specified in the bill, not only for the principal sum, but also in certain cases for damages and interest, as a consequence of the bill's not being honoured. 2 H. B. 379; Poth. Pl. 62.

    ACTION, in case of non-acceptance, by and against whom to be brought. – The action may be brought not only against the drawee, but against all the antecedent indorsers, the debt being by law supposed to be contracted at the time the bill is drawn. Milford v. Mayor, Doug. 54; Bull. N. P. 269: and it may be brought by the drawer or indorser, not legally bound to pay, in consequence of the neglect of the holder in giving due notice for non-acceptance for the money so paid, through misrepresentation, mistake, or ignorance of the fact. Chatfield v. Paxton and Co. Sit. after Tr. T. 38 Geo. 3. cited by Chitty, 103.

    ACTION against the indorser may be commenced without making any previous demand of the drawer.

    ACTION by drawer against acceptor after payment by the drawer. For what must be proved in such action, see Evidence.

                                        ACTION,

    20 ACT

    ACTION, in what cases maintainable. An action may be brought upon a mere transfer by delivery upon a bill so transferable, if made on account of a pre-existing debt, or for a valuable consideration, passing to the assignee at the time of the assignment, as where goods are sold to him. 6 T. R. 52; 7. T. R. 64.: unless it were agreed expressly at the time of the transfer, that the assignee should take the instrument assigned as payment, and run the risk of its being paid, on the consideration of such transfer. 7 T. R. 65, 66; Holt, 121. See Payment.

    ACTION, by whom maintainable upon bills transferable by delivery. The assignee's name not being upon the instrument, and there being no privity of contract between him and any assignee bearing such after-assignment by himself, no person but his immediate assignee can maintain an action against him. Ld. Raym. 928.: neither can action be brought upon transfer by delivery made without indorsement, merely by way of sale of the bill, as in the course of a discount. 8 T. R. 757; Esp. Ca. N. P. 447: nor where the assignee expressly agrees to take it in payment and run all risks,

                                        has

    ACT 21

    has he any right of action, if such bill should eventually prove of no value: but where a bill is assigned for a good consideration by a person knowing it to be of no value, he would in all cases be compellable to refund the money received. 12 Mod. 517; 3 T. R. 759. Holt, 121.

    ACTION, in case of loss or robbery. If an instrument, transferable by mere delivery, get into the hands of any person not aware of such loss or robbery, having paid a good consideration for the same previous to its becoming due, notwithstanding such person derived his interest from the person who found or stole it, the original holder who lost it will forfeit all right of action. Good v. Coe, cited 7 T. R. 427. See Loss, Robbery.

    ACTION upon payment upon honour or supra protest. Although with respect to other debts a stranger not having any interest therein, does not entitle himself to the rights of a creditor, unless he have the consent of the creditor or debtor to such payment; yet with regard to a bill of exchange, a stranger paying such instrument supra protest, acquires the same rights as the proprietor of the bill had, although no

                      D             regular

    22 ACT

    regular transfer were made to him, and may maintain an action against the person who discharged the bill, either on the instrument itself, or on the count for money paid to the defendant's use. Esp. N. P. 112; Poth. Pl. 171; Lutw. 891; 1 T. R. See Acceptance upon honour or Supra Protest.

    ACTION usually brought upon bills or notes. Although an action of debt will lay as the sum to be recovered is specific, yet the most extensive remedy upon bills, checks, or notes, (and indeed the only one where no privity of contract exists between the parties, as between the indorsee and acceptor of a bill, and the maker of a note,) is the action of assumpsit; and this action is maintainable against all the parties wherever a liability is imposed, or legal rights created: thus it may be brought by the holder, payee, indorsee, &c. of a bill or note against the acceptor, drawer, or maker, or all the antecedent parties.

    ACTION, in what cases not maintainable. No action can be maintained (unless under special circumstances, to be shewn on the record) against a person who becomes a party to the bill subsequent to the holder; nor can a plain-

                                        tiff

    ADM 23

    tiff maintain his action against the person from whom he received a bill or note, unless he gave him a valuable consideration for it. 7 T. R. 350, 571; 1 Lutw. 886; 10 Mod. 36; 1 Wils. 185; 4 Bro. P. C. 604.

    Where a bill is returned upon the drawer for non-payment, he cannot afterwards negotiate it so as to charge the acceptor with an action on the bill at the suit of the indorsee. Beck v. Robley, 1 H. B. 1589.

    ACTION, how extinguished. If the holder of a bill make the acceptor his executor, the right of action against all the parties to the bill is by this action extinguished. Poth's Pl. 191; 1 Rol. Abr. 922; Plowd. 184, 543; Salk. 299; 2 Bl. Com. 511, 512; 3 Bl. Com. 18.

    ACTION against some of the parties will not preclude a remedy against the others. – The party entitled to such remedy may bring his action either severally against each of the, parties to the instrument, or collectively against all; and an action commenced against any one of them will not preclude any other remedy against the rest; but satisfaction by any one will discharge all the rest. Poth. Pl. 160; Hull v. Pitfield, 1 Wils. 46. See Declaration, Evidence, Execution, Judgment, Remedy.

                                        ACTION

    24 AGE

    ACTION OF DEBT. See Debt.

    ADMINISTRATOR. See Executors.

    ADVICE. In cases where the drawee of a bill of exchange is to expect further instructions relative to its payment, it is usual to insert the words, as per advice: where no further instructions are to be transmitted, acceptance or payment is ordered without further advice, and generally neither of these words are inserted. In the former case the drawee, it is said, may not pay without further advice; in the latter case, he may. Poth. Pl. 36, 169. This, however true with respect to other countries, as between the person advising and his correspondent or agent, is nevertheless inapplicable in this. By the laws of England, if a bill be refused acceptance or payment, the bill is considered as dishonoured, and the holder may proceed accordingly.

    AGENT. – It is a general principle in law, that whenever a man has a power as owner to do a thing, he may, as consistent with this right, do it by deputy, whether such person be an attorney, agent, factor, or servant. Hence it follows, that any person may draw, accept, or indorse bills by his agent as well as

                                        by

    AGE 25

    by himself. In these cases he is said to draw, indorse, or accept bills by procuration. Beawes' Pl. 83.

    AGENT, who may act as such – This being an office merely ministerial, infants, married women, persons attainted, excommunicated, or outlawed, and others incapable of binding themselves in their own right by contract, may be agents for the above purposes. Co. Lit. 52.

    AGENT, how appointed. – It has been asserted that agents should be appointed by a formal power of attorney, Beawes' Pl. 86. Marius, 2d edit. p. 104: but this is not necessary, for the authority of an agent to draw, indorse and accept bills in the name of his principal, is usually by parol. Chitty cites 7 T. R. 209; 12 Mod. 564.

    AGENT, how far he can bind his principal – If a person be appointed a general agent, as in the case of a factor for a merchant resident abroad, the principal is bound by all his acts; but an agent specially appointed under a restrictive and circumscribed power, cannot bind his principal by any act whereby he exceeds his authority. The following authorities are cited in corroboration of this doctrine. Fenn v. Harrison,

                      D2             3 T.R.

    26 AGE

    3 T. R. 757; Esp. Ca. N. P. The case of Nixon v. Bromham, Sd. Ca. 17. seems, however, to contradict the principle. Chitty on Bills.

    In a case where A. desired B. to get a bill discounted for him, but declared that he would not indorse, the majority of the court decided, that no representation of B. could bind A. as an indorser, though it was insisted that what B. had done was within the scope of his employment, which was, to raise money on the bill. Upon a second trial, however, it appearing that A. did not declare that he would not indorse, it was adjudged, that as he had authorised B. to get the bill discounted without restraining his authority as to the mode of doing it, he was bound by his acts. Chitty, p. 25, cites 3 T. R. 757; 4 T. R. 177; Collis v. Emmet, H. B. 313; Russet v. Langstaff, Dougl. 514.

    AGENT, what will amount to a general authority. See Authority.

    AGENT, acting upon implied authority. – If an agent has upon a former occasion, in the absence of his principal, usually accepted his bills, and such principal has, upon his return, approved thereof, the acceptance of such agent

                                        would

    AGE 27

    would bind him in a second absence from home. A subsequent assent of the principal will also make the act of the agent binding.

    AGENT, general, although exceeding his authority, will nevertheless bind his principal in every act he does: it therefore is incumbent upon his employer to take very particular care whom he authorises to execute such an important trust. And since a master, who has empowered his servant to draw bills of exchange in his name, is bound by all acts of the servant subsequent to such servant's leaving his service, unless due notice be given, it is incumbent upon the employer to give notice to all his correspondents individually, notice in the Gazette not being sufficient, unless brought home to the person insisting on the want of it. 9 Ca. 75; Rol., Ab. 330.

    AGENT, how he is to execute his functions. – In executing the authority entrusted to him, the agent must, as in all other acts, do it in the name and on the account of his principal, otherwise the latter will not be bound, and the agent will be personally responsible. 9 Co. 75; 1 Sto. 705; Com. Dig. tit. Attorney, c. 14.; Beawes' Pl. 83, 84, 85, 86, 87; 6 T. R. 176,

                                        177;

    28 AGE

    177; Stra. 955; 1 T. R. 181; Rep. temp. H. 3. contra, cited by Chitty, p. 27.

    An agent cannot delegate his authority, unless an express authority be given him for that purpose. 9 Co. 75; Rol. Ab. 330; Bunb. 166.

    AGENT, his duty on presenting bills for acceptance. – Bills for acceptance should be presented by an agent as soon as possible because by acceptance only, the drawee of the bill becomes debtor, and responsible to the holder; and it is laid down by foreign jurists, Pothier and Marius, that if the affairs of the drawee should be deranged, an agent, having neglected to present the bill for acceptance, would be responsible in damages and interest to his employer.

    AGENT, manner in which he should accept, draw, and indorse bills. – In these cases it is incumbent upon the agent, if required, to produce his authority, or in the alternative, the holder, it is said, may consider the bill as dishonoured, and act accordingly. Beawes' Pl. 87.

    Mr. Chitty expresses some doubt whether the holder of a bill would be in any case bound to acquiesce in the acceptance by agent, because

                                        it

    AGR 29

    it multiplies the proof which he will be obliged to produce if compelled to bring an action on the bill. Esp. Cas. Ni. Pri. 115, 269. With due deference, however, to the observation of this gentleman it may be observed, that it is a principle of law that what a man may do individually he may do by deputy, and mercantile transactions and commercial intercourse being founded upon reciprocal facilities, innumerable impediments would arise if objections which may be termed apices juris should be suffered to prevent that, which in many instances must, if at all, be performed by agency, and what in the mercantile world is usually transacted through the medium of correspondents or agents. It does not appear that this point ever became the subject of litigation, if it did, there is little doubt but a jury composed of English merchants would decide the question in the affirmative. See Authority.

    AGREEMENT, in what case a waiver of acceptance. An agreement to consider the acceptance at an end, or a message to the acceptor upon an accommodation bill, that the business has been settled with the drawer, and that he need give himself no further trouble,

                                        have

    30 AGR

    have been adjudged to amount to a waiver of an absolute acceptance. Walpole v. Puiteney, cited Doug. 247; Black v. Peele, cited Id. See Waiver.

    AGREEMENT, how far a discharge of acceptance. An agreement entered into by the holder of a bill of exchange not to sue the acceptor, upon his making affidavit that the acceptance is a forgery; and if such affidavit be made and sworn accordingly, he cannot afterwards bring an action upon such bill, although the affidavit should be false. Peake, 187; Esp. Ca. N. P. 178.

    An agreement to receive the bill of lading from the acceptor which was the consideration of the acceptance, in a case where the bill was accepted in consideration of the future consignment of goods to the acceptor, and the prospect of the commission on the sale thereof, and the holder of the bill knowing the nature of the acceptance, receives the bill of lading, &c. in pursuance of the agreement; the acceptor, by this act of the holder, will be discharged from his acceptance. Mason v. Hunt, Doug. 298. See Discharge.

    AGREEMENT to accept, how far obligatory. See Promise to accept.

                                        AGREEMENT

    ALT 31

    AGREEMENT to take bills or notes in payment, how far operative. See Payment.

    ALTERATION, before Acceptance or Indorsement. – If the bill or note, whilst in the hands of the payee, or any other holder, be altered in any material instance, as in date, sum, &c. without consent of the drawee, he will be discharged from his liability, although such bill or note may afterwards come into the hands of an indorsee not aware of the alteration: but in this case, if altered before acceptance or indorsement, the acceptor or indorser can take no advantage of the alteration. Mar. 138, 140; Beawes' Pl. 194; and the consent of any one of the parties to the alteration will in general estop him from taking an advantage of it. 4 T.R.320.

    ALTERATION of a Bill. It was decided in the case of Master v. Miller, by the opinion of all the Judges except Mr. Justice Buller, that any alteration of a bill after it has been issued will entirely destroy the obligation. In this particular case the date of a bill payable at three months after date was altered, after acceptance, from the 26th to the 20th of March; it did not appear by whom this alteration was

                                        made

    32 ARR

    made, but it was resolved that the acceptor was not liable to pay the amount to a fair holder, and the obligation of the instrument was utterly destroyed.

    ALTERATION of a Bill, its operation with respect to the Stamp. If a bill be made with a proper stamp, and afterwards altered by the consent of the parties, though before negotiation, a new stamp is necessary, as it is a different contract, Wilson v. Justice, Sit. after Mich. T. 1796. Bowman v. Nichol, 5 T. R. 537.

    ALTERATION of an acceptance, how far it will discharge the Acceptor. If the holder of a bill alter a partial into a general acceptance , this will not be a waiver or discharge of the acceptor's liability under his partial acceptance. Price v. Shute, Beawes' Pl. 222; Molloy's Pl. 28; 4 T. R. 336, cited by Chitty, p. 85.

    ARREST, legality of a second under same writ. – In a case where defendant was arrested, and discharged out of custody upon giving the plaintiff a draft for part of the money due, on which he was discharged out of custody; but the draft having been dishonoured, he was retaken upon the same writ; and it was held

                                        that

    ASS 33

    that this proceeding was perfectly warrantable and regular. Lord Kenyon observed upon this occasion, "that if the bill which is given in payment does not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be, and therefore he may consider it as a nullity, and act as if no such bill had been given." 6 T. R. 52.

    ARREST, when illegal. – By 38 Geo. 3. c. 1. s. 8, no person shall be held to bail, unless the affidavit of the debt, allege, that no offer has been made to pay the debt in bank notes payable on demand. See Tender.

    ASSETS are those effects of a deceased person in the hands of his representative, whether as executor or administrator, and they are to be applied to payment of the debts of the deceased according to the nature and legal priority of such debts.

    ASSETS, if deficient, in what case the executor is personally responsible. An acceptance by an executor on account of debts due from his testator, is an admission of assets, and will therefore make him personally responsible if there should be eventually no effects in his hands belonging to his testator. 1 H. B. 622;

                      E             3 Wils.

    34 AUT

    3 Wils. 1; 2 Stra. 1260; 2 Barnes, 137; 2 Burr. 1225; .1 T. R. 487. See Executor.

    ASSIGNEE of a bankrupt cannot insist upon the want of notice of a bill being dishonoured, if the drawer or indorser is a bankrupt at the time of the acceptance. Esp. Ca. N. P. 516, sed qu? See Bankrupt, Bankruptcy, Dividend, Notice, Proof.

    ASSUMPSIT is the species of action appropriated to recover damages upon simple contract debts, as contradistinguished from debt upon specialties. In any case, therefore, where the law implies a promise, this action may be brought; such as for goods sold and delivered, money had and received, money paid, laid out and expended, work and labour, &c. It is usually brought where the damages are uncertain, in contradistinction to debt where the sum is liquidated.

    ATTESTATION, in the case of bills under five pounds, pursuant to 17 Geo. 3. c. 30. s. 1, must be made by one subscribing witness, and the indorsement of such bill must also be made in a similar manner. See Small Notes, Witnesses, and Abstract of this Act in the Appendix.

    AUTHORITY is either general or special,

                                        and

    AUT 35

    and may not only be express but implied; and an authority may be given by parol as well as in writing. 12 Mod. 564.

    AUTHORITY, the powers conferred by it in certain cases. A person signing or indorsing his name on a blank unstamped paper, and delivering it to another, authorizes such person to insert any sum which that stamp will warrant in its amount, 1 H. B. 313; Russel v. Langstaffe, Doug. 514: and a letter of attorney, given by an executor to another person, enabling him to transact the affairs of the testator in the name of the executor, as executor, and to pay, discharge, and satisfy all debts due from the testator, will convey sufficient authority, to such person to accept a bill of exchange, in the name of the executor, drawn by a creditor, for the amount of a debt due from the testator, and make the executor personally liable. Chitty, 25, cites 2H.B. 618, sed qucere? 6 T. R. 591, and 1 H. B. 155.

    AUTHORITY of a servant, signing a bill must be proved. See Evidence, Signature.

    AUTHORITY general, what is evidence of. Usual employ is evidence of this, and it is sup-

                                        posed

    36 AUT

    posed to continue until its determination is notorious. 10 Mod. 110; 12 Mod. 346. See Notice.

    Subsequent assent is evidence of precedent authority. Comb. 450. See Agent, Evidence.

     

     

     

    B 37

     

     

    BAIL, upon whose account to be considered as holders of a bill. The bail of the parties sued upon a bill of exchange) or any other persons who on account of any of the parties may have paid the bill, are considered as the holders of the bill, which they hold as a transfer from the person on whose account they have made the payment, and not as upon a transfer from the person they have paid. Hall v. Pitfield, B.R.H.T. 17 G.2.

    BALANCE only proveable under a commission in case of mutual debts. In case of mutual debts the balance only is to be proved under a commission against the acceptor or indorser of a bill or note dishonoured; a debtor of the bank-

                      E 2             rupt

    38 BAN

    rupt may therefore set off a bill or note which he holds against him, and is not compellable to pay the whole sum where he is a debtor, and take a dividend as creditor. But this mutuality must exist at the time of the act of bankruptcy. See Bankruptcy, Dividend, Set Off, Proof.

    BANK NOTES, their origin, form, &c. – These instruments derive their origin from the 5th William & Mary, c. 20. s. 19, 20, and the 8 & 9 W. 3. c. 20. s. 30; – The former of these statutes empowered the king to incorporate the persons subscribing towards raising and paying into the receipt of the Exchequer, the sum of 1,200,000/. by the name and title of "the Governor and Company of the Bank of England." These notes are made payable on demand, and are treated as money in the ordinary course of business, and upon payment of them a receipt is given as for cash. If they are lost, the true owner may bring an action of trover to recover them: but it has been adjudged that an action for money had and received will not lie against the finder to recover their value, unless money has been actually received for them. Noyes v. Price,

                                        An.

    BAN 39

    An. Sittings London, Hil. T. 16 G. 3; 3 T. R. 554. Bank notes are not a legal tender especially objected to on that account at the time of the offer, although after such tender a creditor cannot arrest his debtor; for by 38 G. 3. c. 1. s. 8, no person shall be held to bail, unless the affidavit of the debt allege, that no offer has been made to pay the debt in bank notes payable on demand.

    BANKERS' NOTES, or as they were formerly termed goldsmiths' notes, are promissory notes given by bankers who were originally goldsmiths – they were originally given by bankers to their customers as an acknowledgment for having received money to their use, Holt, 119; 1 Salk. 283. These notes are seldom issued except by country bankers, the use of them being now supplied in the metropolis by checks. – Their form is similar to common promissory notes payable to bearer on demand, and are so stated in pleading. These notes, when issued by London bankers, are called shop notes, and whether payable to order or bearer are considered as cash, on account of their being payable on demand; like bankers' checks they are generally transferred by delivery: they may notwithstanding be negotiated

                                        by

    40 BAN

    by indorsement, in which case the act of indorsing will make them similar to bills of exchange, and they may be declared upon as such against the indorser. Love, 58; Ld. Raym. 743; 1 Salk. 132,3; 4 T. R. 149.

    BANKERS' CHECKS, see Checks.

    BANKRUPT, payments made by him. – By 19 G. 2. c. 32, no person shall be liable to refund any money which before the suing out a commission of bankruptcy, was really and bona fide, and in the usual and ordinary course of trade and dealing received by such person of any such bankrupt, before such time as the person receiving the same shall know, understand, or have notice that he is become a bankrupt; but although payment by a bankrupt to a person not having notice of the bankruptcy and being a bona fide creditor for goods sold, or by the bankrupt's having drawn, negotiated, or accepted a bill of exchange in the usual or ordinary course of trade and dealing, is protected by the act above cited; yet this statute has been so strictly construed according to the letter, that money paid by a trader after a secret act of bankruptcy to a carrier for the carriage of goods may

                                        be

    BAN 41

    be recovered back in an action of assumpsit by the assignees of the bankrupt. S T. R. 197.

    BANKRUPT depositing a bill by way of pledge. If a bankrupt, without putting his name to a bill, deposit it by way of pledge, it must, like any other pledge, be sold for the benefit of the creditor, and he can only be admitted to prove for the residue, and cannot in this case, as where the name appears on the bill, prove for the full amount, and receive dividends from all parties until he has received twenty shillings in the pound. Evans, 219.

    BANKRUPTCY of the drawer or indorser when no excuse for want of notice. It is an inference by Mr. Chitty, from a case before Lord Thurlow entitled Ex parte Smith, 3 Bro. Ch. 1, that where the drawer or indorser is a bankrupt at the time of the acceptance or payment refused, it will be unnecessary to give notice to him or his assignee. This decision related merely to the effect of receiving a composition from the acceptor; in that case Lord Thurlow declared he had often decided that the doctrine of notice which held amongst solvent persons did not apply as between bankrupt estates.

                                        From.

    42 BAN

    From this case, Mr. Evans judiciously observes, there does not appear any sufficient reason to dispense with notice to the drawer who is a bankrupt or to his assignees, and still less for dispensing with such notice to the bankrupt indorser, or his assignees, where the drawer remains solvent, because in these cases their right to recover against the solvent parties may be prejudiced by the want of notice. But where all the parties are bankrupts, in such case no prejudice can arise. Evans, 91. See Excuse, Notice.

    BANKRUPTCY of different parties to bills and notes, how far the holder may prove against all. Where different parties to bills or notes have become bankrupts the holder it is said may prove the full amount against them all, in the same manner as he may proceed in different actions at law, until he have received a complete satisfaction, but if he has receive any part before he proves, the proof can only be for the balance; but it is conceived by Mr. Evans that in general a dividend must be paid to him for the full amount upon the respective proofs, although he is accountable as a trustee for the surplus. For more upon this, see Dividend, Proof.

                                        BANKRUPTCY

    BAN 43

    BANKRUPTCY of parties, for whom the indorser merely became surety, how far he may prove upon their respective estates.

    Mr. Cullen, in his late treatise, ascribes the difference and apparent contrariety of decisions, to a difference in the principle of the cases, and states the distinction according to his view of the subject as follows: – Where a person merely indorses a bill for the purpose of assisting another in raising money, and is therefore only a surety, his demand only arises by the actual payment of the money, which being after the bankruptcy, cannot be the subject of a proof; but if he have received the bill upon a real consideration, either mediate or immediate, there is a debt then subsisting to which his subsequent payment may refer." Vide Brookes v. Rogers, 1 H. B. 640; Howis v. Wiggins, 4 T. R. 714; ex parte Brymer, C. B. L. 164; ex parte Seddon, cited 7 F. R. 575.

    BANKRUPTCY, what may be proved in case of mutual debts. In the case of mutual debts the balance only is to be paid; a debtor of the bankrupt therefore may set off a bill or note which he holds against him, and is not compellable to pay the whole where he is a debtor

                                        and

    44 BAN

    and take a dividend as creditor. But this mutuality must exist at the time of the act of bankruptcy, for the state of the bankrupt's effects cannot afterwards be legally charged to the prejudice of the general creditors; and therefore a debtor can only set off bills or notes which he has received previous to the act of bankruptcy, and it is incumbent upon him to give proof of such receipt. Dickenson v. Evans, 6 T. U. 57.

    BANKRUPTCY of the drawee will be no excuse for neglect. The bankruptcy or known insolvency of the drawee of a bill or maker of a note will be no excuse for a neglect in the holder to make presentment, or to give, notice if the drawee had assets in his hands at the time the bill was drawn. Doug. 497, 515; 1 T. B. 408. But see Excuse, Neglect, Notice.

    BANKRUPTCY, what costs and charges may be proved under a commission. The costs and charges of protesting bills before an act of bankruptcy may be proved; but those which accrued afterwards cannot; nor is the holder of a bill or note entitled to any interest accruing after the date of the commission issued; nor where the act of bankruptcy is ascertained to

                                        any

    BAN 45

    any which might have accrued after the bankruptcy; notwithstanding. this however, the creditor may prove the full sum for which the notes were given, although he have received five per cent. discount. Coke, 173, 181, 182.

    BANKRUPTCY, how far the liability of parties to a bill is affected by it. The holder of a negotiable instrument is by the 7th G. 1. c. 31, and 5 G. 2. c. 30, entitled to prove it under a commission of bankruptcy, whether such instrument be due or not at the time of such bankruptcy, and he may in all cases prove it if in possession of it at that time; and he may either be petitioning creditor in respect to such bill, or prove it under the commission; and even where it is not due he may receive a dividend of the bankrupt's estate, in the same proportions as the other creditors, deducting interest only after the rate of five per cent. for the time the bill has to run; and in such case the bankrupt is discharged from all liability on the instrument in case of obtaining his certificate, as much as if it had been due before the act of bankruptcy. Cooke's Bank. Laws, 159,136.

    BANKRUPTCY. Accommodation bills, how

                      V             proveable

    46 BAN

    proveable under a commission. Where a person has put his name to a negotiable instrument for the accommodation of another, and another bill or note delivered to him as a security is in his possession at the time of the bankruptcy, he will be allowed to prove such bill, although the accommodation bill was not paid until after the bankruptcy; but in this case the dividends will be kept back until it appear what damages have been actually sustained, and whether the bankrupt's estate is exonerated by the holder from that payment to which he is himself liable. Cooke's Bank. L. 159. 366; 7 Durnf. & East, 366; Esp. 134.

    BANKRUPTCY of the acceptor, how the holder of a bill may prove if not in possession of it at the time of the bankruptcy. This point is to be collected not without some difficulty from the several cases which have been determined. When a bill has been drawn before, but indorsed after the secret act of bankruptcy of the acceptor to another person, it has been decided, that the indorsee, although he cannot set off the amount of the sum payable to any demand on him by the assignees, (the act of 5th Geo. 2, relating only to mutual debts due before the

                                        bankruptcy,)

    BAN 47

    bankruptcy ,) he may nevertheless be a petitioning creditor to the amount, or prove it under the commission. Nor will the circumstance of an indorsement after the bill became due, make in this case any difference. Cooke's Bank. Laws, 19, 164.

    BANKRUPTCY of the drawer, how far an acceptor knowing of this will be justified in paying his acceptance. A case has been decided, that if a person not having notice of the bankruptcy of the drawer, accept a bill drawn upon him after such bankruptcy, and even although he has afterwards heard of the bankruptcy, he will nevertheless be justified in paying his acceptance. 7 Durnf. & East, 711.

    BANKRUPTCY, how far supersedable by the statute of limitations. Although negotiable instruments above six years standing may be proved under a commission (because the debt still exists, and no person but the acceptor can avail himself of the statute of limitations); yet where the bankrupt himself applied to set aside the commission on the ground that the petitioning creditor's debt was barred by the above statute, the commission was superseded. 1 T. R. 405.

                                        BANKRUPTCY

    48 BEA

    BANKRUPTCY of a person for whom bills have been discounted. If the holder in this case prove the aggregate amount of the bills excepting them as a security, and any of the bills are afterwards paid in full, the amount of the bills must be deducted from the proof, and the future dividends must be paid only upon the remainder of the debt. Cooke 119, 120, 155, 156.

    BANKRUPT'S CERTIFICATE. – Any bill or note given by a bankrupt as a consideration for signing his certificate or withdrawing a petition against it, is illegal by statute, and such instrument is null and void. See Considerations illegal.

    BEARER. – If a bill or note be made payable to bearer it will pass by delivery only, without indorsement; and whoever fairly acquires a right to it may maintain an action against the drawer or acceptor. If, however, such instrument should be in fact indorsed, the indorser will in this, as in other cases, become chargeable as an original drawer. Bills payable to bearer are contradistinguished to those payable to order, which can only be transferred by indorsement and delivery. Bills payable to

                                        fictitious

    BIL 49

    fictitious payees are to be considered as bills payable to bearer. See Fictitious Persons, Forgery.

    BILLS of EXCHANGE. A bill of exchange is a written order or request, addressed by one person to another, desiring him to pay a certain sum of money at a time therein specified, to a third person or to his order, or it may be made payable to bearer.

    In the former case the instrument is negotiable by indorsement; in the latter, by delivery only. The holder of a negotiable instrument originally payable to bearer, may nevertheless restrain its general negotiability by a special indorsement; and a special indorsee may by a general indorsement make the instrument payable to bearer.

    BILLS OF EXCHANGE, their origin. Although writers are considerably divided in opinion with respect to this point, an inference drawn from the 5th Ric. 2. st. 1, 2, appears to warrant the conclusion that foreign bills were introduced into this country previous to the year 1381, and the earliest decision sanctioning this custom of remitting from abroad appears to have been in the case of Oaste v.

                      F 2             Taylor

    50 BIL

    Taylor, Cro. Jac. 306; 1 Roll. Abr. 6. Upon the first introduction of these instruments, our courts would only give effect to Bills made between Merchants Strangers and English Merchants; this however was soon extended to all traders, and finally to all persons indiscriminately. Chit. p. 12, 13.

    BILLS of EXCHANGE how divided. Bills of exchange are divided into foreign and inland: the former are those which pass from one country to another, and, the latter are transacted by parties all of whom are resident in the same country. Foreign bills are generally drawn in sets, to obviate the dangers of navigation; inland bills are sometimes, but very rarely, drawn in this mode.

    By the 9th & 10th Will. III. c. 17, and 3 & 4 Anne, c. 9, all distinctions between foreign and inland bills, as far as respects the custom of Merchants, were removed, and the established law of the country is in most cases applicable to both.

    BILLS of EXCHANGE, names and liability of the parties. The person making or drawing the bill is called the drawer, the person to whom it is addressed the drawee; who, when he has

                                        undertaken

    BIL 51

    undertaken to pay the amount, is termed the acceptor. The person in whose favour, the bill is drawn, is called the payee, who, if he appoint some other person to receive the money, is then termed the indorser, and the person so appointed the indorsee. The person who may happen to be in possession of the bill is called the holder.

    Any persons capable of binding themselves by a contract, may draw or accept a bill of exchange, or be. parties to a promissory note, or be in any manner concerned in negotiating either of these instruments. Upon this principle an infant cannot be sued upon a bill of exchange, because he is by law incapable of binding himself upon a contract, nor a married woman, except in certain cases, such as where by the custom of London she has the privilege of trading as a femme sole, and of course binding herself by contract. By several modern decisions it has indeed been held, that a married woman may contract so as to bind herself if living apart from her husband, and having a permanent separate maintenance secured to her by deed. 4 T. R. 361, 766; 5 T. R. 604; Esp. Ca. N. P. 6. These cases, however,

    52 BIL

    ever, and the principle upon which they are founded, have been questioned by the present Lord Chancellor.

    BILLS OF EXCHANGE, how favoured in legal construction. Bills or notes import a valuable consideration, which it is not incumbent upon the holder to prove; and in no case will the defendant be admitted to prove that he received no consideration, unless in an action brought against him by the person with whom he was immediately concerned in the negotiation of the instrument. 1 Bla. Rep. 445. Bills of exchange, although not specialties, are nevertheless possessed of the same privileges as other bonds or specialties, particularly when in the hands of third persons: and a bill of exchange derives these privileges, not from its form, nor from its being in writing, but to strengthen and facilitate that commercial intercourse between merchants of different countries, which is carried on through the medium of this species of security.

    BILLS OF EXCHANGE, how far operative with respect to persons incapacitated. Infants, married women, &c. being legally incapacitated from making a contract, bills of ex-,

                                        change

    BIL 53

    change, or promissory notes, shall not be good as against them, but such instruments will nevertheless be valid against all other parties competent to the instrument. Poth. Pl. 29; 2 Atk. 181, 182.

    Although an cannot bind himself in a bill or note even for necessaries, his contract is not absolutely void but voidable, and it has been said that a promise to pay the bill made after he attained his majority, would be equally operative against him as if of full age at the time the contract was made. Sd. Ca. 166. 201; 1 T. R. 648. See Infants, Married Women, Parties to negotiable instruments.

    BILLS OF EXCHANGE, essential to their validity. These instruments must be certain in payment, and not depend on any particular event or contingency which may render such payment doubtful. – They must be for payment of money only, and not for the payment of money and performance of some other act, such contract not being negotiable as bills of exchange according to the custom of merchants. 3 Wells. 213; 4 Mod. 242; Bull. N. P. 272.

    An instrument of the above description,

                                        although

    54 BIL

    although not negotiable, may nevertheless it is said support an action between the parties and be declared on between the original parties, as a bill. Per Kenyon, Ch. 1. in Alves v. Hodson, 7 T. R. 243.

    In cases however where the time only of payment is uncertain, the payment must be absolute, and at some time or other. Bills or notes upon such uncertainties with respect to time only have been held to be good: thus, in a contingent event of public notoriety respecting trade, &c. as if it be payable "two, months after a certain ship is paid off," or on the receipt of the payee's wages due to him from a certain ship; or if a bill be drawn payable six weeks after the death of the drawer's father; or to an infant when he shall come of age, specifying the day when that event is to happen – such will be valid and negotiable bills.

    Naming the fund also, "as an order to pay a certain sum of money as my quarterly half pay by advance – to pay a sum of money, &c. for value received out of the premises in Rosemary Lane," have been adjudged to be good bills. Ld. Raym. 1545; 7 T. R. 733.

    A note also whereby the maker promised to

                                        pay

    BIL 55

    pay "to A. B. 8/. so much being due from me to C. D. my landlady at Lady Day next, who is indebted in that sum to A. B." was judged not to be conditional, and consequently a good bill. Burn. 226.

    BILLS or NOTES given for goods, how far to be considered as good payment. If the seller of goods agree to take bills as payment, and to run the risk of being paid, this will be considered as payment whether such bills have or have not been afterwards paid. 7 T. R. 66. See Payment.

    BILLS OF EXCHANGE, or Promissory Notes, made abroad, requisites constituting their validity. Bills or notes made in a foreign country must be conformable to the laws of the country where they are made in order to be of any validity in this country. Upon this ground, a promissory note without a stamp given to a sailor for payment of his wages on performance of a voyage, was judged to be void, the laws of Jamaica, where the instrument was made, requiring a stamp. Alves v. Hodson, 7 T. R. 231.

    BILLS, or Notes, at what periods made payable. Bills or notes may be made payable upon

                                        demand,

    56 BIL

    demand, or at sight, or at a certain period after sight, or at a certain period after date. If made payable a certain number of days after date, the day of the date is not included in the computation; therefore a bill dated on the 1st of May, at ten days after date, becomes due on the day of grace after the 11th;. See Computation of Time, Days of Grace, Style, Usance.

    BILLS OF EXCHANGE how far necessary to express "value received." These words are by no means essential to the validity of a bill, but they are essential to obtain the benefit of the statute giving interest, damages, and costs. Evans, p. 11.

    For further particulars upon this head, see Acceptance, Date, Days of Grace, Indorsement, Stamp, &c. &c.

     

     

    C 57

     

     

    CASH NOTES are notes originally given by bankers to their customers as an acknowledgment for money received to their use: these notes are seldom issued except by country bankers, the use of them being superseded in the Metropolis by the introduction of checks. If issued by bankers in London they are called shop notes; these are in form similar to common promissory notes payable to bearer on demand; and from being payable to bearer or order on demand, they are considered the same as cash; they are also, like bankers' checks, transferable by delivery only. They may notwithstanding be negotiable by indorsement, in which case they resemble a bill of exchange, and

                      G             may

    58 CHE

    may be declared upon accordingly as such against the indorser; in all other respects they are analogous to bills of exchange, and are governed by the same principle.

    CHECKS OR DRAFTS ON BANKERS are instruments by means of which a creditor may assign to a third person, not originally party to a contract, the legal as well as equitable interest in a debt raised by it, so as to vest in such assignee a right of action against the original debtor. 1 H. B. 602. Being uniformly made payable to bearer constitutes a characteristic difference between these instruments and bills of exchange; and the legislature has considered them in a more favourable point of view by exempting them from the stamp duties. These instruments are equally negotiable with bills, although strictly speaking they are not due before payment is demanded. When given in payment they are considered as cash, and it is said maybe declared upon as bills of exchange, and that when indorsed they are similar to bills of exchange; and the moment this resemblance begins, they are governed by the same principles of law as bills of exchange.

    CHECKS given by country bankers for payment

                                        of

    CHE 59

    of a sum of money in a bill at a given date. It is observed by Mr. Evans, that the checks given by merchants of Bristol and other commercial places upon their bankers, directing them to pay a certain sum of money in a bill at a given date, have not any legal efficacy as negotiable instruments; the essence of which is, that they shall be for payment of money. Two cases, however, have occurred, viz. Gregson v. Backhouse, and Bolton v. Richards, in the latter of which it was held that such a check not being presented in reasonable time, the debt was discharged. This case was as follows: – A broker's clerk in Liverpool received a check of this kind in payment for goods on the 1st of ______ drawn upon Caldwell and Co. bankers in that place, and gave a receipt for the amount, expressing it to be paid in a bill at two months from this day. The check was presented on the 2d, and a bill given dated on that day. Bills at two months drawn by Caldwell and Co. on their correspondents Forbes and Gregory on the first were paid; but on the day corresponding with the second the stopped payment. Different merchants were examined respecting the usage of the place,

                                        but

    60 CHE

    but their accounts were not exactly uniform. Mr. Justice Lawrence left the question to the Jury, whether the presentment was made in a reasonable time, and laid some stress upon the language of the receipt. The Jury found a verdict for the defendant.

    CHECKS payable on demand, or where no time of payment is expressed. Such instruments are payable instantly on the presentment, without any indulgence or days of grace; but the presentment should be made within a reasonable time after the receipt, otherwise the holder not using due diligence to obtain payment, will be responsible, and the person from whom he received it will be discharged. Ld. Raym. 930.

    CHECKS, what shall be reasonable time for presentment. It has been for some time matter of discussion what shall be deemed reasonable time for the presentment of a check or draft, and whether this shall be determined by the Court or Jury. According to the current of decisions it appears (Mr. Chitty observes in his treatise), that this should be left to a Jury to determine; but that the decisions of a Jury, although composed of mercantile men, were found so much at variance, that the Court, for

                                        the

    CHE 61

    the sake of certainty, has laid it down as a rule, that it is for the Court, and not for the Jury, to decide what shall be a reasonable time for presentment. 1 T. R. 168; Appleton v. Sweetapple, Bayl. 65. This doctrine is, however, by no means universally assented to Doug. 515; 2 H. B. 568, 9.

    In some cases, keeping a check three, four, or five days was held to be not too long. 2 Free. 247, 257. In another case it was held that presentment for payment must be made within two days, Str. 508; and in more recent decisions it has been adjudged that presentment should be made the very day the check is received. Chitty 147, cites 1 Bla. Rep. 168. Brown v. Collinson, Beawes' Pl. 229; Kyd 45; Appleton v. Sweetapple, Bayl. 65.

    According to the opinion of merchants of the present day, a check on a banker ought to be presented for payment on the same day it is received, if given in the place where payable, and the distance or other circumstances will allow of it. But if this question is to be considered as dependent upon the usage of merchants as settled by judicial decisions, the resuit of these decisions is, that a presentment of

                      G 2             a draft

    62 CHE

    a draft or a banker's check, payable in the place where it was given, may be made at any time before twelve o'clock on the day after the receipt of it, or at any time within twenty-four hours after such receipt. Str. 415, 416, 910, 1175, 1248; Ld. Raym. 928; Holt 120; 1 T. R 168; Appleton v. Sweetapple, Bayl. 65; Brown v. Collinson, Beawes' Pl. 229; Kyd, 45. From this species of uncertainty it appears in all cases adviseable for the holder of a check to present it, where circumstances will allow it, on the same day it is received. If the party reside at a distance, it is a general rule that it should be presented as soon as possible, and the time for presentment is governed by the same principles as those which regulate the notice for non-acceptance of a bill of exchange. See Presentment.

    CHECK given in payment of a bill. If payment of a bill be made with a check, such payment will justify a person holding a bill in giving it up, although such check be afterwards dishonoured. 6 T. R. 12.

    CHECK if paid before due. If paid before due, in case of loss or accident the banker

                                        must

    COM 63

    must pay it over again. Da Silva v. Fuller, Sittings London, Easter 1776, Esp. Ni. Pri. 40. See Loss, Robbery.

    CHECK paid after notice of bankruptcy. The check of a trader, if paid by a banker with whom he keeps cash after notice of the act of bankruptcy, will be void, and the assignees may bring an action to recover it either from the banker or payee of the check, if such payee had notice of the bankruptcy.

    CLERK of a Notary. It appears doubtful whether the clerk of a notary be competent to note or protest an inland bill of exchange under 3 & 4 Ann. c. 9. s. 5; 4 T. R. 174; Ld,. Raym. 743.

    COMMISSION. – This is an allowance for discount, which in the French law is termed provision. It is usual for country banks to charge five shillings or ten shillings per cent. commission upon the bills which they discount, or any money which passes through their hands. This was once supposed to be usurious, but is now decided to be a lawful charge, being a reasonable compensation for their trouble, and for the capital which they employ in providing cash to answer such exigencies.

                                  COMMISSION

    64 COM

    COMMISSION OF BANKRUPT. Any person having a right of action upon any bill of exchange or analogous instrument, has a right to prove his debt under a commission of bankrupt.

    Creditors by bill, note, or other security payable at a future day, may, by 5 G. II. c. 30, take out a commission before the day of payment. A person to whom a bill or note is indorsed after an act of bankruptcy committed, is authorised to take out a commission, the debt subsisting before the act of bankruptcy, though in the person of a different creditor, Glaister v. Hewer, 7 T. R. 498. See Bankrupt, Bankruptcy, Dividend, Proof.

    COMPANY, incorporated. See Corporation, Partners.

    COMPARISON OF HANDS is not admissible evidence in a court to prove the signature of any of the parties to a bill of exchange or promissory note. See Evidence.

    COMPOSITION WITH THE ACCEPTOR. – If the holder of a bill of exchange compound with the acceptor, without the assent of the other parties, he by such conduct releases all the other parties from their responsibility. Cooke's Bank, Laws 168.

                                        COMPOSITION

    COM 65

    COMPOSITION by payee, how far excluding him from notice. If the payee lend his name to secure a composition from the drawer to a creditor, and take effects of the drawer to answer it, he is not entitled to notice. De Bert v. Atkinson.

    COMPUTATION OF TIME. – If a bill be drawn at a place using one style, and payable at a day certain at a place using another, the time it is said must be computed according to the usage of the country Where the bill is drawn, because the contract raised by the making of a bill of exchange is understood to have been made at that place, and should consequently be calculated according to the laws of it, Bayl. 68, otherwise according to the style of the place where it is payable. In the former case, the date must be reduced or carried forward to the style of the place where the bill is payable, and the time reckoned from thence, Mar. p. 22. Thus on a bill dated the 1st of March old style, and payable here one month after date, the time must be computed from the 19th of February new style; and on a bill dated the 19th of February new style, and payable at Petersburgh one month after date, from the 1st of March old style.

                                  COMPUTA-

    66 CON

    COMPUTATION by months. When the time after the expiration of which a bill is payable is limited by months, the calculation is always made by calendar and not lunar months; thus on a bill or note payable one month after date, and dated the first day of January, the month will not expire until the first of February.

    COMPUTATION by days. When the time is computed by days, the day on which the event happens is to be excluded. Bellasis v. Hester, Ld. Raym. 280; Lutw. 1591.

    Thus on a bill or note payable ten days after date, dated the 1st of January, the time does not expire, with the addition of the three days of grace, until the 14th.

    COMPUTATION when bill not dated. Where a bill or check is drawn payable at usance, or a certain time after date, and it is not dated, the time when it is payable must be computed from the day it issued, exclusive thereof, Bayl. 68, cites Ld. Raym. 1076. See Days of grace, Usance.

    CONDITIONAL ACCEPTANCE. See Acceptance conditional.

    CONSIDERATION. – All bills of exchange carry with them the same internal evi-

                                        dence

    CON 67

    dence of a consideration as contracts evidenced by bonds and other specialties. Upon this ground it is scarcely ever necessary for the plaintiff in an action upon a bill of exchange to prove that he gave a consideration for it; and it is in no instance open to the defendant to prove that he received no consideration, unless in an action brought against him by the person with whom he was immediately concerned in the negotiation of the instrument. 1 Bla. Rep. 445.

    CONSIDERATION legal. A debt of a third person, or a debt barred by the statute of limitations, by a discharge under an insolvent or fugitive act, by a bankruptcy and certificate, or by a composition, are good considerations, Popplewell v. Wilson, Str. 294; Ld. Raym. 389; 6 Mod. 309; Burr. 2630; Blackst. 703; Cowp. 290; Trueman v. Fenton, Cowp. 544; Birch v. Sharland, 1 T. R. 715; Cowp. 290. Past seduction has been deemed a good consideration, Turner v. Vaughan, 2 Wils. 339.

    CONSIDERATIONS illegal. Dropping a criminal prosecution, or suppressing evidence thereon, a recommendation to an office in the king's household (though of a private nature, and not within the statute of the 5th & 6th

                                        Edw.

    68 CON

    Edw. III.), a smuggling, usurious, or stock-jobbing contract, have been deemed illegal considerations, 3 P. Wins. 279; Harrington v. Du Chatel, Bro. C. C. 114; Guichard v. Roberts, Blackst. 445; 12 Anne, st. 2. c. 16; 7 Geo. II. c. 8.

    By 9 Anne, c. 14, § 1, money lost by gaming, or betting on the sides of persons so gaming, money knowingly lent for such gaming or betting, or money lent at the time and place of such play, to any person either then gaming or betting, or who shall during the play play or bet, is an illegal consideration.

    Cricket, horse-racing, or foot-racing against time, are considered as games; insuring in the lottery, not. Jeffryes v. Watts, 1 Wils. 220; Lynall v. Longbotham, 2 Wils. 36; Lewis v. Piercy, 1 H. Bl 29.

    CONSIDERATION, when the want of it cannot be insisted upon. Any person having received a consideration cannot insist upon the want of one if the plaintiff as, any. intermediate party between him and the defendant took the bill or note bona fide, and upon a good consideration. Morris v. Lee, B. R. H. 26 G 3.

    CONSIDERATION upon an accommodation bill.

                                        In

    CON 69

    In case of an accommodation bill, such circumstance is known to the indorsee, and he pays only part of the amount, he can in this case only recover the sum he has actually paid for the bill, Esp. Ni. Pri. 261; but where a bill is given for money really due from the drawee to the drawer, or is drawn in the regular course of business, the indorsee in such case, although he has not given the indorser the full amount of the bill, may nevertheless recover the whole, and be the holder of the overplus above the sum he has actually paid to the use of the indorser. Esp. Ca. Ni. Pri. 261.

    CONSIDERATIONS valuable, when party giving it cannot recover. Where a third person gives a valuable consideration for a bill, knowing it to be founded upon any of the abovementioned illegal considerations; he cannot recover upon it. Esp. Ca. Ni. Fri. 166.

    CONSIDERATION the illegality of, when it may be insisted upon. In those cases where the legislature has declared that the illegality of the consideration shall make the bill or note absolutely void, as in the case of signing a bankrupt's certificate, gaming, or usury, the defendant may insist upon such illegality though

                      H             the

    70 CON

    the plaintiff, or some party between him and the defendant, took the bill bona fide, and gave a valuable consideration for it, Str. 11.55. But unless where it has been expressly declared by the legislature that the illegality of the consideration shall render the instrument void, the illegality of the consideration cannot be set up as a defence in an action brought by a.bona fide holder, Sel. Ca. 71; and if the consideration upon which the bill was given originally was not so illegal as to render the instrument absolutely void, a subsequent illegal consideration of any description, given as the transfer, will not invalidate the instrument in the hands of a bona fide holder. Esp. Ca: Ni. Pri. 274.

    CONSIDERATION illegal, when not to be set aside. If the defendant suffer a judgment to go by default, upon a bill founded upon an illegal consideration, he will be precluded from the opportunity of objecting to the sufficiency of the consideration. Shepherd v. Charter, 4 T. R. 275.

    CONSTRUCTION of negotiable instruments. Courts of law, in consequence of the commercial importance of bills, have always most liberally construed them to be made effective

                                        according

    CON 71

    according to the intention of the parties, which should be rendered operative according to the law of the country where the contract is made, and not according to the law of that country into which any or all the parties may remove. The computation of time for payment is, however, in general, to be calculated according to the laws of that country where the bill is made payable, Beawes' Pl. 251; Mar. 102. A bill of exchange is considered as having been made at the place where it is payable, and consequently the contract should be construed and regulated according to the laws and usages of that place to which the contracting parties have understood themselves subject. Poth. H. 155. Sed qu.?

    CONSTRUCTION of bills, how different from that of deeds. In construing bills of exchange the Courts have followed a different rule than in the construction of deeds; in the latter the words and language must bear the sense which is attemped to be put upon them, and therefore in an action brought by the indorsee against the acceptor, and he could not prove an indorsement by the payee, evidence was admitted to prove that the payee was a fictitious person, and consequently could not indorse the instru-

                                        ment;

    72 CON

    ment; it was therefore adjudged that as the drawer and acceptor knew of this fact, the bill should operate against them as a bill originally payable to bearer, and the holder might recover against them as such. 1 K. B. 569.

    CONTINGENCY. – On account of the perplexity which would be thereby introduced into commercial transactions, bills or notes must not be made payable upon a contingency, they must, on the contrary, be made for the payment of a sum of money certainly, and at all events, otherwise they are not to be considered as negotiable instruments within the custom of merchants. It has however been held, that such instruments, although not negotiable as bills, may nevertheless be declared upon as such between the original parties to it, per Kenyon, Ch. 1. in Alves v. Hodgson, 7 T. K. 243. See Bills of Exchange.

    CONTRACT. – The contract in negotiable instruments is supposed to be made in the country where the instrument is made, the form of the remedy must nevertheless depend upon the laws of that country where such remedy is procured. See Obligation, Liability, Remedy.

                                        COR-

    COS 73

    CORPORATIONS may become parties to bills of exchange through the medium of their agents; with respect however to drawing bills, by 6th Anne, c. 22, § 9, and 15 G. 2. C. 13, § 13, it is enacted, that no corporation or partnership exceeding six persons in number (except the Governor and Company of the Bank of England), shall borrow, owe, or take up any sum or sums of money payable on demand at any less time than six months from the borrowing thereof.

    COSTS. – With respect to bills of exchange or promissory notes, in case of dishonour, the acceptor of the one or maker of the other are responsible to the holder for all costs incurred by any of the subsequent parties. In an action against the indorser, drawer, or acceptor of a bill, if he has any defence he pleads, if none, he either compromises the action or suffers judgment to go by default. If it be a bona fide bill, the least expensive and least troublesome mode is, to obtain a Judge's order grounded upon summons to stay proceedings upon payment of debt and costs. If separate actions are brought against the acceptor, drawer, and indorser, at the same time, the Court will stay proceedings, in any stage of the action, against

                                        the

    74 CRE

    the drawer or any one of the indorsers, upon payment of the amount of the bill and the costs of that particular action; but the action against the acceptor will only be stayed on the terms of his paying the costs in all the actions, he being the original defaulter. 1 T. R. 691; Str. 515; Bla. Rep. 749.

    CREDIT. – Any holder of a bill of exchange undertaking to give longer credit than such bill warrants upon the face of it, stands responsible for all consequences, and, by making the bill his own, releases all parties but the acceptor from their responsibility. If, therefore, the holder of a bill neglect to present it to the drawee at the time it becomes due, or, where no time is expressed, within a reasonable time after the receipt of the instrument, he shall not afterwards be permitted to resort to the drawer or indorser, whose respective contracts are collateral only to pay in default of the drawee,and not immediate and absolute like that of the acceptor, and who are always presumed to have sustained damage in consequence of the laches or neglect of the holder. 1 Salk. 127; Str. 1087; Bull. Ni. Pri. 470; 2 Black. Com. 470; Poth. Pl. 129; 7 T. R. 581, 582. See Holder, Notice, Presentment.

    75 D

     

     

     

    DAMAGE. – The holder of a bill of exchange, in excuse for any omission to give notice of the non-acceptance or non-payment of a bill of exchange, must prove that the person insisting upon the want of it did not sustain any damage, or must adduce such evidence as may afford an, inference to that effect, and thereby throw the onus probandi upon such person complaining of the want of notice.

    DAMAGE. If an acceptance be made payable at a banker's, and it has not been presented there by the holder, if the acceptor can prove that he has sustained any damage from such neglect, the acceptor will be discharged from his liability, Str. 1198.; sed qu.? See Presentment for Payment.

                                        DAMAGE

    76 DAM

    DAMAGE in bills returned protested from India. A person discounted a bill in India for 2800 pagodas at six guineas a pagoda, and it appeared that it was the constant course of trade, with respect to bills returned protested from India, to allow at the rate of 10s. the pagoda, and 5l. per cent. upon the amount, after thirty days' notice of non-payment, which includes interest, exchange, and all other charges. This was objected to as usurious, but was allowed as fair and reasonable by the Court of Kings Bench. Auriol v. Thomas, 2 T. R. 52; Evans 61, 62.

    DAMAGE recoverable in America upon bills drawn in this country. By a law of Pennsylvania it was provided, that if any person should draw or indorse any bill on Europe which should be returned protested for non-payment, the drawer and all others concerned should pay the contents, together with 20l. per cent. for damage. And it was decided by Lord Hardwicke, that a person here who had authorised his creditor in Pennsylvania to draw upon him was liable to the drawer for the money which he had paid in pursuance of this law, the same as if it had been by an express stipulation, and that it

                                        was

    DAT 77

    was a debt proveable under his commission. Ambler, 672. From this it may be observed generally, that the laws of other countries relative to negotiable instruments within their jurisdiction, are supported by the English Courts upon a principle of the law of nations.

    DAMAGES, nature of those recoverable upon dishonour of negotiable instruments. The amount of damages to be recovered by the plaintiff in consequence of the dishonour of a bill of exchange are the sum for which the bill is payable, interest in certain cases, and such expences as may have been occasioned by the dishonour, such as re-exchange, postage, &c. With respect to the principal money, no more can be recovered than is actually due upon the face of the instrument.(*) See Instalments, Interest, Expences, Postage, Re-exchange, Provision.

    DAMAGES upon bills payable by instalments. See Instalments.

    DATE. – It becomes necessary, as the time of payment is to be regulated by the date of the instrument, that this should be clearly expressed, and although it has been the common practice to use figures for this purpose, yet as

                                        These

    (*) [By the laws of several of the United States, the following damages are recoverable on Foreign bills returned. The New-England States, 10 per cent. New-jersey, no damages specified, Pennsylvania, 20 per cent. Maryland, 15 per cent.]

    78 DAY

    these will admit of alteration either through accident or design much more easily than words, which would invalidate the instrument in the hands of an innocent holder, it would be more adviseable to write the date in words at full length, Beawes' Pl. 3. and Mar. 2d Ed. 914; 4 T. R. 320. A date, however, except in the case of bills or drafts for the payment of twenty shillings or above, and less than five pounds, 17 Geo. 3. c. 30. (see Small Note Bill), is not an essentially component part of a bill of exchange; for where a bill has no date if the time be necessary to be enquired into, it shall be computed from the day it was issued, 2 Ld. Raym. 1076; 4 T. R. 337; Bac. Abr, tit. Leases, L. 1; Com. Dig. tit. Fact, B. 3.

    DATE the day of, in what cases to be reckoned exclusively. In bills payable at usance so many days after sight, or from the date, the day of acceptance or of the date must be excluded, Ld. Raym. 280; 6 T. R. 212; Beawes' Pt. 252. acc. Mayo v. Cooper, Fort. 376. contra.

    DATE of a protest, should be on the last day of grace, being the day when the bill becomes due, 4 T. R. 170. See Protest.

    DAY upon which acceptance is made, when

                                        necessary

    DAY 79

    necessary to be written. This is necessary upon all bills payable after sight.

    DAYS OF GRACE are certain days after the time limited by the bill, which the acceptor has a right to demand for payment of the bill; these days were so called because they were formerly gratuitously allowed, but now by the custom of merchants, sanctioned by the decisions of Courts of Justice, they are demandable of right. The number of these days varies according to the custom of different countries. Within the United Kingdom three days grace are allowed, in other countries more. If the last of the three days happen upon a Sunday, the bill becomes payable on the Saturday. [Same custom in all the U. S.]

    DAYS OF GRACE, how to be computed. These days must always be computed according to the laws and customs of the place where the bill becomes due. Thus at Hamburgh the day when the bill becomes due makes one of the days of grace; but this mode of computation is peculiar to Hamburgh. In Great Britain, Ireland, France, Amsterdam, Rotterdam, Antwerp, Middleburgh, Dantzick, and Koningsburg, Sundays and Holidays are always in

                                        -cluded

    80 DAY

    cluded in the days of grace, but they are not at Venice, Cologne, Breslau, and Nuremburg. In this country, if the third day of grace happen on a Sunday or great holiday, as Christmas-day, upon which no bills used to be paid, the party should demand the money upon the second day of grace; and in case it is not then paid, the holder is immediately to consider the bill as dishonoured, Chitty on Bills, p. 140, cites Ld. Raym. 374: Mar. 96; in other cases, a presentment before the third day of grace is considered as a mere nullity, Esp. Ca. Ni. Pri. 261.

    It does not appear to be determined whether days of grace are allowed upon bills payable at sight. It is observed by Pothier, that a bill payable at sight is payable as soon as the bearer presents it to the drawee, and Beawes, in his Lex Mercatoria observes, that bills made payable here at sight have no days of grace allowed, but that it would be otherwise in case of bills payable one day after sight. It is observed by Mr. Montefiore, a judicious Conveyancer and Notary Public, in the Appendix to his volume of Commercial and Notarial Precedents, that a bill payable at sight is in fact

                                        synonymous

    DAY 81

    synonymous with a bill payable on demand, and as such it is considered and acted upon by the merchants and bankers of this country.

    The practice of merchants and bankers is certainly entitled to respect, but a principle established by judicial decisions is entitled at least to equal consideration. All the writers upon this branch of jurisprudence (Mr. Montefiore excepted) are coincident in expressing a doubt upon this point; and the weight of judicial decision and high authority, if they do not make the scale preponderate in favour of the affirmative of this question, are at least sufficient to raise a doubt upon the subject.

    In the case of Dehers v. Harriet, Shower 163, cited by Mr. Chitty, it was taken for granted that days of grace are allowable upon a bill payable on demand, and the same point was also decided in the case of Coleman v. Sayer, 1 Barnard's Reports B. R. 303; Vin. Ab. tit. Bills of Exchange, B. J. Anson v. Thomas, B. R. T. 24 G. 3. Bayl. 23, n. 6. and in another case, where in an action upon an inland bill payable at sight the question was whether it was included under an exception in the stamp act of 23 G. 3. c. 49. § 4. in favour of bills payable on demand, the Court held it

                      I             was

    82 DAY

    was not, and Mr. Justice Buller upon that occasion mentioned a case before Chief Justice Willes, which was tried in London, in which a Jury of Merchants was of opinion that the usual days of grace were to be allowed upon bills payable at sight, I. Anson v. Thomas, B. R. T. 24 G. 3. cited by Bailey and Chitty.

    DAYS OF GRACE, how far the acceptor is allowed the last moment of the last day of grace. This point was incidentally discussed in the case of Leftley v. Mills, 4 T. R. 170. See Payment.

    DAYS OF PUBLIC REST not to be reckoned in computing the time of payment of negotiable instruments. If the last day of grace should fall on Sunday, or a day of public rest, the instrument will become due on the day preceding. The only days of rest which are publicly recognised in this country, except Sunday, are Christmas-day and Good Friday, the latter expressly by 40 Geo. 3. and probably although the point has never been litigated, days appointed by his Majesty's proclamation for public fasts or thanksgivings would be thus specially privileged. A late writer submits upon this subject the following query: – Supposing

                                        the

    DEA 83

    the third day should fall on Sunday the 26th of December, whether, on account of Christmas-day falling on the Saturday, only one day of grace would be allowed, and the bill become payable on the Friday, or whether four days would be allowed, and the time be extended to Monday?

    DEATH of the Holder of a bill of exchange or his agent will be an excuse for the want of a regular. notice of the non-acceptance or non-payment of a bill of exchange, provided such notice is given as soon as possible after the impediment is removed; and it is said that his executor, although he has not proved the will, must present the bill to the drawee, for the right of transfer in such case devolves to the executor or administrator of the holder; in which case, however, such personal representative would become personally liable in case of a deficiency of the testator or intestate's estate, because such transfer is in law considered as an admission of assets. 3 Wils. 1; Str. 1260; 2 Barnes 137. cites Bur. 1225; 1 T. R. 487; 1 H. B. 622.

    Although the drawer or indorsers, it is said, would be chargeable in case of the sudden

                                        death

    84 DEA

    death of the holder of the bill, in consequence of want of presentment (especially if payment would have been made upon a presentment in proper time), Mr. Evans nevertheless expresses some doubt, at least, upon the equity of this principle; for he observes, that although it be admitted that there is no laches in the holder, it must, he says, be equally observed that there is no laches in the other parties, and their engagement is only that a bill shall he paid if regularly presented. The accidents which occur, though unaccompanied by any fault, should fall upon the owner of the property affected by them, and not upon others who are equally innocent.

    DEATH of the drawee. Although it has been said that this will be a good excuse to the holder, the thing stipulated for having, by the act of God, become impossible; and although upon the authority of Molloy and Pothier Mr. Chittv observes that the holder should in this case enquire his personal representative, and there present the instrument; yet it is judiciously observed by Mr. Evans, that under these circumstances the true course seems to be to give immediate notice, in order that the drawer

                                        may

    DEB 85

    may remit a proper sum for payment. Mr. Evans further observes, that he does not think the representatives can be properly required to accept, for they are not bound to enter into a personal obligation, and cannot by any acceptance affect the property of the deceased, Evans, p. 51. It has been decided that provided the drawee has assets, his death will be no excuse for the want of notice, Russel v. Langstaffe, Doug. 497, 515; 1 T. R. 498; 2 T. R. 336; 2 H. B. 612. In all cases, whether of death, bankruptcy, loss, or other accident, it is adviseable and regular to give notice, which can only be dispensed with under circumstances peculiarly special, where the notice has been rendered impossible, or where none of the parties to the instrument can reasonably complain of the want of it.

    DEBT upon a negotiable instrument, when supposed to be contracted. In the case of Macarty v. Barrow, Str. 994; 3 Wils. 17, it was laid down by Lord Mansfield that the drawer of a bill contracted a debt at the very moment he drew it, and that the non-acceptance or protest did not raise any debt, but was only notice to the hoIder that the drawee could not pay the

                      I 2             same

    86 DEC

    same, consequently that the debt was proveable upon an intervening bankruptcy, and barred by the certificate.

    DEBT, see Action of Debt.

    DEBT action of; its advantages. See Action of Debt.

    DECLARATION upon a note or bill of exchange. The declaration may be founded either upon the instrument itself, with the addition of the common counts (which is most usual), or upon the consideration of the instrument, in which latter case the plaintiff declares upon the common money counts, or such of them as are adapted to the circumstances of the case, and may give the instrument in evidence to support his action.

    DECLARATION, what it must state. A declaration must state the contract and how it arose – the breach of such contract – the title of the plaintiff to recover – and it concludes by praying relief for the damages sustained by such breach.

    DECLARATION, how it should set forth the instrument. The instrument should be stated in the declaration as it was really made; any variance in this respect (except under special

                                        circum-

    DEC 87

    circumstances, where the rules of law prevent the instrument declared on to operate according to the words of it, such as where bills payable to fictitious persons may be stated as payable to bearer, against every person aware of that fail, Bristow v. Wright, Doug. 667.) will be fatal. In stating the instrument it is not usual to state more of it than is necessary to entitle the plaintiff to recover.

    DECLARATION, how it should set forth the contract. The plaintiff in his declaration must set forth the contract, and how the defendant made himself a party to it, whether by making, accepting, indorsing, or delivering the instrument personally or by his agent; in which latter case it is usual to state that either of these acts was done by the procuration of the agent properly authorised and employed for the purpose, 1 H. B. 313; 6 T. R. 659.

    DECLARATION, how it should set forth the plaintiff's title. The plaintiff suing upon any instrument must shew a sufficient title to enable him to maintain the action, 4 T. R. 471. Thus in an action by the assignee of a bill, it is incumbent upon the plaintiff to shew that the instrument authorises a transfer, except under

                                  special

    88 DEC

    special circumstances similar to the above stated with respect to the instrument; thus the payee of an instrument to his own order may state it to have been made payable to himself, 2 Show. 8. In stating the title of the plaintiff it is customary to state it as warranted by the instrument itself; and if he be a remote indorsee, to set forth the several indorsements; in cases, however, where the first indorsement is in blank, and the plaintiff is doubtful whether he can prove all the intermediate indorsements, it is usual to add a count stating the plaintiff as the immediate indorsee of the first indorser, and to strike out all the intermediate indorsers at the time of trial, Peacock v. Rhodes, Doug. 633; Roll. 296; Kyd, 206. An indorsee may declare against his immediate indorser, as on a bill of exchange made by the defendant, directed to the acceptor; and payable to the plaintiff, the act of indorsing being similar to making a new bill.

    DECLARATION, in case of a conditional acceptance, must state the event to have taken place. It is not necessary to allege that the instrument was delivered, it will be sufficient to allege that it was made. 7 T. R. 596.

                                        DECLARA-

    DEC 89

    DECLARATION. Utility of adding the cornmon counts. These should be added because they will in many cases supply the place of the count upon the instrument itself, and by adding these the plaintiff will be at liberty to go into the consideration upon which the instrument was given, and may recover upon the common counts, if the special count on the instrument should be found defective, or the proof should fail in the facts necessary to support it; thus where the plaintiff declared on a promissory note, and a quantum rneruit for work and labour, which was the consideration of the note, but the instrument not being duly stamped could not be read in evidence, and a verdict having been taken generally for the plaintiff, the Court thought the plaintiff ought to have an opportunity of recovering upon the other count, and granted a new trial, 7 T. R. 241; and in Wilson v. Kennedy, where the same point was determined, Lord Kenyon said that a promissory note was not like a bond, which merged the demand. Esp. 245.

    DECLARATION, when the count for money lent should be added. In an action at the suit of the payee of a bill of exchange against the

                                        drawer,

    90 DEC

    drawer, and an action at the suit of the payee of a promissory note against the maker, the count for money lent should be added, as being evidence of money lent by the payee to the drawer of the one and the maker of the other. Str. 725; BayI. 95; 6 T. R. 123. This count is also proper to be subjoined to the special one in an action at the suit of the indorsee against his immediate indorser. Kessebower v. Tirns, B. R. E. 22 G. 3. Bayl. 96. n.

    DECLARATION UPON BILLS, how differing from that upon promissory notes. In declaring upon a promissory note it is usual to state that the defendant became liable by force of the statute of Anne, which renders these instruments negotiable. 4 T. R. 155. The above statute, however, has been held to be only a concurrent remedy;.it is consequently not necessary for the plaintiff, although it is usual, to declare on the note; but in an action for money lent the same may be given in evidence. In declaring, either upon bills or notes, reference to the custom in any part of the declaration has been, though usual, deemed unnecessary. Ld Raym. 1542. Nor is it necessary to state an express promise, such being always implied

                                        wherever

    DEF 91

    wherever there is a legal liability. Carth. 509, Salk. 128; Hard. 53, 486.

    DEFENCE to an action upon a bill or note. The defence to an action upon a negotiable instrument may be founded upon the following facts, viz. – A mis-statement in the declaration – denial of the contract, or that the defendant was a party to it in the manner stated – the invalidity of the contract on account of the illegality of the considerations upon which it was founded – or from incapacity of the parties to bind themselves – discharge of the contract, or an excuse for non-performance of it – and disability of the plaintiff to sue, or protection of the defendant from being sued.

    DEFENCE, arising from mis-statement in the declaration. Those defences arising from informality, such as a mis-statement in the declaration of the original cause of action, may be taken advantage of by a general or special demurrer. The latter, and by far the more numerous species, may be either advanced in the shape of a special plea, or given in evidence under the general issue.

    DEFENCE arising from a denial of the contract. This species of defence denies that the instru

                                  -ment

    92 DEF

    ment declared upon was made, indorsed, or accepted; or that the defendant was a party to it. This defence, which amounts to the general issue, may be taken advantage of by the plea of non assumpsit, which puts the plaintiff upon the proof of the facts as stated in his declaration.

    DEFENCES admitting the contract, but alleging that the contract was void or voidable. Those defences which admit the contract, but allege it to be void, are founded either upon the want of consideration – the illegality of the consideration – or the incapacity of the parties to bind themselves by such contract. Defences founded upon illegal considerations are those which allege gaming, smuggling, stock-jobbing, usurious or vicious engagements (such as future prostitution, &c.), some of which are absolutely void, and others voidable.

    DEFENCES arising from voidable contracts. These are infancy or coverture, which may be given in evidence under the general issue or pleaded specially. With respect, however, to those cases where the circumstances of the defence lay more in the knowledge of the defendant than of the plaintiff, as in the case of infancy or coverture, it is not only fairer but

                                        more

    DEF 93

    more advantageous, either to plead these, or to give notice of them to the plaintiff previous to the trial, otherwise a new trial will frequently be granted, the expences of which may ultimately fall upon the defendant.

    DEFENCES which admit the contract but allege an excuse for non-performance. These allege negligence in the holder, such as want of presentment, or any other act whereby he is precluded from bringing his action.

    DEFENCES which allege a discharge of the contract, or an excuse for non-performance. These are negligence, accord and satisfaction, arbitrament, release, former recovery, tender, set off, or the statute of limitation, notice, presentment, &c. whereby the plaintiff has precluded himself from his right of action.

    DEFENCES which allege the disability of the plaintiff to sue, or exemptions of the defendant from being sued. The former of these is where the plaintiff is an outlaw, alien, enemy, or bankrupt, or that the defendant is a bankrupt, or insolvent.

    DEFENCES which need not be pleaded. Such defences which amount to a denial that the plaintiff had cause of action, are not pleaded,

                      K             but

    94 DEL

    but given in evidence under the general issue, which puts the plaintiff upon proving his case.

    DEFENCES which must in all cases be pleaded. It is customary to plead in all cases where the defendant admits that the plaintiff once had a right of action; but it is in all cases indispensable to plead bankruptcy, insolvency, tender, set off or the statute of limitations.

    DEFENCE, what will not constitute one for the acceptor. The want of presentment of a bill at the precise time when due, nor even before the commencement of an action, nor an indulgence to any of the other parties, will be no defence in an action, against the acceptor. Esp. Ni. Pr. 46; Bayl. 78, n. b. 108, n. a.

    DELAY, how far admissible. It is incumbent upon the holder of a negotiable instrument to use all diligence in procuring payment, or to give notice of refusal of acceptance or payment to the parties interested. Such delays, however, as are warranted by the common course of business, or occasioned by keeping a bill in circulation at a distance from the place where it is payable, have been held to be not improper; but any delay by keeping a bill locked up for any length of time, is not war

                                        -rantable.

    DEL 95

    rantable. 2 H. B1. 569; Muilman v. D'Eguino, 2 H. Bl. 565.

    DELIVERY. A bill or note payable to A. or bearer requires no indorsement, but is assignable by delivery only; and instruments originally payable to order, and indorsed so as to be payable to bearer, may be assigned either by indorsement and delivery, or delivery without any indorsement. On a transfer by delivery only, the person making it ceases to be a party to the instrument. Ld. Raym. 442, 724, 929, 930; 3 Salk. 68; Combe 57: As long as the first indorsement remains in blank, the instrument, as against the payee, the drawer, or acceptor, is assignable by mere delivery only, notwithstanding it may have upon it subsequent full indorsements. Smith v. Clarke, Peake 225.

    DELIVERY in case of loss or robbery. A transfer by delivery will convey a title to a bill or note, if assignable by mere delivery, in case of loss or theft, and the finder or stealer may convey a good title to such instrument. See Loss, Robbery.

    DELIVERY, the obligation implied by it. A transfer by delivery, if made for an antecedent debt, implies an undertaking from the indorser

                                        to

    96 DIS

    to the person to whom it is transferred, and every other subsequent transferree, exactly similar to that which is implied by drawing a bill, except that in case of a note the stipulations with respect to the responsibility of the drawer, do not apply.

    DEMAND of acceptance of foreign and inland bills, how to be made. See Presentment for Acceptance, Protest, Payment, Acceptance.

    DEMAND of payment. This need not be personal; it will be sufficient if made at the place by him appointed for payment, or of his agent who has been accustomed to pay money for him. Esp. 512. [2 H. Bl. Rep. 509. ]

    DEMAND of payment in case of death or removal. See Death of the Acceptor, Presentment, Removal.

    DISCHARGE. See Release, Notice, Protest, Receipt, Satisfaction.

    DISCHARGE, how far delay in presenting an acceptance payable at a banker's will operate as such. Where an acceptance was made payable at a certain banker's, and the bill was kept an unreasonable time after it became due, and the banker failed, it was held that the acceptor was discharged. The principle of this decision was

                                        probably

    DIS 97

    probably that such an acceptance was considered, to a certain extent, as equivalent to a check upon the banker, and the delay in presenting it induced the same consequences as a delay in presenting a common check. In a subsequent case, however, it was decided not to be necessary in an action against the acceptor to prove a presentment at a banker's, no special damage having arisen from any failure. Bayl. 78; Esp. 115; Chit. 134. See Discharge, Payment, Satisfaction.

    DISCHARGE by bail of the maker of a note. If a promissory note be discharged by the bail of the maker, this will be a discharge of all the other parties; and under such circumstances it has been decided that the indorsee cannot afterwards sue the indorser for the use of such bail. 1 Wils. 46.

    DISCHARGE in case of payment for honour. Any person may make a payment of a negotiable instrument for the honour of the drawer or indorsers, and such payment will be a discharge to all deriving a title under the person for whose honour it is made, but will give the party paying a right of indemnity against that person and all who are answerable over to him.

                      K 2             DISCHARGE

    98 DIS

    DISCHARGE from the holder of a bill, its operation with respect to the obligation. The holder of a bill being entitled to the respective credits of all the other parties for the same sum, may, as a necessary consequence of this right, give a discharge to any of them; but a discharge to the acceptor, either before or after the bill becomes due, is a complete extinction of all the credit under the bill, and it has no longer any legal operation, at least so far as respects the rights of the person giving such discharge.

    DISCHARGE to the last indorser, its operation. A discharge to the last indorser will not operate in favour of the preceding, nor of the drawer, nor acceptor, nor will in general the release to the drawer discharge the acceptor – nor if the holder take a prior indorser in execution, and afterwards liberate him out of custody, this will be no discharge to the subsequent indorser. 2 Bl. Rep. 1235.

    DISCHARGE, what will amount to this, by whom to be decided. This is a question merely of fact, and consequently what will amount to an assent of the holder to discharge the acceptor, and of course all the other parties, is a question for the decision of the Jury, arising

                                        out

    DIS 99

    out of the circumstances of the particular case. See Satisfaction, Drawer. For cases of construction upon this point, see Doug. 247.

    DISCHARGE, how far bills or notes given in payment shall be considered as a discharge of an antecedent debt. Bills or notes are to be considered as good payment of an antecedent debt, provided they be duly honoured. Kearslake v. Morgan, 5 T. W 513, and Richardson v. Rickman, cited ibid. If, however, these are not paid, they are to be considered as mere nullity. Upon this principle it was adjudged, that where a defendant was arrested, and discharged out of custody upon giving a draft which was refused acceptance, that the proceedings were perfectly regular in re-taking him upon the same writ. 6 T. R. 54. No action, however, can be maintained upon the original demand until these instruments have become payable. See Payment, Satisfaction.

    DISCHARGE, how far to be considered as good with respect to bills or checks given in payment. By the statute of 3 & 4 Anne, any person accepting such bills as had been referred to in a preceding section in satisfaction of a former debt, it shall be accounted a full payment, if

                                        the

    100 DIV

    the person accepting them does not take his due course to obtain payment thereof by endeavouring to get the same accepted and paid, and make his protest either for non-acceptance or non-payment.

    The above applies only to inland bills; but the principle of law is the same in all negotiable securities: thus, where a person received a note in payment, payable a few days after date, which he held four months, and in the interim the person upon whom the order was payable became insolvent, 2 Wils. 353; and in a more recent case, at Lancaster Assizes 1795, where a check given in payment, through negligence in its presentment, was held to be a sufficient discharge. See Extinguishment, Notice, Satisfaction, Waiver; see also 6 T. R. 139.

    DISCOUNT. No action can be brought upon transfer by delivery only, merely by way of sale of the bill, as in the course of a discount. 3 T. R. 757; Esp. Ca. N. P. 447. See Commission.

    DISSOLUTION OF PARTNERSHIP. See Partnership.

    DIVIDEND. Taking a dividend under a commission against the acceptor will not dis

                                        -charge

    DIV 101

    charge the several parties to the instrument from their respective obligations to the holder, provided he has been guilty of no laches, and given regular notice of non-payment to the parties entitled to such notice. See Bankruptcy, Proof.

    DIVIDEND, what may be received by the holder under a commission against the other parties. Where different parties to negotiable instruments have become bankrupts, Mr. Evans conceives that the holder is entitled to prove for the full amount of the respective debts, and receive dividends for the full amount upon the respective proofs, although exceeding twenty shillings in the pound: as, for example, if the holder prove upon the estate of the indorser, and receive fifteen shillings in the pound and a dividend is afterwards made on the part of the acceptor, of the like amount, he is to receive the fifteen shillings and pay ten shillings to the assignees of the indorser, who is only to be ultimately charged with the deficiency of the acceptor. If the dividend of fifteen shillings in the pound is first paid by the acceptor, and afterwards by the indorser, he can only receive the deficiency. It sometimes happens, from want of knowledge or attention, that the full

                                        dividends

    102 DRA

    dividends are paid on each estate, by which the holder obtains an improper benefit. Evans, 216. See Bankruptcy, Proof.

    DRAFT. See Check.

    DRAWEE of a bill of exchange, is the person upon whom the bill is drawn, and is supposed to have effects of the drawer in his hands; after he has accepted the bill he is termed the acceptor. The drawee is the person from whom payment is to be regulatly obtained, and the obligations of the other parties are a security for the bill being duly accepted and paid, provided the proper course is pursued by the holder.

    DRAWER, how he should subscribe his name. The drawer of a bill should either subscribe his name at the bottom, or it should be inserted in the body of the instrument. Beawes' Pl. 3; Ld. Ravm. 1376, 1542; and it must be written either by the person purporting to be the drawer or by some person by him authorised. If drawn or signed by an agent, it is usually signed in the following mode, "A B for C D," and if such agent do not express for whom he signs, he will be personally liable. And if signed by one person of a firm for himself and

                                        partners,

    DRA 103

    partners, it is usual, and perhaps necessary to sign it as follows, "A B for A B and Company," or to that effect.

    The bill or check should be completely filled up before the drawer signs his name to it, for if a person sign his name upon blank paper, stamped with a bill stamp, and deliver it to another to draw above the signature, he will be thereby bound to pay any sum which such stamp will carry. 1 H. B. 313.

    DRAWER of a bill, whether entitled to notice if the drawee have no effects. If the drawer of a bill have no effects in the hands of the drawee, although it is said to be a settled point that he is not entitled to notice, it is nevertheless adviseable in the holder to give the regular notice, notwithstanding he is told that the drawee has no effects, for it is incumbent upon him to prove the truth of the fact, and not merely that such an answer was given. Walwyn v. St. Quentin. But see Effects, Excuse for Notice.

    DRAWER, the nature of his obligation. The obligation of the drawer to pay is absolute and irrevocable; he is bound whether the bill be drawn on his own account or that of a third person, and upon the dishonour of the bill will

                                        immediately,

    104 DRA

    immediately, before the time specified for payment in such bill, be liable to an action, not only for the principal sum, but likewise, in certain cases, for damages and interest, as a consequence of the bill not being honoured. 2 H. B. 379; Poth. Pl. 82. Exclusive of this obligation to the payee, he is further bound to indemnify the acceptor, if he should have no effects in his hands, for any loss he may sustain in consequence of his acceptance. Poth. Pl. 97, 98, 99. This obligation, although in its nature absolute and irrevocable, may nevertherless be discharged by the laches or neglect of the holder. See Laches, Release, Waiver.

     

     

    E 105

     

     

    EFFECTS. The holder of a bill accepted by a person having no effects does not relinquish his right against the drawer by taking security from the acceptor and giving him time. Ex parte Smith, 3 Bro. Ch. 1. Cooke's Bankrupt Laws.

    EFFECTS, how far the acceptor having no effects of the drawer will be an excuse for notice. This very important question does not seem to have been distinctly settled, although from a case in the Common Pleas, Walwyn v. St. Quentin, 1 B. & P. 652, it has been inferred that in this case no notice is requisite. See this point more at large under the head Excuse for Notice.

                      L             EVIDENCE

    106 EVI

    EVIDENCE is that species of proof which the law requires from the party bringing his action, and it may be either written or parol. The evidence requisite must depend upon the nature of the action and the party against whom it is brought, whether as acceptor, drawer, indorser, &c. and it is a general rule that the best evidence shall be adduced which the nature of the case will admit.

    EVIDENCE in an action against the acceptor. The plaintiff must in this case prove that the defendant accepted the bill either verbally, or in writing; if the latter, the signature must also be proved. The plaintiff must further prove the necessary indorsements; and if the acceptance was made without sight, the signature of the drawer must be also proved. If, however, the bill was accepted or indorsed after sight, the mere production of the instrument so accepted or indorsed will be sufficient evidence of the instrument's having been made, because such acceptance or indorsement admits the defendant's hand writing. 7 T. R. 604, 612. Upon this principle it has been held that even proof of the forgery of the drawer's hand writing is no defence for the acceptor or indorser in an

                                        action

    EVI 107

    action at the suit of a bona fide holder, if the defendant accepted or indorsed the bill after the subscription of the drawer's name. Vide supra. In an action by the drawer against the acceptor having paid the bill, it is not necessary to prove that the acceptor had effects of the drawer's in his hands. 10 Mod. 36, 37; 1 Wils. 185.

    EVIDENCE necessary if the bill was accepted by an agent. The plaintiff must in this case prove that such agent or servant was legally authorized by his principal.

    EVIDENCE in an action, against several acceptors. The signature of each of the parties must be proved, Esp. Ca. N. P. 135; or that a partnership existed, and that the acceptance was made by one of them for himself and partners. Peake 16.

    EVIDENCE necessary in an action against the drawer or indorser of a bill or note. The signature of the defendant, or his agent lawfully authorised – the necessary indorsements between him and the plaintiff – the presentment – the non-acceptance or non-payment – and the notice; and, in case of a foreign bill, the defendant must also prove a protest, as well as notice. If the bill were transferable by deli

                                        -very

    108 EVI

    very only, the delivery must be proved: the plaintiff must also prove his interest in the bill, and how he became a party to it. The plaintiff must further prove that he used due diligence to obtain the money of the acceptor. Comyn 579. If the action be brought on the part of an indorser, having paid the bill, the plaintiff must prove that the instrument was returned to him, and that he paid it. Ld. Raym. 743. This should be proved by producing the bill with a receipt at the back of it. If it were an accommodation bill, and the acceptor sue the drawer, he must prove the hand writing of the defendant, and payment by himself, or something equivalent, such as his being in prison on a capias ad satisfaciendum.

    EVIDENCE necessary for payee in an instrument originally payable to bearer. In this case the delivery of such bill to himself need only be proved, although, under suspicious circumstances, the plaintiff claiming as bearer only, and not as original payee, may be required to prove that he, or some person between him and the person who transferred it to him, took it bona fide, and gave a valuable consideration for it. Bayl. 116.

                                        EVIDENCE

    EVI 109

    EVIDENCE necessary to support the special count. In proof of the allegation in the special count it is incumbent on the party to produce the instrument declared on, to prove that such instrument was made. In case of loss, however, it will be sufficient to produce a copy, or give parol evidence of its contents; but in either of these cases sufficient probability must be made appear to the Court, before the plaintiff will be admitted to read a copy, or give parol evidence of its contents. 1 Atk. 446.

    EVIDENCE of a bill is in possession of defendant. In this case the plaintiff must give him notice to produce it, otherwise he will not be allowed to go into evidence of its loss or contents. Esp. 50; Peake 165.

    EVIDENCE, where the instrument itself will be proof. In an action against the indorser or acceptor, where the bill was indorsed or accepted after it was complete, and he had seen it, the mere production of the instrument so by him accepted or indorsed will be sufficient evidence of its having been made, because such acceptance or indorsement admits the defendant's hand writing. 7 T. R. 604, 612. Upon this principle it has been adjudged, that even proof

                      L 2                  

    110 EXC

    of the forgery of the drawer's hand writing is no defence for the acceptor or indorser in an action at the suit of a bona fide holder, if the defendant accepted or indorsed the bill after the subscription of the drawer's name. 7 T. R. 604, 612.

    EVIDENCE of notice. See Notice.

    EVIDENCE in case of a lost bill. In an action against the drawer, confession that he made such bill was held sufficient. Hart v. King, 12 Mod. 309.

    EVIDENCE of protest. See Protest.

    EVIDENCE parol. See Witnesses. See also Action, Declaration, Signature.

    EXCHANGE is the difference in the value of money between two countries, and is dependent upon the relative abundance or scarcity of specie. If therefore any negotiation take place at Leghorn, where the merchants have large sums to remit to Marseilles and but little to draw from thence, there are more persons desirous of exchanging such bills for money. Consequently the want of bills upon Marseilles being greater than that of money, they are of more value (that is, the balance is in their favour one or two per cent. as the case may be,) and

                                        you

    EXC 111

    you must pay a banker at Leghorn the amount of that balance in order to obtain such a bill; for instance, upon a balance of one per cent. 1010l. for a bill of 1000l.

    The position that the price of exchange depends upon the relative scarcity or abundance of money, Mr. Evans observes was strikingly illustrated in the case of Hamburgh, about the latter end of the year 1799, where such large sums were due from Hamburgh to England, and so many bills dishonoured, and there was at the same time such a scarcity of cash to satisfy the holders of bills upon merchants in Hamburgh, that cash had risen to the price of near 20 per cent. and therefore, in order to obtain 100l. the amount which ought regularly to have been paid by the drawee in Hamburgh, a bill must have been given upon England for 120l. , and the person making the remittance was answerable to that extent, having his remedy over against all the antecedent parties. Evans 63.

    EXCHANGE, liability of the acceptor when the course has altered. It is said by Poth. Pl. 174, that in a foreign bill where the course of exchange has altered the acceptor will only be

                                        liable

    112 EXC

    liable according to the rate of such exchanger when the bill became due.

    EXCISE. In bills payable to the Excise it is customary to allow six days, exclusive of the three days of grace, upon paying one shilling to the clerks for their trouble; and it was held that this indulgence being universally known and allowed, the drawer was not discharged from his responsibility. Welfford v. Hawkins, Guildhall Sit. Hil. 1763; Esp. 59. Mr. Evans, however, doubts the principle of this decision, and conceives that the Commissioners of Excise have no more authority to introduce such a custom than the house of Messrs. Thellusson or any other mercantile house in the country.

    EXCUSE for notice, how far good, the drawer having no effects in the hands of the acceptor. It has been laid down by some writers, that where the drawer has had no effects in the hands of the acceptor, that notice in this case may be dispensed with. This proposition has been laid down founded upon the case of Walwyn v. St. Quentin, 1 B. & P. 652. Upon this it is necessary to observe, that from this case, which was decided upon special circumstances, the inference has been drawn too generally. It is a general

                                        principle

    EXC 113

    principle that notice is, in almost every case, necessary, and it should be under very special circumstances indeed that such notice should be dispensed with. Mr. Evans, after distinguishing the case of Walwyn v. St. Quentin from that of Bickerdike v. Bollman, (the principle of which was that the drawer had no right to expect payment by the drawee in whose hands he had no effects,) proceeds to observe, that to every substantial purpose, as to the point in question, the circumstance that a bill is drawn for the benefit of the acceptor is equivalent to the acceptor having effects of the drawer.

    "Much prejudice might (Mr. Evans observes) under the circumstances of this case, have resulted from the want of notice. At the distance of several years after, the drawer (a mere surety) had every reason to suppose the bill satisfied either by the acceptor who had engaged to pay it, or by the indorser, on whose account it was to be paid, might be unexpectedly called upon, and, by the death or bankruptcy of the other parties, deprived of the opportunity of redress; whereas, if immediate and regular notice had been given, he might have taken up the bill whilst he had the means of indemnifying him

                                        -self,

    114 EXC

    self. If the holder of a bill is to be excused from pursuing the regular course prescribed by law on account of the equitable circumstances between the other parties, of which he has no cognizance, and with which he has no concern, these circumstances should at least be viewed in the aggregate, and applied to the principle which renders them material. Where a variation of the circumstances destroys the principle, on account of which the exception is introduced, the exception should not be allowed to continue. It is much more satisfactory to advert to the opinion given by the same respectable authority, Lord Chief Justice Eyre. "That as the guarantee was given in that mode, the legal consequences would follow so as to limit its generality, and that perhaps it would be better to adhere to the rule than to relax it."

    EXCUSE for notice, in what cases admissible. The death of the holder, illness, or unavoidable accident, will be an excuse for notice, provided it be given as soon as possible after the impediment is removed; but notorious insolvency will be no excuse for not presenting a bill for payment to the person upon whom it is

                                        drawn.

    EXE 115

    drawn. 2 H. B. 609; nor is the holder of a negotiable instrument excused from making a protest, where such protest is necessary, and giving notice to the drawer and indorsers, although the notoriety of the failure of the drawee may appear to have given them sufficient information; for, as it is judiciously observed by a foreign jurist (Pothier), the formalities established by the laws to apprise persons of any fact cannot be dispensed with, and admit of no equivalent (ne se supplent point, et ne s'accomplissent par équipollence).

    EXCUSE in case of death or illness. See Death, Illness.

    EXECUTION, how far to be considered as a discharge. If the holder of a bill or note obtain judgment in an action against any of the parties liable, and take any of the parties to such bill or note in execution, this will not operate in favour of any of the other parties, but will discharge that person only (1 Wils. 46, 115; 2 Bla. R. 1235; 4 T. R. 825;) for taking a person in execution is considered, as far as he is concerned, as a full satisfaction for the debt. 5 Co. 86.

    EXECUTION against the goods. Although the

                                        holder

    116 EXE

    holder of a bill may sue out executions against the bodies of all the parties, he nevertheless can not issue a fieri facias to affect the goods of more than one. Stra. 515.

    EXECUTOR. It is said that the executor of a deceased holder of a negotiable instrument may present it for payment, although he have not proved the will. See Death, Presentment.

    EXPENCES recoverable in case of dishonour of negotiable instrument. The only expence recoverable by the holder of a bill for its dishonour are those of noting and protesting, and therefore he cannot demand more of any of the parties to the bill than a satisfaction for that expence. But there are other incidental expences which one of the parties may have been obliged to pay to the holder in consequence of the refusal of the acceptor, such as re-exchange, postage and commission. 2 T. R. 52. For each of these see the respective heads. See also Costs, Damages, Interest, Protest, Postage, Re-exchange.

    The above are the only legal charges, nor can any extraordinary expences which any of the parties may incur by travelling, or some advantageous engagement being delayed or defeated

                                        by

    EXT 117

    by the want of punctual payment, be legally demanded in any possible case. Lex Mer. 461; Poth. Pl. 63.

    EXPENCE of proving under a commission of bankruptcy. See Bankruptcy.

    EXPENCES of protest. By 9 & 10 W. 3. c. 17, sixpence only is allowed for protest upon inland bills, although it is customary to charge more. See Protest.

    EXTINGUISHMENT. If a person take a bill of exchange in satisfaction of a former debt, for which he has not a security of an higher nature than the bill, he will not be afterwards permitted to waive it, and sue the person from whom he received the bill for the original debt before the bill becomes due, because, under these circumstances, the receipt of the bill is an agreement to give credit to the person delivering the instrument for the length of time it has to run. Esp. Ca. N. P. 5, 106; 5 T. R. 513; Salk. 442; Skin. 416; Corn. Dig. tit. Merchant, F. 17.

    If however the person delivering such bill knew it to be of no value, it may be considered as a mere nullity, and the party sued may be taken a second time upon the same

                      N 1             writ,

    118 EXT

    writ, for the original debt. 12 Mod. 517; 6 & 7 T. R. 52, 64. See Arrest.

    EXTINGUISHMENT of right of action. If the holder of a bill make the acceptor his executor and dies, the right of action against all the parties is by this act extinguished. Poth. Pl. 191; 1 Rol. Ab. 922; Plowd. 184, 543; 2 Bla. Com. 511, 512; and if the holder of a bill or note accept a bond from the drawer in satisfaction of it, this will discharge the other parties. 3 Mod. 87. See Discharge, Satisfaction.

     

     

    F 119

     

     

    FACTOR. If the factor of an Incorporate Company draw a bill on such Company, and one member accept it, this acceptance will not bind the Company, because it is a private act of the party, and not a public one of the Company; and upon this principle, if several persons, each acting in his individual capacity, employ one factor, who draws a bill upon all which is accepted but by one, such acceptance will not bind the rest. Bull. N. P. 279; Mar. 2. Ed. 16; Beawes' Pl. 228; Molloy, b. 2. c. 10. § 18. See Agent, Partner.

    FEME COVERT, see Married Women.

    FICTITIOUS NAMES. Bills payable to a

                                        fictitious

    120 FOR

    fictitious person, or his order, are in effect payable to bearer, and may be declared on as such against all the parties knowing such payee to have been a fictitious person.

    Any person indorsing the fictitious name upon a bill to give it currency would be guilty of forgery. 3 T. R. 174, 182, 481; 1 H. B. 313, 569.

    Any words in a bill, or extraneous facts, which might induce an inference that the person making a bill intended it to be negotiable, although payable to a fictitious payee, will give such bill a transferable quality.

    FOREIGN BILLS, see Bills of Exchange.

    FORGERY. The forgery of an indorsement in a bill transferable by indorsement only will convey no interest, and therefore any person getting possession of it by a forged indorsement will not acquire any interest in it, although he was not aware of the forgery, and consequently the original holder may in such case recover against the acceptor and drawer, although the acceptor may have paid the bill; and if the person attempting to derive an interest under such indorsement sues the acceptor, he will be admitted to prove, that the

                                        indorse.-

    FUN 121

    indorsement was not made by the person entitled to make it. 4 T. R. 28; 1 T. R. 607.

    FORM of a bill of exchange, promissory note, acceptance, indorsement, protest, &c. See Appendix.

    FRAUD, see Overdue Bills. (*)

    FUND. If a bill of exchange be made payable out of a particular fund, which possibly may not be productive, it will not, in the first instance, be negotiable; and there is considerable doubt whether it can become so by any subsequent circumstance. Kingston v. Long, B. R. M. 25 G. 3; Bayl. 8. acc. Lewis v. Orde. 1 Gilb. Evid. by Loft 179. sembl. contra.

    * * * * * * *

    G

    GAMING, see Considerations Illegal.

    GRACE, see Days of Grace.

    (*) (A general intent to defraud is sufficient to constitute the crime. For if a person does such an act, the probable consequence of which is to defraud, that constitutes a fraudulent intent in the eye of the law. 3 T. R. 176.)

                      M 2            

    122 H

    HOLDER. The holder of a bill of exchange is the person who is in possession of it either by indorsement or delivery, or both, and entitled to receive payment either from the drawee or acceptor. (*)

    HOLDER, conduct he ought to pursue. It is in some cases necessary, and in all adviseable, unless the bill have been previously accepted, to present it to the drawee for acceptance. If the drawee refuse to accept, the holder ought, with all possible dispatch, to give notice of such refusal to the various persons who became parties to the bill antecedent to himself.

    Unless a bill be drawn payable within a specified time after sight, although it appears from

                                        some

    (*) [In England he is not considered as an assignee; Secus, in Pennsylvania. Doug. 614. 4 Dall. 53.]

    HON 123

    some authorities that it is not incumbent upon the holder to present a bill (unless payable after sight) before it is due, it is nevertheless, in all cases most adviseable to get it accepted as soon as possible, not only because another security is thereby added to the debtor, but because by acceptance only the person on whom the bill is drawn becomes debtor, and responsible to the holder. See Notice, Presentment, Protest, &c.

    HOLDER, how he should act in case of partial acceptance. If upon presentment for acceptance the drawee has undertaken to pay a part, and the holder has given notice of such partial acceptance to the other parties, the holder, it is said, when such bill becomes due, should receive of the drawee the sum for which he accepted, and cause a protest to be made for non-payment of the sum remaining due. Mar. 68, 85, 86.

    HOLDER, his duty in case of loss, see Loss. See also Notice, Presentment, Protest, Acceptance, Indorsement, Transfer, &c.

    HONOUR, see Acceptance for Honour.

    124 I

     

     

    ILLEGAL CONSIDERATIONS. If a bill or note be given on an illegal consideration, or if it be fraudulently obtained, it is of no avail either to the original payee or to the person receiving it from him with notice of its original defect: and a late writer is of opinion, if the several persons through whose hands the instrument passes are all privy to the illegality of the original transactions, that such illegality will be a complete bar to the holder. But it has been decided in the case of Parr v. Elliason, East 92, that a person receiving a bill from an indorsee in the fair course of trade, and even with notice of the original illegality, shall be allowed to recover, for he succeeds to the rights

                                        and

    IND 125

    and privileges of the indorser, and these would be most unduly and unequitably restrained if he had not a complete power to transfer. See Considerations Illegal.

    ILLNESS, how far an excuse for notice. Illness of the holder or his agent will be an excuse for the want of the regular notice of the dishonour of a negotiable instrument, provided such regular notice be given as soon as possible after the impediment is removed.

    [INDEBITATUS ASSUMPSIT. Vid. Assumpsit.]

    INDORSEMENT is that act by which the holder of a negotiable instrument transfers or assigns his right to another person, and this may be done either simply by delivery, where the instrument is payable to bearer, or by indorsement and delivery where it is payable to order.

    Indorsements are of three species, viz, in blank, in full, and restrictive.

    INDORSEMENT in blank. This is the most usual species of indorsement; it mentions no name, but the holder may write over it what name he pleases, and so long as it continues in blank it makes the instrument payable to bearer. And although it has been adjudged that such an indorsement does not transfer the property and interest in the instrument without some further

                                        act,

    126 IND

    act, it gives the indorsee, as well as any other person to whom it is afterwards transferred, the power of making himself assignee of the beneficial interest in the instrument, by filling it up payable to himself (as by writing over the indorser's name "pay the contents,") which may be done at the time of trial. 2 Str. 1103; 12 Mod. 244; 1 Salk. 127, 130; 1 Show. 163; Ld. Raym. 443; Comyn. 311; Barnes 453; Bull. N. P. 275, 278. As long as the first indorsement continues in blank, the instrument, as against the payee, drawer, and acceptor, is assignable by mere delivery, notwithstanding there may be upon it subsequent full indorsements.

    INDORSEMENT in full. In this indorsement the name of the person in whose favour it is made is mentioned, and this indorsement may restrain the negotiability of the instrument.

    INDORSEMENT restrictive. A restrictive indorsement has either express words which make it restrictive, or it is made in favour of a person incapable of making any further transfer. "Pay the contents to A. B. only," is a restrictive indorsement. A restrictive indorsement precludes the person in whose favour it is

                                        made

    IND 127

    made from making a transfer so as to give a right of action either against the person making it, or any of the antecedent parties, or where such restriction is expressed upon the instrument, from retaining a payment to their prejudice. Archer v. Bank of England. The mere omission of words to give a power of transfer will not make an indorsement restrictive.

    INDORSEMENT, how to be made. No form is required for an indorsement; it will be sufficient that the name of the indorser be written upon the back of the instrument, which is most usual, or any other part of it, either by the party making it or some other person duly authorized as his agent. An indorsement by a person not well known ought, in all cases, to state the place of his residence. Bull. N. P. 276.

    INDORSEMENT cannot be made for less than the full sum, unless part of it has been paid. An indorsement cannot be made for less than the full sum appearing to be due upon the instrument transferred after it has been accepted, because a personal contract cannot be apportioned, and it would make the acceptor liable to two act

                                        -ions.

    128 IND

    tions. Ld. Raym. 360; Carth. 366; 12 Mod. 213; Salk. 65. If part of the bill, however has been paid, it may be indorsed over for the residue. 2 Wits. 262; 1 Salk. 65; Ld. Raym. 360; Carth. 466; 12 Mod. 213.

    INDORSEMENT before time of payment mentioned, its operation. Such an indorsement will preclude the party making it from saying that his indorsement was prior to the completion or issuing of the bill or note, even against a person who knew at the time he took it in what state the bill was at the time of the indorsement. Russet v. Langstaff, Doug. 496, 514.

    INDORSEMENT upon bills or notes for the payment of less than 5l. See Small Notes.

    INDORSEMENT if forged, in what cases it will confer no title. See Forgery.

    INDORSEMENT after bill or note becomes due. See Fraud, Overdue Bills.

    INDORSEMENT, how to be proved in evidence. The plaintiff claiming by indorsement should prove the first indorsement by calling a witness to prove the indorser's hand writing, in the same manner as the acceptor's hand writing must be proved. A confession of such signature has been held to be sufficient evidence

                                        against

    IND 129

    against the party making it. Cooper v. Le Blanc, Str. 1051; Ld. Raym. 742; but not against any other party. Hemmings v. Robinson, 1 Barnes, 517; and this will be sufficient if made pending a treaty for compromise. Waldridge v. Kunnison, Esp. 143. if the first indorsement was in full, the signature of the indorser must be proved; but if the first indorsement was in blank, it is not necessary to prove any of the subsequent indorsements, although they were in full; but in this case all the subsequent indorsements must be struck out at the time of the trial.

    INDORSEMENT, its legal obligation. An indorsement implies an undertaking from the indorser to the person in whose favour it is made, and every other person to whom the bill or note may be afterwards transferred, exactly similar to that which is implied by drawing a bill, except that in the case of a note the stipulation with respect to the drawer's responsibility does not apply. A transfer by indorsement is an act similar to making a new bill in all its legal consequences, and the indorser may, in almost every respect, be considered as a new drawer on the original drawee;. upon which principle

                      N                  

    130 INS

    it has been decided, that a promissory note indorsed may be declared on as a bill of exchange. Str: 478; 1 Salk. 133; 3 Salk. 68; 2 Show. 441, 495, 501; 2 Burr. 674, &c. &c. A transfer by indorsement vests in the assignee a right of action on the bill against all the precedent parties to it.

    INFANT, his incapability of being party to a negotiable instrument. No bill of exchange can properly be made or indorsed by an (in his own right), nor, as he is incapable of making himself responsible for the contract, properly addressed to him. Bayl. 24. Although, however, such contract by an is voidable, yet payment of such a bill to a minor, it is said, would be a valid payment (Poth. Pl. 166,) and an may sue for such payment. Poth. Pl. 166.

    INLAND BILLS, see Bills of Exchange.

    INSOLVENCY. The insolvency of the drawee or maker of a promissory note is no excuse for notice. See Excuse, Notice.

    INSTALMENTS, in what cases the whole amount is recoverable by the holder. In a bill or note payable by instalments, where it contains a clause that on failure of payment of any one

                                        instalment

    INT 131

    instalment the, whole shall become due, the holder is entitled to recover the whole amount of the several instalments; but where the instrument does not contain such a clause, it is doubtful whether the holder can legally take a verdict for more than the instalment due. According to the cases of Beckworth v. Nott, Rudder v. Price, 1 H. B. 551; and Cro. Jac. 565; Jenk. 333., the plaintiff is entitled to the whole sum for which, the note was given; but according to other cases, particularly that of Ashford v. Hand, Andy. 370, the plaintiff is only entitled to the instalments due at the time of commencing the action. Where, however, all the instalments, are due at the time of the trial, the Jury, for the sake of avoiding another action, will frequently give the full sum in damages.

    INTENTION of the parties to negotiable instruments. Bills and notes are always so construed by Courts as to give them effect according to the intention of the contracting parties.

    INTEREST, from what time payable, and how to be computed. A bill or note is generally understood to carry interest only from the time of the demand for payment, unless the delay

                                        was

    132 INT

    was occasioned by the defendant, as his being out of the kingdom at the time the instrument became due, 6 Mod. 138; Poth. Pl. 63, 64.

    Interest is in some cases recoverable from the date of the instrument, D. Mar. 2d edit. 13. Blaney v. Bradley, Blackst. 761; but in general from the time when it would have been regularly payable down to the time when the plaintiff will be entitled to final judgment. Bayl. 91.

    It was observed by Lord Mansfield, in the case of Robinson v. Bland, Burr. 1085, that the general practice of the associates in taking damages in cases where the debt carried interest was, to stop at the commencement of the action, but that his practice was not founded in law, but in mistake and misapprehension; and that, in point, of justice, interest should be carried down quite to the actual payment of the money. But as that could not be, it should be carried down to the time when the demand was completely liquidated by the judgment being signed; by which means complete justice was done to the plaintiff, and the temptation of a defendant to make use of all the unjust dilatories of chicane was taken away; for if interest were to stop at the commencement of

                                        the

    INT 133

    the suit, where the sum was large, the defendant might gain by protracting the cause in the most expensive and vexatious manner."

    INTEREST, how computed upon instruments payable on presentment. Upon a bill or note payable on presentment interest must be computed from the presentment (Blaney v. Bradley); in which case the Court held that interest was due upon all bills of exchange and notes of hand payable at a day certain, or after demand if payable on demand. See also Bunb. 129; 2 T. R. 58.

    INTEREST, in what cases precluded. A neglect to procure a protest upon any inland bill for the payment of 20l. upon which a protest might have been made, will, it is said, preclude the holder from recovering such interest from any person entitled to notice, of the non-acceptance or non-payment of such instrument. 3 & 4 Anne, c. 9. § 5.

    INTEREST upon East India Bills. See Damage upon bills returned protested from India, p. 76.

    INTEREST under a commission of bankruptcy. The holder of a negotiable instrument is not entitled to any interest accrued or incurred after

                      N 2             the

    134 INQ

    the commission issued, nor where the act of bankruptcy to which the commission relates is ascertained, to any accrued or incurred after that act of bankruptcy. Ex parte Moore, 2 Bro. Cha. Ca. 597. See Bankruptcy.

    INQUIRY. See Judgment by default.

    I. O. U. – The common memorandum of I. O. U. has been decided not to amount to a promissory note. Esp. Ca. N. P. 426.

     

     

    J 135

     

     

    JOINT TRADERS, see Partners.

    JUDGMENT BY DEFAULT. In cases of judgment by default it is now the practice of the Courts of King's Bench and Common Pleas to refer it to the Master to compute principal, interest, and costs. This however, has been refused to be adopted in the Court of Exchequer. 1 Anstr. Rep. 249, and in the other Courts it is still necessary to sue out a writ of inquiry, where the bill is payable in foreign money, the value of which can only be ascertained by a Jury. 4 T. R. 493; 5 T. R. 87; Tidd. 485.

    136 L

     

     

    LACHES, see tit. Neglect.

    LIABILITY of the parties to negotiable instruments. See Obligation.

    LOSS by the holder of a bill of exchange. If the holder of a bill or check, transferable by mere delivery, loses it and it comes to the hands of some person who was not aware of such loss for a good consideration, previous to its being due, such person, although deriving his interest in the instrument from the person finding it, may maintain his action against the acceptor, or other parties to the instrument, and the original holder, who lost it, will consequently forfeit all right of action. 12 Mod. 517; 3 T. R. 759; Holt 121; Ld. Raym. 738; Peacock v. Rhodes, Doug. 633. (*)

                                        LOSS,

    (*) [This applies also to promissory notes. 1 Burr. 452. 3 Burr. 1516. 1524. 1 Bl. Rep. 485. 4 Bac. Abr. 705. 4 Dall. 51.]

    LOS 137

    LOSS, duty of the holder in this case. The holder of a bill, whether transferable by delivery or not, ought, in all cases of loss, immediately to give notice of such accident to the acceptor and all the antecedent parties. Poth. Pl. 132; and if such bill were transferable by mere delivery, such holder should also give public notice of such loss, in order to prevent any person from taking it. Beawes' Pl. 179. It is said by Marius, that the holder of the bill which has been lost should, in the presence of a Notary and two Witnesses, acquaint the acceptor with such loss, and signify to him that at his peril he pay it to none but himself or order. The same writer further observes, that no person should refuse to pay a bill to the loser which he has accepted, on the ground of its having been lost, if he have sufficient security and indemnification offered to him; and that if he should, under such circumstances, he will be liable to make good all losses, re-exchange, and charges. Marius 77, 80; Beawes' Pl. 182, 185; Vin. Ab. tit. Bills, R. Tercese v. Geray, Fin. Rep. 301.

    LOSS, in what case the acceptor is bound to give another bill. By 9 & 10 W. 3. c. 17. § 3, the

                                        holder

    138 LOS

    holder of a bill of above 5l. expressed for value received, and payable after date; may, in case of loss, demand of the drawer another bill of the same tenor with the original one, upon giving security, and indemnifying him against all persons whatsoever in case the lost bill should again be found.

    LOSS of one part of a foreign bill by the drawee. If one part of a foreign bill drawn in sets should be lost by the drawee, he is bound to give to the holder or his order a promissory note for payment of the amount of the bill on the day it becomes due, on delivery of the second part if it should arrive in time; if not, upon the note, which is in all cases to have the law and privileges of a bill of exchange: and if the acceptor shall refuse to give such note, the holder must protest immediately for non-acceptance, and when due, must demand the money, although he. has neither the note, nor the bill, which, if refused, a protest must regularly be made for non-payment. Beawes' Pl. 188; Mar. 121; Bul. N. P. 271.

    M 139

     

     

    MARRIED WOMEN, by whom a bill or note indorsed to them is to be transferred. If a bill or note be made or indorsed to a feme sole, and she afterwards marry, the right of transfer vests in her husband, he being by the marriage entitled to all her personal property. 1 Sty. 516; 3 Wils. 53 ; Sd. Ca. 96; 10 Mod. 246.

    It is said by Pothier (Poth. Pl. 167), that payment to a married woman by a person knowing she was married will not discharge the person making it.

    MARRIED WOMEN their incapacity to become parties to bills of exchange. See Bills of Exchange, p. 52.

                                  MONTH

    140 MON

    MONTH, how to be computed in negotiable instruments. When bills are made payable at one month, or more after date, the computation must be by calendar, and not lunar months. Where one month is longer than that which precedes it, it is said to be a rule not to go into a third month in the computation. Thus on a bill dated 28th, 29th, 30th, or 31st of January, and payable one month after date, the time expires on the 28th of February in common years, and in the three latter cases, in leap-year, on the 29th. Chitty, 144, cites Mar. 75; Kyd 6.

     

     

    N 141

     

     

    NEGLECT to give notice of a bill's being dishohoured within a reasonable time, will discharge the parties from their respective obligations. Burr. 2670; 1 T. R 712; Verito 45; Poth. Pl. 133. See Notice.

    NEGLECT of presentment. If the holder of a bill neglect to present it to the drawee for payment at the time it becomes due, or, where no time is specified, within a reasonable time after the receipt of the instrument, he shall not afterwards resort to the drawer or indorsers, whose contracts are collateral only to pay in default of payment by the drawee, and not immediate or absolute, and who are always

                      O             presumed

    142 NEG

    presumed to have sustained damage by the holder's laches. 2 Burn. 669; 7 T. R. 581.

    NEGLECT of presentment or notice; occasioned by the sudden death or illness of the holder or his agent. See Death, Excuse, Illness.

    NEGOTIABILITY. It is not essential to the validity of a bill as an instrument that it should be transferable from one person to another. 6 T. R. 123; 7 T. R. 243. Smallwood v. Rolfe, Set. Ca. 18. If, however, it be intended to be made negotiable, the operative words of transfer should always be inserted therein; for unless a bill contain some words empowering the proprietor to assign it, it cannot be transferred so as to give the assignee a right of action against any of the parties to the instrument except the assigner. 1 Salk. 133. Any words, however, or extraneous facts, from whence it can be inferred that the party making the instrument intended it to be negotiable, will give it a transferable quality as against him; and though no words are to be found upon the instrument authorising a transfer, yet it will always have the same effect against the party making it as if he had power to assign. The usual modes of making a bill transferable are,

                                        by

    NOT 143

    by drawing it either payable to A. B. or order, or to A. B. or his assigns, or to A. B. or bearer, or to the drawer's own order.

    NON-ACCEPTANCE, OR NON-PAYMENT, to whom notice must be in these cases given. See tit. Notice, Protest, &c.

    NOTARY PUBLIC, see Noting, Protest. For his Fees of Office, see Appendix.

    NOTES, see Cash Notes, Bank Notes, Promissory Notes, Small Notes.

    NOTICE is that information which the holder of a negotiable instrument is bound to give to all the antecedent parties if the drawee refuse to accept, or, having accepted, if he refuse payment, or if he offer an acceptance varying from the tenor of the bill; in either of the above cases the bill is dishonoured, and the holder, in case of neglect to communicate notice within a reasonable time, will not be at liberty to resort to the other parties, who by such negligence will be discharged from their respective obligations. Burr. 2670; 1 T. R. 712; Ventr. 45; Poth. Pl. 133. The right of the drawer or indorsers to receive notice in case of the bill's being dishonoured is so strong a principle of law, and in all cases so indispens

                                        -able,

    144 NOT

    able, that nothing but what has been by the act of God rendered impossible, can be an excuse for the want of it, unless, indeed, in those particular cases where the parties who would otherwise have been entitled have by their own act incapacitated themselves to insist upon the want of it. It is not material who informs the drawer of non-acceptance or non-payment of the bill, because notice is merely required that he may have recourse to the acceptor. Shaw v. Croft, per. Ld. Kenyon, Sit. after Trin. 1798.

    NOTICE of conditional or partial acceptance should be given to the other parties to the bill by the holder, on default of payment; for if under these circumstances a general notice of non-acceptance to any of the parties omitting to mention in such notice the nature of the acceptance offered, the acceptor is discharged by this act of the holder from his acceptance. 1 T. R. 182.

    NOTICE in case of foreign bills. Wherever a notice is requisite in case of dishonour of foreign bills, a protest is also necessary, and notice of non-acceptance should be transmitted within a reasonable time after protest, to all the

                                        parties

    NOT 145

    parties to whom he means to resort, 2 H. B. 569; nor must the holder delay giving notice till the bill is protested also for non-payment. 1 Bul. N. P. 271. It is not necessary that a copy of the protest should accompany the notice of non-acceptance, Esp. Ca. N. P. 511, 512; Bul. N. P. 271; nor is it necessary to send the protested bill; Mar. 98; but a notice of the protest is in all cases necessary. 12 Mod 309; Ventr. 45.

    NOTICE in case of foreign bills, when to be given. Notice should be given on the day of refusal to accept, if any post or ordinary conveyance sets out on that day, and if not, by the next earliest ordinary conveyance. 4 T. R. 174; Ld. Raym. 743; 2 Sty. 829; Mar. 97. Sending by the post, both in foreign and inland bills, will be sufficient, even though the letter should miscarry, and where there is no post, it will be sufficient to send notice by the ordinary mode of conveyance, although it may not be the earliest. 2 H. B. 565.

    NOTICE in case of inland bills, when to be given. In inland bills not protested for non-acceptance, if the parties reside in the same place where the bill was dishonoured, notice should be given

                      O 2             on

    146 NOT

    on the same day, if possible, and by that day's post if the parties are resident out of that place. In inland bills protested for non-acceptance, if the notice or protest thereof are not sent within fourteen days after it is made, the drawer or indorser will not be liable for damages &c. 3 & 4 Anne, c. 9. § 5. Notice should be given by the holder to the person from whom the bill was received, and although such notice may enure to the benefit of all the antecedent parties, and thereby make any further notice unnecessary, it is nevertheless adviseable for every party, immediately upon the receipt of such notice, to give a fresh one to such of those persons as are liable over to him, and against whom he must prove notice. Bayl. 83.

    NOTICE, how to be given if the person entitled to it be abroad. Notice of non-acceptance should be left in this case at the place of his residence in England, if he have one, and payment demanded of his wife or servant. Esp. Ca. N. P. 511, 512. See Presentment in case of Removal.

    NOTICE, its operation in case of bills accepted after due. If a bill be accepted after it become due, if notice have been given at the time the bill became due, of non-acceptance or non-payment,

                                        the

    NOT 147

    the acceptor will be bound to pay such bill or demand, the drawer and indorser being by such notice still held liable. 12 Mod. 410; Ld. Raym. 364, 574; Beawes' Pl. 224.

    NOTICE reasonable, by whom to be decided. This is partly a question of fact, and partly of law, dependent in some degree upon facts, such as, the distance at which the parties reside from each other, the course of the post, &c. but when these facts are once established, the reasonableness of the time becomes a question of law for the determination of the Court. Sed qu.? Per Ld. Mansf. and Buller, in Tindal v. Brown, 1 T. R. 168; Doug. 514, contra. (*)

    NOTICE in case of bankruptcy of the drawer. Such notice not having been given to a person accepting a bill after such bankruptcy, he will be justified in paying such acceptance, although he has afterwards heard of such bankruptcy. 7 T. R. 711. See Bankruptcy.

    NOTICE in case of loss, see Loss.

    NOTICE of discharge of servant, see Servant.

    NOTICE of dissolution of partnership, see Partnership.

    (*) (In Pennsylvania the question of reasonable notice is entirely a question of fact, for the jury to determine. 4 DalI. 129.)

    148 O

     

     

    OBLIGATION of parties to negotiable instruments. See the respective heads Acceptance, Drawer, lndorsement, Holder, &c.

    ORDER. Bills payable to order are assignable by indorsement and delivery only. See Delivery, Indorsement.

    OVER-DUE BILLS. A bill or note over-due carries with it circumstances of suspicion which do not attach upon bills transferred in the regular course, where the transfer carries no suspicion upon the face of it, and the assignee receives it on its own intrinsic credit, without being bound to enquire into any circumstances existing between the assignee and any of the previous parties to the bill, as he will

                                        not

    OVE 149

    not be affected by any of these transactions. Per Bull. 3. 3 T. R. 82. In a transfer, however, of a negotiable instrument after due, the assignee receives it subject to all the legal as well as equitable interests existing between the antecedent parties to the instrument of which he was aware at the time of the transfer. – this mode being out of the common course of dealing, affords ground for suspicion, in consequence of which it is always left to the Jury, on the slightest circumstance, to presume that the indorsee was acquainted with the facts rendering the transaction unfair. 3 T. R. 83. Where the bill was noted before it was transferred this circumstance was held sufficient ground to presume that the indorsee was acquainted with the impropriety of the transfer, vid. sup. and the mere circumstance of a bill's having been over due, has been expressed to be sufficient ground by a Jury to presume a knowledge of fraud in the assignee. 7 T. R. 430. It has, however, been said that fraud is not to be presumed without further evidence, although that evidence need not amount to demonstration. Castle v. Davies, per. Ld. Kenyon, Sit. G. H. 16 Feb. 1796; 3 T. R. 83; 1 Wils. 230.

                                        It

    150 OVE

    It has been decided that a party to a negotiable instrument transferring it to another person after it became due, shall not be at liberty to object to the payment of it when in the hands of a third person, who must necessarily also have received it after it was due; because, as payment could not have been demanded when the instrument was due, as it was not then issued, the difficulty was occasioned by the party himself who so put it into an improper circulation. Chitty, 114, 115.

     

     

    P 151

     

     

    PAROL ACCEPTANCE. See Acceptance Verbal.

    PARTIAL PAYMENT. Whether if the holder, upon presentment of a negotiable instrument, accepting payment of a part in satisfaction, without the assent of the either parties to a bill, shall exonerate these parties, is a point not yet completely decided. It is the generally received opinion that this being the election of the holder to receive payment from the acceptor, the other parties are consequently discharged, although the holder has given regular notice of this partial dishonour. It has however been said, and that by two writers of considerable authority, that if a bill regularly ac

                                        -cepted

    152 PAR

    cepted be presented for payment, and the whole sum is not paid, the holder may receive part in payment; and if he immediately protests for non-payment of the residue, such partial receipt will not release the obligation of the other parties with respect to the residue, because having obtained part of the money is in favour of those parties. Bull. N. P. 271, 273, 275; Mar. 36.

    Receiving part from the acceptor of the instrument will in no case discharge the drawer if the bill was for accommodation only (Cooke 167), and if the holder of an accommodation bill receive a part from the drawer, and take a promise from him upon the back of the bill for payment of the residue at an enlarged time, it may become doubtful whether such act will discharge the acceptor. Ellis v. Galindo, cited Doug. 250; Bayley 55. acc. 1 H. B. 88. semb. cont. See Appendix. (*)

    PARTIAL ACCEPTANCE, see tit. Acceptance, Indorsement, Transfer.

    PARTIES to negotiable instruments. Any persons may become parties to negotiable instruments who are capable of binding themselves by a contract. See the several titles

                                        Bills,

    (*) (Taking a note for goods sold is a payment, because it was part of the original contract, but paper is no payment where there is a precedent debt. 14. Raym. 930. Chitty 122, 3. 7 T. R. 65, 6.]

    PAR 153

    Bills, Checks, Notes, Drawee, Acceptor, Holder, Infants, Married Women, &c.

    PARTNERS. Where there are two joint traders and one accepts a bill for himself and partner drawn on both, both will be bound if it concern the trade. It has been said, indeed, that the act of one partner will not bind the other if it concern him only in a distinct interest. 1 Salk. 125. By more recent authorities, however, this appears to be contradicted, for it was decided in the case of Sheriff v. Wilkes, that the act of one partner in the name of the firm is obligatory upon the others though it may be on his own separate account, unless the parties claiming the benefit of it received it with knowledge of that circumstance; in which case the others will not be bound. Sheriff v. Wilkes, East 48. See also Peake 80; 2 Vein. 277, 292; Esp. 524; and one partner may pledge the credit of his co-partner to any amount by any act in the way of merchandize done in the name of the firm, or of all the parties. Burr.1216, 1221; 1 Bla. Rep. 295. One partner, however, cannot bind another by deed without his express authority. 1 T. R. 313; 7 T. R. 207.

                      P             PARTNER

    154 PAR

    PARTNER. If a bill be drawn by two persons who are not partners, payable to their order, it must be indorsed by both. 1 Bla. Rep. 295.

    PARTNERS, how far an authority to one to act for all will be binding upon the firm. An express authority given by several partners to one to act for all of them, empowers the party so authorised to act in the double capacity of agent and partner; but his power and authority being express, he must be guided by it. An authority given to one partner to receive a debts owing to, and to pay all debts due from partnership on its dissolution, does not authorise such party to indorse a bill of exchange in the name of the partnership, though drawn by him in that name and accepted by a debtor of the partnership after the dissolution. Kugour v. Finlayson, 1 H. B. 155.

    PARTNERS, how bills should be accepted by them. If a bill be accepted by one partner only on the partnership account, he should subscribe the name of the firm, or express that he accepts for himself and partner. 1 Salk. 126; Ld. Raym. 175; Carvick v. Vickery, Doug. 653; Ld. Raym. 1484.

    The right of transfer in copartnerships is

                                        in

    PAR 155

    in all collectively, and not in any one individually, although with respect to the mode of transfer the right of several persons when in partnership, may be put in force by the indorsement of one partner only, in which case the transfer is considered as made by all the persons entitled to make it. Vide supra.

    PARTNERSHIP, limitation with respect to number. By 6 Anne, c. 22. § 9, and G. 2. c. 13. § 13, no co-partnership exceeding the number of six persons (the Governor and Company of the Bank of England excepted) shall borrow, owe, or take up any sum or sums of money on their bills or notes payable on demand, or at any less time than six months from the borrowing thereof.

    PARTNERSHIP, notice of dissolution, how to be given. This should not only be given in the Gazette, as is the usual practice, but it must be brought home to the knowledge of the holder of any negotiable instrument in which the firm is concerned; under these circumstances, therefore, it is incumbent upon the partners to give notice to all their individual correspondents; otherwise, notwithstanding the notice in the Gazette, they will stand respon

                                        -sible

    156 PAY

    sible for all bills negotiated by one of the former partners in the name of the firm.

    PAYEE, how to be described in a bill. Unless the payee be properly described in a negotiable instrument, it is said that it will be mere waste paper. 1. H. B. 608. Care should be taken that the name of the payee should be properly spelled (Beawes' Pl. 3); and where there are two persons, the payee should be so described that no mistake can arise with respect to his personal identity. 4 T. R. 28.

    PAYEE of bills, under five pounds, see Small Notes.

    PAYMENT of bills, checks, or notes, its operation. The contract of the parties to a negotiable instrument is terminated upon the payment, at least so far as to prevent their being subject to new engagements; no indorsement, therefore, can be made after payment so as to affect the parties making it; and in an action where it appeared that the drawer had paid the bill and indorsed it over to the plaintiff, it was decided that such indorsement could not vest in the plaintiff any right of action against the acceptor. A person, however, not originally a party to a bill, by paying it for the honour of the

                                        parties

    PAY 157

    parties to it, acquires a right of action against all the parties. Esp. 112. and after payment of a part only, a bill or check may be indorsed over for the residue. Ld. Raym. 360.

    PAYMENT after revocation of indorsement. See Revocation of Indorsement.

    PAYMENT under misapprehension of facts. – The payment of a bill or note under misapprehension of facts, or of the law arising out of them, which the party making the payment was under no legal obligation to discharge, as when the person whom he had paid had been guilty of laches, which might have been a sufficient ground of defence if the bill had not been paid, may be recovered back in an action for money had and received to the use of the plaintiff. Chatfield v. Paxton and Co. Sittings after Tr. T. 38 G. 3.

    PAYMENT by and to whom to be made. Payment of a bill may not only be made by the acceptor but also by any other party, and even by a total stranger, as in the case of payment supra protest, Poth. Pl. and payment by the bail of either of the parties. 1 Wils. 46. Payment should be made to the real proprietor of the instrument, or his agent lawfully appointed

                      P 2             and

    158 PAY

    and empowered to receive it; for if he has ceased to be proprietor from having indorsed it to some other person, it will not be valid. Poth. Pl. 164.

    PAYMENT within what time to be made. – Where a day certain is appointed it is a general rule that the party bound shall be allowed till the last moment of the day to pay it in, if it be an inland bill. 1 Rol. Rep. 189; 1 Saund. 287; 4 T. R. 173. It does not appear to be settled whether the acceptor has not the whole day for payment of an inland bill. 4 T. R. 170. With respect to foreign bills, the case is different, for as the protest upon a foreign bill should be made upon the last day of grace, so as to be sent, if possible, by the post on that day, it follows that the holder may insist on payment on demand on the last day of grace, or at least before the hours of business are expired. 1 Ld. Raym. 743.

    PAYMENT of part, how far to be considered as a discharge, see Waiver of Acceptance.

    PAYMENT of part in accommodation bills, see Accommodation Bills, p. 17.

    PAYMENT in case of bankruptcy, death, infants, married women, loss, robbery, &c. see the respective heads.

                                        PAYMENT

    PRE 159

    PAYMENT of debt and costs, see Costs.

    PLACE where the bill is made. This should be superscribed upon the instrument, and where the maker is not a person well known in the commercial world, it is adviseable for him to mention the number of the house and the street where he resides, that the holder may be better enabled to find him out in case his responsibility be doubtful, or in case acceptance and payment are refused by the drawee. By the Small Note Bill, 17 G. 3. c. 30, in bills under five pounds this is absolutely essential to the validity of the instrument. See Small Notes.

    PLEAS, see Defence.

    POST. Sending notice by the post in case of the dishonour of a foreign or inland bill of exchange, will be sufficient, even though the letter should miscarry. 2 H. B. 509. acc. Barn. Rep. B. R. 199.

    PRESENTMENT for payment, by whom to be made. This should in general be made by the holder, or his agent, being competent to give a legal discharge for the same to the person in general upon whom it is drawn. 1 Esp. 115; Poth. Pl. 129; and notwithstanding former doubts upon this subject,

                                        a person

    160 PRE

    a person in possession of a bill payable to his own order is a sufficient holder for this purpose. 10 Mod. The demand for payment need not be personal, it will be sufficient if it be made at the place appointed by the party for payment, or of his agent who has been accustomed to pay money for him; but presentment for and demand of payment should be made on the person, and at the place appointed, if made or accepted by such person, at such particular place, or by a particular person not party to the instrument. Esp. 512; 2 H. B. 509; 12 Mod. 241. In default of the above, the acceptor and the other parties would in general be discharged from their obligations.

    PRESENTMENT second, when unnecessary. If presentment be made, and payment refused, although in general, notice must be given, yet it will be unnecessary to make another presentment to the acceptor in person, the contract being in this case broken. Mar. 106; 2 H. B. 509; Com. Dig. tit. Merchant, F. 7.

    Although the person at whose house the instrument is made payable is not a party to it, and consequently not personally liable, yet an answer by him, or at his house, as to the pay

                                        -ment

    PRE 161

    ment or, non-payment of it, will be sufficient. Esp. 4. If the person at whose house the bill is made payable is himself the holder of it, it is a sufficient demand of payment for such person to inspect his books, and sufficient evidence of a refusal to find upon such inspection that he has no effects in his hands. 2 H. B. 309. See Evidence, Demand, Presentment.

    PRESENTMENT in case of death, removal &c. If the drawee or acceptor be removed from the place where the bill was originally made payable, the holder should endeavour to find him out, and there present it: if he have absconded, no further enquiry becomes necessary; if he have left the country, presentment and demand of payment of his wife or agent, at the place where he formerly resided, will be sufficient. Collins v. Butler, Str. 1687; Ld. Raym. 743; Esp. 511. If the drawee be dead, the bill should be presented for payment to his personal representative; and if there should be none, payment should be demanded at the house of the deceased; and if the deceased have no widow nor presumptive heirs, Pothier is of opinion that the holder will in this case be excused from making any protest. A late

                                        writer,

    162 PRE

    writer, however, (Mr. Evans,) observes most judiciously, "that a presentment at the house where a negotiable instrument is made payable will be sufficient if the drawee be dead, and that the collateral enquiries ought to fall not upon the holder, but the indorser, and finally upon the drawer, who have all engaged for payment at that place. If no place of payment be expressed, and the drawee be dead, application should be made at his last dwelling house; and the bill not being paid there, should be taken up by the anterior parties without subjecting the holder to search for the personal representative. See Death, Removal of the Acceptor.

    PRESENTMENT for payment, within what lime to be made. This must in all cases be done within w reasonable time; and there is some doubt whether what shall be a reasonable time should be a question of fact for the determination of a Jury, or a question of law for the decision of the Court. Upon a bill or note payable upon demand or at sight, in London, in one case a presentment the next morning after its receipt was held sufficiently early, a presentment at two the next afternoon too late. Ward v. Evans,

                                        Ld.

    PRE 163

    Ld. Raym. 928; East India Company v. Chittey, Str. 1175; In a later case, however, where a similar note was given in London at one, but not presented till the next morning, two Juries held this delay unreasonable, but the Court was of a contrary opinion. Appleton v. Sweetapple, B. R. M. 23 G. 3.

    Bills or notes should be presented for payment upon the last day of grace, and within a reasonable time before the expiration of that day; negotiable instruments should also be presented within seasonable hours or hours of business: thus if by the known custom of any place bills are only payable within limited hours, a presentment there out of such hours is unseasonable; and so is a presentment out of the hours of business to a person of any particular description in any place where by the known custom of such place all persons of his description begin and leave off business at certain stated hours.

    PRESENTMENT for payment by a banker. Bills or notes paid into the hands of a banker must be presented by him as soon as if it had been paid into his hands by a customer; and such instrument, if payable where the banker re

                                        -sides,

    164 PRO

    sides, must be presented the next time the banker's clerk, goes his usual rounds. Hankey v. Trotman, Bl. 1.

    PRESENTMENT, what delays in are admissible, see Delay, p. 94.

    PROOF, see Dividend.

    PROMISE. In the case of Mason v. Hunt it was laid down by Lord Mansfield, that if one man to give credit to another make an absolute promise to accept his bill, the drawer, or any other person, may shew such promise upon the Exchange to get credit, and a third person who should advance his money upon it would have nothing to do with the equitable circumstances which might subsist between the drawer and the acceptor. In a subsequent case, however, that of Johnson v. Collings, East 98, Mr. Justice Le Blanc having added the preceding extract from Lord Mansfield's opinion, Lord Kenyon said be thought that the admitting a promise to accept before the existence of a bill, to operate as an absolute acceptance afterwards, even with the qualification of credit being given by a third person upon the faith of such an assurance, was carrying the doctrine of implied acceptance to the utmost verge of

                                        the

    PRO 165

    the law, and he doubted whether it did not even go beyond it.

    PROMISE to accept in future, whether made to the drawer or not, as a promise contained in a letter to accept such bills as the plaintiff should draw on the defendant at a future day, on account of a debt due from a third person to the plaintiff, will operate against the person making it as an absolute acceptance. 3 Burr. 1663, 1672; Cowp. 571.

    PROMISE upon an executory consideration, how far binding. A promise upon an executory consideration will not bind as long as such consideration remains executory, unless it influences some person to take or to retain the bill. Bayl. 49; and if the promise to accept in future be obtained by fraud, it shall in no case be binding. Burr. 1669.

    PROMISSORY NOTES. A promissory note is a written promise for payment of a specific sum of money at a certain time, deriving its existence and privileges from the 3d & 4th Anne, c. 9. The person who subscribes the note is called the maker, the other parties are the same as those to bills of exchange; and these instruments are placed by the statute,

                      Q             with

    166 PRO

    with respect to time when payable, days of grace, and mode of payment, precisely upon the same footing as bills of exchange.

    In the case of Heylin v. Adamson, Lord Mansfield observed, that "although while a promissory note continues in its original shape of a promise from one man to another it bears no similitude to a bill of exchange, yet when it is indorsed the resemblance begins, for then it is an order by the indorser upon the maker of the note to pay to the indorsee; the indorser becomes as it were the drawer; the maker of the note, the acceptor, and the indorsee, the payee. The above point of resemblance once fixed, the law relative to bills becomes equally applicable to promissory notes," See Stamps, Bills of Exchange, Presentment, Protests, &c.

    PROOF, see tit. Evidence.

    PROTEST is a minute of non-acceptance or non-payment of a bill of exchange, and a solemn declaration on the part of the holder against any loss to be sustained from the non-acceptance or non-payment of a bill of exchange.

    PROTEST upon foreign bills. In all cases of the dishonour of a foreign bill where notice is

                                        necessary,

    PRO 167

    necessary, a protest must be made, which, although matter of form, is nevertheless, by the custom of merchants, indispensable, and it is said to be part of the constitution of a foreign bill. Ld. Raym. 993; 6 Mod,. 8; 2 T. R. 713; 5 T. R. 239; Holt 121.

    PROTEST upon a foreign bills, how to be made. The holder, or his friend (if he is ill or absent.) in case of non-acceptance or non-payment of a foreign bill, should carry it to a notary, who is to present it to the drawee and again demand acceptance; which if refused, the notary is there to make a on the bill itself, consisting of his initials, the month, day, and year, and the reason (if any assigned) for non-acceptance, together with his charges for making such minute. After this, a solemn declaration is to be drawn up by the notary (upon the bill itself, if it can be had, if not, upon a copy), that the bill has been presented for acceptance, which was refused, and that the holder intends to recover all damages which he, or his principal, or any other party may sustain on account of the non-acceptance. Poth. Pl. 134; Mal. 264; Mar. 16. The minute is termed the noting, and the solemn declaration the protest, to which all fo

                                        -reign

    168 PRO

    reign Courts give credit. Molloy 281; Skin. 272. pl. 1; 2 Bac. Ab. new edit. 725 The want of a protest can in no case be supplied by noting, which is a mere preparatory minute of which the law of England takes no cognizance as distinguished from the protest. See Noting.

    PROTEST where no notary. Bills are protested in this country, if there be no notary resident at or near the place where payable, by some substantial resident, in the presence of two or more witnesses, between sun-rise and sun-set, and should in general be made at the place where payment is refused; but when a bill is drawn abroad, directed to the drawee at Southampton, or any other place, requesting him to pay to the payee in London, the protest for non-acceptance of such bill may be made either at Southampton or London. Chitty 92, cites Mar. 107.

    PROTEST its form. The form of a protest must always be conformable to the custom of the country where it is made, Poth. Pl. 155; and a copy of the bill must be prefixed to all protests, with the indorsements transcribed verbatim, with an account of the reasons given by the party why he does not honour the bill.

                                        Mar.

    PRO 169

    Mar. 107. and to be received in evidence, it must be written on paper stamped with a two-shilling stamp. 37 G. 3. c. 90. It has been recently decided that it is not necessary that a copy of the protest should accompany the notice of non-acceptance, neither is it necessary to send the, protested bill, but a copy of the protest should in all cases be given. Esp. Ca. N. P. 511, 512; Bulk. N. P. 271; Mar. 68, 86, 87, 120; Lov. 100; 12 Mod. 309; Vent. 45.

    PROTEST upon foreign bills, within what time to be made. No adjudication, it is said, has been yet made with respect to this point, but from. analogy with respect to the time when such protest should be made for non-payment, it should be made in this country within the usual hours of business, on the day when acceptance is refused. Mar; 112; 4 T. R. 174.

    PROTEST upon inland bills. By 3 & 4 Anne, c. 9. § 4, a protest may be made for an inland bill, if such bill be for the payment of 5l. or upwards, within a limited time after date, and the value expressed to have been received, or after an acceptance written on such bill for its non-payment; but a protest cannot properly

                      Q 2             be

    170 PRO

    be made on any other inland bills. See also 9 & 10 W. 3. c. 17. § 1. But a protest upon an inland bill is never necessary where the bill is for payment of less than 20l. ; and in such as are for more, a neglect to procure it will only preclude the holder from recovering against the persons entitled to notice, and special damages or costs occasioned by the non-acceptance, non-payment, and interest. 3 & 4 Anne, c. 9. § 6. Brough v. Parkins, Ld. Raym. 992; Str. 910. If the bill, however, be under 20l. it does not appear to have been decided whether the holder would not be entitled to the above as an accumulative remedy, although no protest was made. 9 & 10 W. 3. c. 17. § 6. A protest upon inland bills, however, is very unusual in practice, such bills being only noted for non-acceptance.

    For abstracts of the above cited statutes, see Appendix.

    PROVISION, see Commission, Discount.

     

    R 171

     

     

    RECEIPT. The receipt of a bill or note need not, like other receipts, be stamped; it is usually given on the back of the bill. A general receipt on the back of the bill is prima facie evidence of its having been paid by the acceptor (Peake 25), and therefore it is in all cases adviseable, where payment is made by a drawer or indorser, to state in the receipt that it was made by him, because he will not in such case be put to the trouble of proving payment by a witness. In a case reported by Ld. Raym. 742, a plaintiff was non-suited because he could not produce a receipt for the money paid by him to the indorsee upon the protest, according to the custom of merchants, although

                                        Judge

    172 REE

    Judge Holt seemed to be of opinion in that case that if the plaintiff could have adduced any evidence of the bill's having been paid, it would have been sufficient.

    RE-EXCHANGE is the expence incurred by the bill's being dishonoured in a foreign country where it is made payable, and returned back to that country in which it was made or indorsed, and there taken up; the amount of this depends upon the course of exchange between the two countries through which the bill has been negotiated. In other words, re-exchange is the difference between the draft and the re-draft. When a bill is drawn upon a foreign country the first thing that should be enquired into is, the value of money in that country. If, for example, a bill be drawn payable in France, and there dishonoured, if the rate of exchange should at such period of its dishonour be in favour of France, and the bill is returned to this country, and the drawer or indorser is called upon to take it up, he may, as actually happened in the case of Mellish v. Simeon, (see this case in the Appendix,) be obliged to pay 309l. 4s. 5d. more than the amount of the bill. The drawer of a bill is liable for the whole amount of the re

                                        -exchange

    REL 173

    exchange occasioned by the circuitous mode of returning the bill through the various countries in which it has been negotiated, as much as for that occasioned by a direct return, although payment of the bill was expressly prohibited by the laws of the country where it was drawn.

    RE-EXCHANGE upon Indian or American bills, see Damages, p. 76.

    REFERENCE to the Master, see Judgment by Default, Writ of Inquiry.

    RE-ISSUING bills or note; see Appendix.

    RELEASE. What amounts to an assent to discharge an acceptor has been held by the Courts to be a question for the Jury arising out of the circumstances of the case. Ellis v. Galindo, cited in Dingwall v. Dunster, Doug. 247, (see these cases in the Appendix.) In the last case it was held that nothing but an express consent or the statute of limitation would discharge the acceptor. Doug. 247; Anderson v. Cleland, Esp. N. P. 46. If the holder give a release to the drawee after the bill is drawn, and before acceptance, this will not discharge him from the obligation raised by a subsequent acceptance, because he. was not chargeable at the time of such release. Ld. Raym. 65. See Discharge, Satisfaction, Waiver.

                                        REMOVAL

    174 ROB

    REMOVAL of the acceptor, see Absconding, Presentment in case of removal.

    REMEDY in case of non-payment of a negotiable instrument, see Action, Bankruptcy, &c.

    ROBBERY, if a negotiable instrument be stolen or lost, see Loss.

     

     

    S 175

     

     

    SATISFACTION, see Discharge, Execution, Extinguishment, Payment.

    SERVANT. If a bill be drawn upon a man by the description of a servant, a general acceptance will bind him personally. Thomas v. Bishop, Anne 1 Str. 955. See Agent, Signature.

    SETS. Foreign bills generally consist of several which are called sets, each part of which contains a condition that it shall be payable only so long as the others remain unpaid; in every other respect they are all counterparts of each other.

    In bills drawn in sets the condition should be inserted in each part, and should mention in

                                        each

    176 SIG

    each every other part of the set: for if a person having the intention to make a set of three parts should omit the condition in the first, and make the second with a condition mentioning the first only, and in the third take notice of the other two, he might perhaps be in some cases obliged to pay each; for it would be no defence to an action on the second that he had paid the third, nor to an action on the first that he had paid either of the others.

    Where a bill consists of several parts, each ought to be delivered to the person in whose favour it is made, unless one be forwarded to the drawee for acceptance, in which case the rest must be also so delivered, otherwise difficulties may occur in negotiating the bill or obtaining payment. Bayl. 15.

    SIGNATURE to a Bill of Exchange. The name of the drawer of a bill of exchange should be either subscribed at the bottom, or inserted in the body of it. Beawes' Pl. 3; Ld. Raym. 1376, 1542; Str. 399, 609; 8 Mod. 307; and it should either be written by the drawer, or some person properly by him authorised. If drawn or signed by an agent, it is usual for him to sign as follows," A B for

                                        C D,"

    STA 177

    C D," and if he does not express for whom he signs, he will be personally liable. If signed by one person for himself and partner, it is customary to sign "A B for A B and Company," or to that effect.

    SIGNATURE, what will be evidence of it. A confession of signature is sufficient evidence against the party making it, but not against any other party. Cooper v. Le Blanc, Str. 1051; Hemmings v. Robinson, 1 Barnes 317.

    SIGNATURE. In an action against several drawers, indorsers, or acceptors, an admission upon the pleadings by one of his signature will not exempt the plaintiff from proving it against the others if they contest it. Gray v. Palmer, Espinasse 125.

    SIGNATURE of a partner or servant importing to have been made on the partnership or master's account, is to be considered as the signature of the partnership or master. Pinkney v. Hall, Ld. Raym. 175; Smith v. Jarvis, Ld. Raym. 1484; Carvick v. Vickery, Doug. 630.

    SMALL NOTES and BILLS, see Appendix.

    STAMPS. The law relative to stamps upon negotiable instruments rests upon the 31 G. 3.

                      R             c. 25.

    178 STA

    c. 25. The duties are payable by the drawer of the instrument, who, as well as the person paying the same without its having been previously stamped, is subject to a penalty of 20l. under the 10th section of the act. By the 19th section also, unless the paper on which the instruments are written be stamped previously to their being made, they shall not be received in evidence in any Court whatsoever. If the bill be unstamped, or bear an inferior stamp to that prescribed, by the act, the holder will have no remedy, and the instrument will be invalid. By 37. G. 3. c. 136. § 5, any bill made after 37 G. 3. c. 90, which shall be stamped with a stamp of a different denomination to that required by the act, may, if the stamp be of equal or superior value to the stamp required, be stamped with the proper stamp on payment of the proper duty, and forty shillings if the bill is not due, or 10/. if it be due, and the commissioners are thereupon to give a receipt for the duty and penalty so paid on the back of the bill, and such bill will be valid in any Court. Previous to the passing of the above act a bill stamped with an improper stamp was valid, provided it was a stamp required under the

                                        31st

    STA 179

    31st G. 3. c. 25, and was of the same or greater value than the proper one, 31 G. 3. c. 25. § 19; but in the case of Manning v. Livie, Sit. after M. T. 1796 cor. Lord Kenyon, in an action on a note by an indorsee, the stamp appeared to be a seven-shilling deed stamp, and therefore his Lordship said could not be received. – The plaintiff was consequently non-suited.

    STAMPS on foreign bills; Every bill drawn abroad must be stamped according to the laws of the country where it was made, otherwise the holder cannot recover upon it. Alves v. Hodgson, 7 T. R. 241; Esp. Ca. N. P. 528. See Appendix Stamp Table.

    STAYING PROCEEDINGS. If the defendant in an action brought by the holder of a negotiable instrument is advised to settle the action in the first instance without further expence, he may take out a summons, or move the Court for a rule, calling on the plaintiff to shew cause, why on payment of the debt and costs, all further proceedings should not be stayed. If the holder of a bill of exchange bring separate actions against the acceptor, the drawer and indorsers at the same time, the

                                        Court

    180 SUP

    Court will stay the proceedings it any stage of the action against the drawer, or any one of the indorsers, upon payment of the amount of the bill and the costs of that particular, action; but the action against the acceptor will only be stayed on the terms of his paying the costs in all the actions, he being the original defaulter. Chitty 193; 4 T. R. 691; Str. 515.

    STYLE, see Computation of Time.

    STOLEN BILL, see Loss.

    SUPRA PROTEST, see Acceptance supra Protest.

     

    T 181

     

     

    TENDER. Bank notes are not a legal tender if specially objected to on that account at the time of the offer. 3 T. R. 554; 6 T. R. 335; though after such tender a creditor cannot arrest his debtor so as to hold him to bail. For by 38 G. 3. C. 1. § 8, no person shall be held to bail unless the affidavit of the debt allege that no offer has been made to pay the debt in Bank notes payable on demand.

    TlME for payment in a negotiable instrument, see Payment, Notice, Protest.

    TIME allowed for acceptance. It is customary to leave a bill presented for acceptance twenty-four hours, by way of giving the drawee an opportunity to look into his accounts with the

                      R 2             drawer,

    182 TRA

    drawer, and see whether he has effects or not. It is usual (although not demandable of right) for the payee or holder to leave the bill with him twenty-four hours after presentment, unless he accept in the interim, or declare his resolution not to accept. Ld. Raym. 281; Mar. 62; Beawes' Pl. 17. But it has been said that even this must not be done if the post goes out in the interim. Mar. 62; Com. Dig. tit. Merchant, F. 6. See Acceptance. p. 11.

    TRANSFER of bills, notes, or checks. The transferable quality of written negotiable instruments is that which principally distinguishes them from almost every other security; and in consequence of the utility of these instruments in commercial transactions, they have been peculiarly favoured in Courts of Justice, and notwithstanding doubts formerly entertained relative to this point, it is decided that in bills, &c. payable to order or bearer, the transfer vests a right in the assignee to bring an action upon such assigned instrument in his own name. In general, however unless there are some words giving authority to the holder to assign, he will have no right of action against any of the parties to the instrument but the assigner. 1 Salk. 133. Any

                                        words,

    TRA 183

    words, however, or facts proving the intention of the proprietor to make the instrument negotiable, will communicate a transferable quality to the instrument against such person. (*)

    TRANSFER, who may make it. The right of transfer, is in the payee, or in such person to whom such right has been by him transferred.

    TRANSFER when to be made. Assignments of bills or notes are usually made after acceptance and before payment; in some cases, however, a bill may be transferred after the time limited for its payment, in which case it has been held that such indorsement is equivalent to drawing a bill at sight. 1 T. R. 430; 1 Show. 164.

    TRANSFER of bills or notes after due, see Fraud, Over-due Bills.

    TRANSFER of bills, &c. after due. A transfer after payment cannot subject any of the parties to the instrument to any new engagements. 1 H. B. 89; Bull. N. P. 271. Bills or notes, however, if paid in part may be transferred for the residue. Ld. Raym. 366; Carth. 466; 12 Mod. 213; 1 Salk. 65; 2 WiIs. 262.

    TRANSFER of bills drawn in sets. Each part

                                  must

    (*) [All bills or notes which are drawn payable to bearer are transferred by the mere act of delivery. 1 Burr. 452. 3 Burr. 1516. 1 Bl. Rep. 485. ]

    184 TRU

    must be delivered to the person in whose favour the transfer is made. See Indorsement, Small Notes, Promissory Notes.

    TRANSFER by delivery to a fictitious payee. A transfer by delivery of a bill payable to a fictitious payee is valid against all the parties to it acquainted with that fact. 1 H. B. 600.

    TRUSTEE. If a bill be made payable to A for the use of B, A is in this case trustee for B, who has the equitable interest, although the right of transfer in this case is in A.

     

    U 185

     

     

    USANCE is the time of one, two, or three months after the date of the bill, according to the custom of the places between which the exchanges run. Double or treble usance is double or treble the usual time, and half usance is half the time. Where it is necessary to divide a month upon an half usance, which is the case when the usance is either one month or three, the division, notwithstanding the difference in the length of the month, contains fifteen days. Mar. 93. The usances are calculated exclusive of the date of the bill. Bills drawn at usance are allowed the usual days of grace, and on the last of the three days the bill should be presented for payment. (*)

                                        USURY

    (*) (Where there is no date, and the payment is directed to be made so many days after date, the date is taken to be the day on which it was issued. Kyd 7. When a bill is payable at usance, it must be averred in pleading what that usance is; because usances differing according to the places between which they are reckoned, the court cannot, in any instance, take notice ex officio what they are. And that averment ascertaining the time when the bill is payable, it seems immaterial from what place the bill is stated to be dated. Buckley v. Campbell, 1 Salk. 13.)

    186 USU

    USURY will vitiate negotiable instruments in the hands of an innocent holder. Bankers in discounting bills may retain five per cent. the customary commission, and reasonable incidental expences, over and above the interest or discount, without being guilty of usury. 3 Wils. 262; Moor 644; 1 Buls. 20; Winch qui tam v. Fenn, cited 2 T. R. 52.

     

     

    V 187

     

     

    VALUE RECEIVED. These words although usually inserted, are nevertheless not essential to the validity of negotiable instruments unless in particular oases, for value received is as much implied upon the face of every negotiable instrument as if these words had been actually expressed. Chitty 50. By 9 & 10 W. 3. c. 17, and 3 & 4 Anne, c. 9. § 4, the holder cannot recover interest and damages against the drawer and indorser in default of acceptance or payment, unless the bill contain the words value received; on this account, therefore, it is at all times adviseable to insert these words. See Protest. (*)

                                        VARIANCE.

    (*) (The point is now fully settled, says Kyd, that these words are not necessary. Vid. 2 Strange 1212; 3 Wils. 207; Barnard K. B 282; 8 Mod. 267; 1 Show. .5, 497; 2 Ld. Raym. 1356, 1481, Lutw 889. Fortesc. Rep. 282; 1 Mod. Lit. 310. In France they are absolutely necessary. Beawes 490. If value received was in the bill or note, there is no occasion to prove the payment of that value. 2 Ld. Raym. 1556.)

    188 VER

    VARIANCE. If in an action upon a negotiable instrument the plaintiff in his declaration set forth the instrument different from what it really is, such variance will be fatal. Bristow v. Wright, Doug. 667; Cowp. 600; 3 T. R. 178, 335, 643; 4 T. R. 471, 611; 1 Pul. and Bos. Rep. C. B. 7. See Declaration.

    VERBAL ACCEPTANCE, see Acceptance Verbal.

    VERDICT. The amount of the damages given by a Jury in an action upon a negotiable instrument comprises the following particulars, viz. the principal sum due, interest, and expences, being those incurred by noting or protesting, postage, and in foreign bills the re-exchange. See the respective heads.

     

    W 189

     

     

    WAIVER of an acceptance. The waiver of an acceptance may be either expressed or implied. An agreement to consider an acceptance at an end, or a message to the acceptor upon an accommodation bill that the business was settled with the drawer and he need give himself no further trouble, are express waivers. Master v. Miller, 4 T. R. 350; Walpole v. Pulteney, cited Doug. 236, 237, 248, 249; Black v. Peele, cited Doug. supra.

    WAIVER. The receipt of the known consideration of the instrument is an implied waiver. Mason v. Hunt, Doug. 284, 297.

                      S             WAIVER,

    190 WIT

    WAIVER, how far constituted by receiving part payment from the acceptor. If the holder of a bill or note receive a part of the money from the drawer, and take a promise from him upon the back of the bill for payment of the residue at an enlarged time, it shall in such case be left to a Jury to say whether this be not a waiver of the acceptance; but it should be left to them with strong observations that it is. Bayl. 56. cites Ellis v. Galindo, B. R. M. 24 G. 3, cited Doug. 250, note. See Payment.

    WAIVER. Neglect to call upon an acceptor, or indulgence to any of the other parties, though for ever so long a time, shall not be considered as a waiver. Dingwall v. Dunster, Doug. 235, 247.

    WAIVER, see Discharge, Satisfaction, &c.

    WITNESSES to a bill, when deemed competent. Whether the payee in an action at the suit of the indorsee of a bill against the acceptor is a witness competent to prove that the bill was originally void, is a question of some doubt. 7 T. R. vide Esp. 332; Peake 6, 52, 244, acc. Esp. 10, 85, 298; Peake 40; Trials per pais 502; 12 Mod. 345; Holt 297, contra. But it has been decided that in an action against the

                                        maker

    WRI 191

    maker of a note the indorser is a good witness to prove it paid. Peake 6, 52. In an action against the drawer of a bill the acceptor may prove that he had no effects in his hands, Esp. 332; and the maker of a note was admitted by Lord Mansfield, in an action against the indorser, to prove that the date had been altered Levy v. Essex, Sit. Mid. post M. T. 1775. A person whose name is on the bill as an indorser cannot be a witness to prove a property in it in himself, and that it was indorsed to the plaintiff without consideration. Esp. 85. A person supposed to be the drawer of a bill cannot be called upon to prove that he did not draw it without a release. 12 Mod. 345; Holt 297; Trials per pais 502.

    WITNESSES to an indorsement, see Small Notes.

    WORDS which will constitute an acceptance, see Acceptance.

    WORDS of negotiability, see Negotiability.

    WRIT OF INQUIRY. After judgment by default no evidence can be admitted against the validity of the instrument, although founded upon an usurious consideration, the

                                        validity

    192 WRI

    validity of the instrument being admitted by the defendant in suffering the Judgment to go by default. A writ of inquiry, however, in actions upon negotiable instruments is seldom executed, the usual practice being a reference to the Master to compute principal, interest, and costs. See Evidence, Judgment by Default.

                                        APPENDIX.

     

     

     

    APPENDIX

     

    ABSTRACTS OF THE ACTS

    RELATIVE TO

     

    PROMISSORY NOTES,
    3 & 4 ANNE, c. 9. § 1.

    THE preamble to this act recites, that it having been held that promissory notes were not assignable or indorsable over within the custom of merchants to any other person, and that such person to whom such notes were payable could not maintain an action by the custom of merchants against the person who first drew and signed the same.

    "To the intent to encourage trade and commerce, which will be much advanced if such notes shall have the same effect as bills of exchange, and shall be negotiated in like manner, enacts that all notes in writing payable to

                      S 2             any

    194 ABSTRACTS OF ACTS. [Append.

    any particular person or his order, or unto bearer, shall be made payable to such party; and also every such note payable to any person or persons, body politic and corporate, his, her, or their order, shall be assignable or indorsable over in the same manner as inland bills of exchange are or may be, according to the custom of merchants; and that the persons, &c. to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same in such manner as they might have done upon any inland bill of exchange made or drawn according to the custom of merchants against the persons, &c. who signed the same; and any person or persons, &c. to whom such note is indorsed or assigned or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain an action for such sum of money, against any of the parties, in like manner as in case of inland bills of exchange."

    PROTEST UPON INLAND BILLS,
    9 & 10 W. 3. c. 17. § 1.

    Bills of exchange, dated at or from any trading city or town, or any other place in England, Wales, or Berwick upon Tweed, of the sum of five pounds sterling, or upwards, (in which said bill or bills shall be acknowledged and expressed the said value to be received,) drawn payable at a certain number of days, weeks, or months from the date thereof, from and after presentation and acceptance of the said bill or bills of exchange (which acceptance shall be by the underwriting the same under the party's hand so accepting), and after the expiration of three days after the said bill or bills shall become due, the parties to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause

                                        the

    Append.] ABSTRACTS OF ACTS. 195

    the said bill, or bills to be protested by a Notary Public; and in default of such Notary Public, by any other substantial person of the city, town, or place, in the presence of two or more credible witnesses, refusal or neglect being first made of due payment of the same, which protest shall be made and written under a fair written copy of the. said bill of exchange in the words or form following: –

    "Know all men that I, A. B. on the _________ day of ________ at the usual place of abode of the said _____________ have demanded payment of the bill of the which the above is the copy, which the said did not pay, wherefore I the said A. B. do hereby protest the said bill.

    Dated this ________________ day of ________________.

    BILLS LOST OR MISLAID,
    9 & 10 W. 3. C. 17. § 3.

    If any inland bill be lost or miscarry within the time limited for its payment, the drawer shall, on security given upon request to indemnify him if such bill be found again, give another bill of the same tenor with the first.

    The equity of this statute appears to comprehend indorsements also, and that the 3d and 4th Anne, c. 9. which gives like remedies upon notes as were then in use on inland bills, would extend it to notes.

    PROTEST FOR NON-ACCEPTANCE IN WRITING.
    9 W. 3. and 3 & 4 Anne, c. 9. § 4.

    Upon presenting any inland bill of exchange, if the party or parties on whom the same shall be drawn shall refuse to accept the same under the party's hand so accepting,

                                        the

    196 ABSTRACTS OF ACTS. [Append.

    the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested for non-acceptance, as m case of foreign bills of exchange; for which protest there shall be paid two shillings, and no more.

    3 & 4 Anne, c. 9. § 6.

    By this act it is provided that no such protest shall be necessary either for non-acceptance or non-payment of any inland bill of exchange, unless the value be expressed to be received, and unless such bill be drawn for the payment of twenty pounds sterling or upward.; and that the protest required by this act for non-acceptance shall be made by such persons as are appointed by the preceding act of 9 and 10 W. 3. c. 17. to protest inland bills of exchange for non-payment thereof.

    BILLS OR NOTES FOR GAMING CONSIDERATIONS,
    9 Anne, c. 14. § 1.

    "All notes, bills, or other securities whatsoever, given, granted, drawn, entered into, or executed by any person or persons whatsoever, where the whole, or any part of the consideration of such conveyances or securities shall be for any money or other valuable thing whatsoever won by gaming, or playing at cards, dice, table tennis, bowls, or other game or games whatsoever, or by betting on the sides or hands of such as do game at any of the games aforesaid, or for the reimbursing or repaying any money knowingly lent or advanced for such betting or gaming as aforesaid, or lent or advanced at the time and place of such play, to any person or persons so gaming

                                        as

    Append.] ABSTRACTS OF ACTS. 197

    as aforesaid, or that shall during such play so play or bet, shall be utterly void, frustrate, and of none effect, to all intents and purposes whatsover."

    BILLS OR NOTES TO BE CONSIDERED AS PAYMENT,
    3 & 4 Anne, c. 9. § 7.

    "If any person doth accept any such bill of exchange for and in satisfaction of any former debt or sum of money formerly due unto him, the same shall be accounted and esteemed a full and complete payment of such debt, if such person accepting of any such bill for his debt, does not take his due course to obtain payment thereof by endeavouring to get the same accepted and paid, and make his protest as aforesaid, either for non-acceptance or non-payment thereof."

    BILLS, NOTES, &c. FOR SIGNING BANKRUPTS' CERTIFICATES,
    5 Geo. 2. c. 30. § 11.

    Every bill, note, contract, agreement, or other security whatsoever, to be made known or given by any bankrupt or by any other person unto or to the use of or in trust for any creditor or creditors, or for the security of the payment of any debt or sum of money due from such bankrupt at the time of his becoming bankrupt and such bankrupt's discharge, as a consideration, or to the intent to persuade him, her, or them to consent to or sign any such allowance or certificate, shall be wholly void, and of no effect, and the monies thereby secured, or agreed to be paid, shall not be recovered or recoverable.

    STAMPS

     

    ABSTRACTS OF ACTS

     

    RELATIVE TO

     

    Stamps for Bills, Notes, etc.
    31 G. 3. c. 25.

    THIS act imposes a stamp duty on the paper, &c. on which any bill of exchange shall be written; but from the conclusion of the section it is directed that the duty shall be paid by the person making such bills. From the 10th section, imposing a penalty upon any person writing or signing a bill on unstamped paper; and from the 19th section, which provides that the paper, &c. shall be stamped before writing the bill, and prohibits the stamping it afterwards, it is sufficiently obvious that the legislature did not intend to extend it to bills drawn abroad.

    Sections 2 and 3 relate to the duties payable upon negotiable instruments; for which see Table of Stamps.

                                        Section

    Append.] ABSTRACTS OF ACTS. 199

    Section 4. "All notes and bills whatever which shall be issued by or on account of the Governor and Company of the Bank of England shall be freed and exempted from the stamp duties imposed by this act upon payment of 12,000l. annually into the Exchequer.

    Section 5. Nothing in this act to charge any draught or order for the payment of money to the bearer on demand, bearing date on or before the day on which the same shall be issued, and at the place from which the same shall be drawn and issued, and drawn upon any banker or bankers, or person or persons acting as a banker or bankers, and residing and transacting the business of a banker or bankers, within ten miles of the place where such draught or order shall be actually drawn and issued.

    Sections 7 and 8 regulate the duties payable upon notes re-issuable; for which see Table.

    Section 10. "Any person writing or signing, or causing to be written or signed, or who shall accept or pay, or cause to be accepted or paid, any bill, note, draught, or order, liable to any duties imposed by this act, without the same being first duly stamped in the manner therein prescribed, or upon which there shall not be some stamp or mark resembling the same, shall for every such offence forfeit and pay the sum of Ten Pounds. "

    Section 19. All vellum, parchment, and paper liable to any stamp duty in this act shall be stamped before any thing shall be engrossed, printed, or written thereupon; and no bill of exchange, promissory note, or other note or order liable to the duties imposed by this act, or any of them, shall be pleaded or given in evidence in any Court, or admitted in any Court to be good, useful,

                                        or

    200 ABSTRACTS OF ACTS. [Append.

    or available in law or equity, unless the vellum, parchment, or paper on which such bill of exchange, promissory note, or other note, draught, or order, receipt, discharge, acquittance, note, memorandum, or writing shall be engrossed, printed, written, or made, shall be stamped or marked with a lawful stamp or mark to denote the rate or duty, as by that act is directed, or some higher rate or <